BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BIIASPUR MISC. APPEAI.(C) N0.1^3 OF 2007 APPEAL TJNDER SECTION 173 OF MOTOR VEHICLES ACT 1988 (Appeal valued at Rs. 10,32,456/-) APPELLANT NON-APPLICANT N0. 5 The New India Assuran< Co. Ltd.,- Divisional Office, Rajendra Nagar, Bilaspur (Chhattisgarh) KESPONDENT N0. 1 APPLICANTS •u KESPONDENT N0. 2 NON-APPLICANT N0. 1 ' VERSUS (a) Smt. Mandakini, W/o Late l^ Lakhanlal Yadav, aged 33 years (b) Ku. Gangotri, D/o Late ?s Lakhanlal Yadav, aged 14 years :c). X. (d) fL (e) (f) K. Rakesh S/o Late Late ^i" Lakhanlal Yadav, aged 10 years Ku. Puja, D/o Late" Lakhanlal Yadav, aged 6 years Vikas S/o Late Lakhanlaf'^ Yadav, aged 4 years Mitesh S/o Late Lakhanlal Yadav, aged-'r year (g) Laxmi Prasad S/o Mahesb-^' £. Ram, aged 62 years (h) Smt. Jhunia Bai W/o'-^" <?- Laxmi Prasad Yadav, aged 58 years (Applicants no (b)to (f) ar< min'br through their mother Mandakini Yadav W/o Late Lakhanlal Yadav, All R/o of Village Araiband, P.S. & Tehsil -. Takhatpur, Distt. Bilaspur (CG) ABhijeet S/o Bhagwat-^' Prasad Kashyap, R/o ' Nigarband, Tehsil Takhatpur, Distt. Bilaspur (CG) (Driver of Maruti Van No. CG-16- ZD/0874) RESPONDENT N0.3 NON-APPLICANT N0. 2 / fL- RESPONDENT N0. 4 NON-APP1ICANT N0. 3 KESPONDENT N0. 5 NON-APPLICANT N0. 4 ^ Rajendra Poddar, S/o R.N. Poddar, (Civil Contractor) R/o Manendragarh, Distt. Koriya (Owner of Maruti Van No. CG-16-ZD/0874) The oriental Insurance Co. . Limited,through Branch Manager, Branch Office, Ambedkar Chowk, Manendragarh Road, Ambikapur, Distt. Ambikapur (C.G.) Hemant Singh, S/o Diwan Singh, M/s Bhaiyaji Sweets, Near Shiv Talkies, Bilaspur (CG), -^.QCLQ^ 1. y'hF^ 11:V 1^ !t E.. ~^SI / 'Q. lii\. £1 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. MA.rc1No.1223of2007 Appellant Non-ApDlicant No.5 Resoondent No.1 Applicants Vs The New India Assurance Co. Ltd. Bilaspur (CG) Smt. Mandakini and others Present: Mr. Dashrath Gupta, counsel for the appellantrtnsurance company. Mr. Goutam Khetrapal, counsel for respondents No. 1(a) to 1(h). Mr. Ravindra Agrawat, counsel for respondent No.3. Mr. CD Sharma, counsel for respondent No.4. ORDER (Orall (11th October, 2011) Per I.M. Quddusi. J; 1. This appeal under Sectton 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/insurance company against the award of 8th Motor Accident Claims Tribunal (FTC), Bilaspur (in short "the Tribunal"), dated 7th September, 2007 passed in Claim Case No.04/06, insofar as it has fastened the liability upon the appellant/insurance company to pay compensation to the claimants. 2. Brief facts of the case are that on 7.7.2005 Lakhanlal Yadav was going to his Village - Araibandh from Takhatpur on the scooter bearing registration No. MP-23-K/5644, which was being driven by his friend Taran Das with a moderate speed on the left side of the road. As soon as they reached near Ratan Aara Mill, respondent No.2 by driving Maruti Van bearing registration No. CG-16-ZD/0874 (hereinafter referred to as "the offending vehicle") rashly and negligently, dashed the said scooter, as a result of which Lakhanlal and Taran Das fell down. Lakhanlal sustained grievous injuries over head, nose, ear and other parts of the body and was taken to CIMS Hospital, where he died. Report of the accident was lodged ^:-lts^ ^ 2- at Police Statlon - Takhatpur against respondent No.2 whereupon Cr.No.193/05 for the offence under Section OMA of the IPC was registered. After completing investigation, charge sheet was fited against him before the concemed Court. 3. At the time of accident, the deceased was 35 years of age and was eaming Rs. 300-400 per day by doing the business of dairy. Therefore, the claimants, who are widow, children and parents of the deceased, being his legal heirs filed a claim petitiCTi under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988"} for a total compensation of Rs.13,25,000/- against the death of Lakhanlal Yadav under various heads. 4. However, leamed Tribunal, after hearing counsel for the respective parties, on close scrutiny of the evidence, oral and documentary, adduced by the parties, awarded a total compensation of Rs.10,32,456/- in favour ofthe claimants, fastening the liability upon the appellant/insurance company. 5. Heard learned counsel for the parties and perused the Lower Court Record (LCR) as wellas the impugned award. 6. Upon perusal of the LCR, we have found that an application under Order 11 Rule 12 ofthe CPC was moved by the appellant/insurance company for production of driving licence and frtness certtflcate of the offending vehicle. Opportunities to give reply to the said apptication were given by the Tribunal on 22.12.2CK%, 16.1.2007 and thereafter, on 27.1.2007, but no reply was given. However, it appears that against the owner ex-party proceedings were held. 7. In view of the above fact, when it was not known as to whether the driver was having a driving licence and from where the drivif^ licence was issued, the insurance company could not have produced evidence of the concemed RTO and it was beyond the control of the insurance company and therefore, the insurance company could not have been heki liable to pay compensation. The Tribunal should have issued notices to the owners and driver of the offending vehicle to produce the driving licence and if they failed to produce, an adverse inference should have been drawn against them. Here, dispute regarding ownership of the vehtele is also involved and the same was also liable to be decided by the Tribunal byconducting proper enquiry. However, that has not been done. 8. Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicles Rules, 1994 provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation. Therefore, we are of the opinion that the Tribunal was not justified in treating the claim petition as a civil suit and deciding the same only on the basis of pleadings or the evidence adduced by the parties. 9. tn view of the above facts and circumstances, we are of the opinion that the Tribunat was not justified in deciding the claim petition in the absence of material evidence, which could have been procured, as mentioned above. Therefore, in our opinion, the matter requires reconsideration at the end ofthe Tribunat. 10. In the result, we allow the appeal in part and remit the matter back to the claims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall also conduct an enquiry into the claim for determining the just compensation, as provided under Sections 168, 169 of the Act, 1988 and Rule 226 ofthe CG Motor Vehicle Rules, 1994. 11. Parties shalt appear before the Tribunal on 28th November, 2011. 12. LCR shall be sent back to the Tribunal without further delay. {,'' 13. The amount which is in deposit, if not already disbursed, shall be kept in fixed deposit in a nationalized bank for a period of one year. However, if the amount has been disbursed, the same shall be subject to the decision to be taken afresh by the Tribunal. 14. No order as to costs. Sd/- I-M.Quddusi Judge Sd/- G. Minhajuddin Judge ^!