IN THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.l M.A. (Cl N0^£l.^,../2007 DlVJSJOn MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 APPELLANTS IJ0N-APPLICANTS OWNER SB DRIVER (1) ...^^^•^ .(2) s-;:^^' P. Sameshwar Rao aged about 43 years S/o P. Somal R/o Village Near Gudhakhu Factory of Shankar Agrawal, Occupation Contractor, Vehicle Owner, Bilaspur (C.G.) Pawan Kumar Nishad Aged about 42 years S/o Jagan Nishad Occupation Driver R/o Nayapara, Chuchuhiapara Bilaspur (C.G.) VERSUS RESPONDENTS ^^- Master Vikas Singh Aged about 17 years S/o Rudra Kumar Singh Occupation-Student R/o Village Nariyara, Tahsil Pamgarh District Janjgir- Champa (C.G.) applicant is minor through applicant Guardian father Rudrakumar Singh, R/o Nariyara, Tahsil Pamgarh, District Janjgir Champa (C.G.) Claim in Appeal for setting aside the award valued at Rs. 4776,000/-, (Court fee af'fixed Rs. T5/-) Note: Receipt reg^rding deposition of Rs. 25,000/- as required u/s 173 ofthe Act, 1988 is being filed herewith. teff^^'"" Being aggrieved by award dated 11/05/2007 in Claim Case N*^! 13/2005 passed by^Upper Motor Accident Claims Tribunal (FTC), Janjgir, the appellants/non applicants prefer this miscellaneous appeal on the following facts and grounds: © HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (QNo. 992 of 2007 Appellants P. Sameshwar Rao & another Versus Respondent Master Vikas Singh APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Honl3le Shri I. M. Quddusi 8& Hon'ble Shri Prashant Kumar Mishra, JJ Shri Sanjay S. Agarwal, Advocate with Shri Vivek Shrivastava, Advocate for the appellants. Dr. Rajesh Pandey, Advocate for the respondent. ORDER (Oral) ( Passed on this 25th day ofApril, 2011 ) • Per I. M. Qiiddusi, J. 1. This appeal has been filed by the appellants (owner and driver) against the impugned award dated 11.5.2007, passed by the Additional Motor Accident Claims Tribunal, Janjgir in Claim Case No. 113/2005, awarding a sum of Rs. 4,76,000/- to the claimant along with interest. 2. We have heard learned counsel appearing for the appellant and perused the lower Court record as well as the findings given in the impugned award. 3. Brieffacts, in nutshell, are that on 10.2.2004 the claimant (Vikash Singh) was going on bullet motorcycle, bearing registration No. H.R. 29-G/0732 from Podhi Akaltara to Mulmula, along with his cousin brother Yashwant Singh. The motorcycle was being driven by Yashwant Singh and the claimant was a pillion rider. On the way a dumper, bearing registration No. C.G, 10-A/0113, which was being driven in a rash and negligent manner by the non- applicant Nd.l (Pawan Kumar Nishad) dashed the motorcycle. As a result of this accident Yashwant Singh, who wasv!driving the motorcycle as well as Vikas Singh, who was sitting as pillion rider, received grievous injuries. Later on, during the treatment ^ f/-s\ ^- 8. <^ Yashwant Singh succumbed to the injuries. The matter was reported in the Police Station - Sarkanda, Bilaspur in regard to death of the deceased. <The report of the accident was lodged by Lal Singh Kshatriya in the Police Station Pamgarh. It is alleged that though the accident was caused by the vehicle, bearing registration No. C.G. 10- A/0113 but the police had seized another vehicle bearing registration No. C.G. 10-ZB/0413. The claimant/injured filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for 'award of a total compensation of Rs. 36,95,994/- under various heads. Learned Claims Tribunal, having regard to the facts and evidence on record held that the accident was caused due to the vehicle, bearing registration No. C.G. 10-A/0113, the same was not insured and awarded a total compensation of Rs. 4,76,000/- along with simple interest at the rate of 6% p.a. from the date of the application i.e. 4.3.2005 till the payment is made. It has been further directed that if the amount of compensation is not deposited within two months the amount of compensation shall carry interest at the rate of 9% per annum. On close scrutiny of the evidence and inspection it was found that it was the vehicle bearing registration No. C.G. 10-A/0113, by which the accident was caused/Therefore, there is no scope to say that the accident had taken place from the other vehicle, bearing registration No. C.G. 10-ZB/0413. It is evident that since the appellant is the pwner of both the vehicles but as the vehicle No. C.G. 10-A/0113 was not insured and the vehicle No. C.G. 10- ZB/0413 was insured, therefore, just to save him from payment of liability of compensation the plea has been taken, which is contrary to the result of the investigation. Therefore, this plea is not valid and the same is not available to the appellant. The claimant was injured and was a pillion rider. Though the Medical Board had issued a certificate, Xerox copy of which was flled and was marked by the Tribunal as Ex.A/1 but none of the members + of the Medical Board have proved the disability certificate and the non-applicants could also not get an opportunity to cross-examine. The disability was only shown to •^ A 1— 9. 10. 11. 12. 13. 14. ^3 the extent of 'post traumatic alkalosis (Rt) knee 40% fourty percent' but it has not been mentioned whether it was a (permanent? or 'temporary' disability. The Tribunal treated disability of the injured/claimant to the extent of 40%, that too <permanent? disability. Other treating doctors/Medical Officers have also not been examined. Therefore, to our opinion assessing the loss and directing to pay compensation on that basis was not proper without examining any Member of the Medical Board and the treating Medical Officer. HonTDle Supreme Court in Raj Kumar Vs« Ajay Kumar & another { 2010 (12) SCALE} in para 11 has held that "The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim9 for deterTnining the (just compensation\ In view of the above, we are of the opinion that the Tribunal should not have treated the claim petition as a civil suit as it is the duty of the Tribunal to conduct an enquiry as provided in Section 168 of the Motor Vehicles Act, 1988 and Rule 226 of the M.P./C.G. Motor Vehicles Rules, 1994. For the reasons stated herein above, we allow this appeal in part, set-aside the impugned award dated 11.5.2007 and remit back the matter to the Tribunal for decision afresh in^ view of the observations made hereinabove. No order as to costs. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verifled etc. Parties shall appear before the Claims Tribunal on 12th May, 2011. The lower Courts record shall be sent back forthwith. Thakur Sd/- I.M.Quddusi Judge s^- Prashant Kumar Mishra Judge