APPELLANT IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C)No.- g^ /2010(D.B.) ogvteionBer :- INSURANCE COMPANY - THE ORIENTAL INSURANCE COMPANY LIMITED, BEHIND ADARSH BAL i -. MANDIR, NEAR PANJABI GURUDWARA, S"l^DHAMTARi, OlSTRICT DHAMTARI C.G. Vrs. RESPONDENTS/CLAIMANTS :- \s. ,,-,*• {^ ^-e^ ^' <-,1. ^2. (-3- ^4. SMT. BHAGWATI PATEL W/0 LATE SANTOSH PATELAGE 24 YEARS, CASTE MARAR KAUSHALPATEL S/0 SANTOSH PATEL, AGE 04 YRS. MINOR, THRQUGH GUARDLAN MOTHER BHAGWATI PATEL W/0 LATE SANTOSH PATEL SHRI MURHARAM PATEL S/0 LATE MEHATTAR RAM PATEL, AGE 50 YEARS SMT. TIJOBAI W/0 MURHARAM PATEL, AGE45YEARS, ALLAPPLICANTS, RESIDENT VILLAGE KODABHATH, DISTRICT - NORTH BASTER, KANKER, C.G. RESPONDENTS/NON-APPLICANTS :- ^- 5. VEHICLE DRIVER - NEERAJ DAVE S/0 LATE ANIL DAVE, ADDRESS, RESIDENT AAMAPARA, KANKER, DISTRICT - U.B. KANKER, C.G. 6. VEHICLE OWNER - SMT. ILAGORI DAVE W/0 SHRI NARENDRA DAVE RESIDENT AAMAPARA, KANKER, DISTRICT - U.B. KANKER, C.G. APPEAL UNDER SECTION 173 OF MOTOR VEfflCLE AGT 1988 APPEALVALUEDRs.5,18,000/-(APPEALBYINSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNAL Rs. 13,25,320/- AWARDED AMOUNT BYTRIBUNALRs. 5,18,000/-_^^ ..2.. ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bteShri I.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mishra, J. APPELLANT I.A.(ClNo.850of2010 Insurance Company- The Oriental Insurance Company Limited. Versus RESPONDENTS Smt. Bhagwati Patel and others. Shri SudhirAgrawal, counsel forthe appellant. Shri Manoj Chouhan,counsel for respondente No. 1 to 4. Shri Yogesh Chandra, counsel for respondents No. 5 & 6. ORALORDER (30/03/2011) Following oral order of I. M. Quddusi. J. the Court was passed by This appeal has been filed by the Oriental Insurance Company Limited against the impugned award dated 25/02/2010 passed by the Motor Accident Claims Tribunal, Kankeci, District - Uttar Bastar Kanker (C.G.) in Claim Case No. 56/2009 challenging thesame interalia on the ground that there was no evidence to prove that the accident occurred with the vehicle in question, and also on fte ground of wrong rejection of the application for permisslon under Section 170 of the Motor Vehicles Act. The Tribunal passed the award inter alia on the ground that the driver of the offending vehicle was not produced before the witness box and as such adverse inference was drawn. 2. Brief facts of the case, as narrated in the claim petition, are that on 08/10/2008 deceased Santosh Patel along with his friends Birendra Mandavi and Pawan Vatti were going on Hero Puch motorcycle to Makdi Dhaba for taking food. Deceased Santosh Patel stopped for natures call near Govindpur Breaker and at that time one Tata Indica Car bearing registration No. C.G.05/A-8002 whioh was driven rashly and neglgently b\ non-applicant No,1 dashed Santosh Patel and caused the accident. He received injuries on his right leg and head. He was admitted to Komaldev Hospital, Kanker. As there was no improvement, he was taken to Shriram Hosptel, l^nker and thereafter to Gurunanak Hospital.Raipur. As his finaneiat condition was not good he was brought back to village Kodabhata where he died on 20t February, 2009. Deceased was aged about 26 years. He used to eam Rs.5,000/- per month by doing the workof Baksry. Ctaimants have claimed compensation of Rs.13,25,320/-. 3 . Learned counsel for the appellant Shri Sudhir Agrawal has submitted that the driver did not appear to give evidence though a pfea was taken in the written statement that no accident was taken place from the vehicle which was being driven by him. 4. Section 166 (1) of the Motor Vehicles Act.1988 (for short 'the Act') provides that an application for compensation arising out of an accident of the nafatre specified in sub-section (1) of section 165 may be made by the persons mentioned fterein and Section 168 provides that on receipt of an apptication for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiiy into the claim or, as the case may be, each of the ctaims and, subject to the provisions ofSecUon 162 may make an award determining the amount of compensation which appears it to be just and specifying the person or persons to whom compensaBon shall be paid and in making the award the Claims Tribunal shall specify the amount which shalt be paid by Uie insurer or owner or driver of the vehicte involved in the accident or by all or any of them, as the case may be. 5. Rute 226 of the Motor Vehicle Rules; 1994 (for short 'the Rules') provkles for obtaining of information and documente necessary for !*«», -3- awarding compensation under Section 40. It specjfically provides that the Claims Tribunal shall obtain whatever information and documents which may be found necessary from the Police, Medical and other authorities and proceed to award the claim whether the parties who were gh/en notice, appear or not, on the appointed date. 6. In the case of Raj Kumar vs. Ajay Kumar and another reported in 2010 (12) Scale the Hon'ble Apex Court has held in paragraph 11 as under:- "11. The Tribunal shouM 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 functfon as a neutral umpire as in a cMI 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'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'." 7. We have perused the police case diary by summoning the record of Criminal Case No. 259/2009 State Vs. Neeraj Dave pending in the Court of Chief Judidal Magistrate, Kanker, District - Uttar Bastar Kanker (C.G.). The police recorded the statement of Ramesh Kumar S/o Sitamber Singh who had disclosed the registration number of the vehicle and was an eye wltness of the accident in question. Besides this one Rohit Yadav S/o Jangal Ram Yadav is also an eye w'tness ofthe accident. 8. Therefore, it was the duty of the Court to conduct proper enquiry and summon at least the said eye w'tness after seeing the police record. 'SisiSaftowii'l'.K-Lll." 1 SMSSI 3A;^^—-'s«? ^. -^ The driver of the alleged offending vehide should also have been summoned but the same has not been done. 9. In view of the facts and circumstances of the case, we are of the opinion that the Tribunal has not conducted proper enquiry and passed the award. 10. Therefore, we allow this appeal in part, set-aside the impugned award and remit ttie matter back to the Tribunal to decide the claim petition afresh after conducUng proper enquiry. 11. Needless to mention that the partiesshall be allowed to amend the pleadings, adduce further evidence, file documente or to get the documente verified ete. and thereafter claim petition shall be decided on merits afresh. 12. The parties shall appear before the Tribunal on 25/04/201 1. 13. If any amount has been deposited by the appellant, the same shatl be kept in fixed deposit in the Nationalized Bank for six months extendable from time to time till passing of the fresh award and if any amount has already been paid to the claimante, the same shall not be recovered and shall be subject to the orders passed afresh. 14. We also observe here that rejection of permission under Section 170 of the Motor Vehictes Act vide order dated 29/10/2009 is also set- aside. The application under Section 170 of the Motor Vehicte Act shall be considered afresh by the Tribunal. 15. Lower Court Record be sent back without further delay. SA'- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge ViS^sSSSSSS!ISWSt 'MSa»W»^^tSWMaii!»aase»SaW!S .':-^!