IN THE HON'BLE HIGH COURT OF CHHATnS6ARH AT BILASPUR (C.6.) M.A. rC^No. ll^ / 2011 APPELLANT/ CLAIMANT ^ ^ ^•-^•"^ /,^^ ^< ^/-^i/^ ^°y:/< ^" ^ yyy ^^€.^ Lal Mohammad S/o Mangru Ansari, aged about 46 years, Caste Muslman, Occupation- briver, R/o Agrasen Ward, behind Astbal. Ambikapur, P.S. and Tahsil Ambikapur, Distt. Surguja (C.6.) VERSUS RtESPONDENTS/ NON-APPLICANTS : 1. ./ Rajeshwar Rajwade, S/o Chamaru Rajwade, aged about 40 years, Hariprasad © Naar, S/o Chamru Rajwade, aged about 22 years. Both are resident of village Khala, Katkalo, Police Station and Tahsil Ambikapur, Distt. Surguja (C.G.) Oriental Insurance Company Limited, Branch Ambikapur, Ambedkar Chowk, Abmikapur, Distt. Sur9uja (C.G.) MISCELLANEOUS APPEAL U/S 173 OF THE MOTOR VEHICLE ACT. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant/ Claimant Respondents Non-applicants M.A.MNo. 119/2011 Lal Mohammad Vs Rajeshwar Rajwade and others r-\ ORDERFOR CONSIDERATION Sd/- Goutam Bhaduri Judge 2-2^-2011 HON'BLE SHRI I.M. QUDDUSI. J ^ y^ Sd/- I.M.Quddusi Judge ^.9.20.11 POST FOR ORDER ON 2-^SEPTEMBER. 2011 Sd/- G. Minhajuddin Judge .^^•'^^^ ^',:,^'^ "^ts /€ '^ 'lj. ? ts'ry&, 1 \TJ] wy HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.IVI.QUDDUSI & HON'BLE MR. G. IVIINHAJUDDIN. JJ. Appellant/ Claimant Respondents Non-applicants M.A.rdNo. 119/2011 Lal Mohammad Vs Rajeshwar Rajwade and others Present: Mr. Bhupendra Singh, counsel for the appellant. Mr. A. Dayal'Shrivastava, counsel for respondents No. 1 & 2. Mr. S. Agrawal, counsel for respondent No.3. ORDER (Passed on 2-*7 September, 2011) Per G. Minhaiuddin. J; 1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the award of the III Additional Motor Accident Claims Tribunal (FTC), Surguja, Distt. Ambikapur, dated 29.10.2010 passed in Claim Case No.05/07 whereby claim petition of the claimant for compensation under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") has been dismissed. 2. Brief facts of the case are that on 17.8.2005 at about 2.30 pm, Lal Mohammad after parking Mahamaya Bus of his employer in the garage, was going to his home on foot. At that time, respondent No.2 by driving a red coloured motorcycle Hero Honda (Sold) bearing company No. CG 15 D 8707, in a rash and negligent manner, came from the side of Basant Talkies, and dashed Lal Mohammad with full force, as a resultof which Lal Mohammad fell '2^ ,^' f' 'f... g iv^:m. i; ^ / ''%^^^ down and sustained injuries on his rightleg. The persons present therecaught hold of respondent No.2 and on enquiry, he told that the said motorcycle is owned by his brother i.e. respondent No.1. Thereafter, injured Lal Mohammad was taken to Shri Ram Hospital, Ambikapur of Dr. Sanjay Tripathi on rickshaw, where he was treated for the injuries. The right leg of the injured was operated upon and rod was inserted. On account ofthe said injury, Lal Mohammad has sustained permanent disability and is now unable to do his routine work. The injured/claimant has also averred in his application that he tried to lodge a report of the accident in Police Station - Ambikapur, but his report was not written by the police, therefore, he got himself treated and thereafter, submitted a written complaint to the Superintendent of Police, Surguja. However, no action was taken by the police on his written complaint also. Therefore, he filed a claim petition under Section 166 of the Act, 1988 before the claims Tribunal for a total compensation of Rs.3,65,000/- under various heads. 3. However, learned Tribunal, after hearing counsel for respective parties, after close scrutiny of the evidence adduced by the parties before it, dismissed the claim petition of the claimant on the ground that the injured/claimant has not been able to make out his case for compensation. 4. We have heard learned counsel for the parties, perused the LCR as also the impugned award. 5. The appellanVclaimant has alleged that on the date of accident i.e. 17.8.2005, he was working as a bus driver in Mahamaya Bus ^^iS^h. °\ Services, Ambikapur, Surguja. On the date of accident i.e. 17.8.2005, after parking the busin the garage of the employer, when he was returning on foot to his residence, that respondent No.2/non-appilcant No.2 came from the opposite direction driving a red coloured Hero Honda motorcycle, in a rash and negligent manner and dashed the appellant/injured, on account of which he received grievous injuries in his legs and fell down. He was immediately taken to hospital by the persons present on the spot. After the accident, respondent No.2/non-applicant No.2 driver of the motorcycle was caught on the spot by the persons present there and on enquiry, he disclosed that the motorcycle is owned by his brother respondent No.l/non-applicant No.1 Rajeshwar Rajwade. On medical examination, the knee cap of right leg of the appellant/injured was found fractured and he remained admitted in the hospital of Dr. Sanjay Tripathi at Ambikapur from 17.8.2005 to 21.8.2005. Subsequently, the appellant/injured got his treatment done at Bilaspur in the hospitals of Dr. Dheer and Dr. Lordikar. Immediately after the accident, the appellant/injured tried to lodge an FIR against respondent No.2, but the same was not written by the police of Police Station - Ambikapur. The appellant, thereafter, lodged a report of the accident orally before the Superintendent of Police, Ambikapur, but no action was taken. After this, the appellant submitted a written report in respect of the accident before the Superintendent of Police, Ambikapur. Even then no action was taken against the owner and driver ofthe motorcycle in question i.e. respondents No. 1 & 2. On the date of accident, the vehicle in question was insured with respondent No.3. The appellant has ,^T^^ ,;'-:,-^4S^ "%, ^/€..^.2 1 1 'SSSh 1 :^S-:r-^^ o averred that about Rs.50,000/- has been spent on his treatment and even after that, he is not in a position to perform the work, which he was performing before the accident and has become disabled. 6. Respondents No. 1 & 2 have filed a joint reply refuting all the averments of the claim petition as false and baseless. Respondents No. 1 & 2 had averred that at the time of accident, the appellant was driving a scooter and had slipped and fell down, on account of which he had received injuries. However, with an intent to extract the amount in the form of compensation, that a false case has been presented by him. 7. Respondent No.S/insurance company has also filed its reply refuting all the averments of the claim petitions and in the alternative, has averred that at the time of accident, the vehicle was being driven in contravention of the terms and conditions of the insurance policy and the driver/respondent No.2 was not having a valid and effective driving licence. Therefore, respondent No.S/insurance company is not liable to indemnifyrespondentNo.1 in respect of the amount of compensation. 8. The appellanVclaimant in support of his claim petition has examined himself as AW-1, Vifal as AW-2 and filed documents Ex.P/1 to P/11. The date of accident has been shown as 17.8.2005 and the written report before the Superintendent of Police was lodged on 29.8.2005. The report Ex.P/1 has not been got proved by examining any of the officials of the office of Superintendent of Police. Regarding treatment, documents Ex.P/2 to P/11 have been filed, but none of the doctors have been examined for proving the same. '^ I From the document of Ex.P/11, which has been issued by Dr. Sanjay Tripathi, Orthopedist Surgeon, Ambikapur, on the date of accident itself, it is clear that apart from other injuries, the appellant had sustained fracture of patella of right knee. 9. In view of the above facts, it is clear that the claims Tribunal has not discharged its duties by conducting a proper enquiry, as enjoined upon it under the provisions of Sections 168, 169 of the Act, 1988 and Rule 226 ofthe CG MotorVehicle Rules, 1994, for ascertaining the truth, to award just compensation to the claimant. In deciding the applications for compensation under Section 166 of the Act, 1988, the claims Tribunal has not to act as an umpire as in a civil suit but as an active explorer and seeker of truth for ascertaining the fact with a view to award just compensation. At this stage, it would be appropriate to quote what the Hon'ble Apex Court has observed in para-11 in the matters of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Scale 265: "Para 11 The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular theextent 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 claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary 6 and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 10.1n view of this, we are of the considered opinion that the matter needs to be remitted back for reconsideration at the end of the claims Tribunal. 11. In the result, the appeal is allowed in part, the impugned award is set aside and the matter is remitted back to the claims Tribunal with a direction to conduct a proper enquiry as per provisions of Sections ^ 'JjRptSSiWWfl'S^^' 168, 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994 and then pass an award afresh, as early as possible, preferably within a period of three months from the date of appearance of the parties before it. 12. 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. Is.Parties shall appear before the Tribunal on ....^.'^). 14. LCR shall be sent back to the Tribunal without further delay. 15. No order as to costs. 16.Certified copy as per rules. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge K/ a