EN THE fflGH COURT OF JUDICATURE AT BILASPURfC.G.^ MISCELLANEOUS APPEAL N0. - ^^0 OF 2004 (MEMORANDUMOFAPPEAL U/S 1730FTHE MOTORVEmCLES ACT, 19SS) APPELLANTS CLAIMANTS / 1. Smt. Kavita Agrawal, W/o Late Shiv Shankar Agrawal, Aged about 24 years 2. Tanay Agrawal, S/o Late Shiv Shankar Agrawal, A'g/ed about 6 moaths (Onbehalfofappellant No. 2 through Legal Guardian appellant No. 1 ) Smt. Ramfcala Devi Agrawal, W/o Ramavtar Agrawal, Aged about 48 years All resident of - Through Shiv Kirana Stores, Tahsil - Bpdla, District - Kawardha (C.G.) Present resident of- Through Prakash Chand A^rawal, House No. - |106, Samta Colony, Raipur (C.G.) VERSUS RESPONDENTS I^ON-GLAIMANTS Goursingh Dhruv (Driver), Aged about 28 years, S/o Baisakhu Ram Dhruv, Resident of- VUIage-Bailandi, Tahsil- Nevra, Dist.- Raipur (C.G.) 2. M/s Agrawal Oil Extreiisioa Litd. »^5? (Owner), OfBce Address-Village- Ttolsi TahsU- Nevra, Dist. - Raipur (C.G.) 3. p^ United India Insuraace Company Ltd., '' ' Through Divisional Manager, Divislon Office - United India Insurance Company Ltd., Krishna Complex, Kutchery Chowk, TahsU & District- Raipur (C.G.) 1.^- Oriental Insuranee Company -Ltd., Through Dmsional Manager, Dreision « Oflice No.- 2, Oriental Insurance Company Ltd., Chawla TEeiqplex, Devendra Nagar Road, Tahsil f& District - Raipur (C.G.) i;fttiT. ;iiaia:i aii .d -2- ^i1 MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEfflCLES ACT, 1988 HIOH COURT OF CHHATTISGARH AT BIIASPUR MISC. APPEAL No. 670 OF 2004 APPELLANTS Smt. Kavita others Agrawal and Versus RESPONDENTS Goursingh Dhruv and ofhers DB:- HON'BU! SHRI I.M. QUDDUSI AND HON'BLE SHRI N.K. AGARWAL. J PRBSBNT:- Shri Shivendu Pandya, Advocate, for fhe appellants. Shri Praveen Dhurandhar, Advocate for respondent No. 1, Ghanshyam. Patel, Advocate for (he respondent No. 3. Shri Sudliir Agrawal, Advocate, for respondent No. 4. ORAL ORDER (5-5-2011) PBRl.M.JQUDDUSL J This appeal has been filed by the appeUants/claimants against the award dated 16-4-2004 passed by fhe Ist Addl. Motor Accident Claims Tribunal, Raipiir ui Claim Case No. 15/2003 dismissing fhe their claim petition. Facts of the case in brief are that on 10-11-2002, deceased Shivshankar Agrawal was going from Kawardha to Durg on his scooter bearing re^stration No. MP 23 EB 3315. Near Tamrakar Badi at Dhamdha-Durg Road, a truck bearing registration No. CG-04-ZB/0857 beinj driven by respondent No. l in a rash and negligent manner dashed the scooter, as a result of which Shivshahkar Agrawal died on spot due to the injuries sustained hi fhe said accident. The claimants bcing unfortunate widow, son and mother of fhe deceased preferred a claim petition under Section 166 of fhe Motor Vehicles Act, 1988 claiming Rs. 23,00,000/- as compensation for the death ofthe deceased. .."^^•'^^v ^l/ :i;;;, ••g^'* 6. Leamed Tribiinal disuiissed the claiin petition on fhe ground fhat the accident had not taken place with the toruck bearir^ registra.tion No. CG-04ZB/0857 being driven rashly and negligently by fhe driver of the truck. Leamed Tribiinal disbelieved the eye-wltness and held fhat it was not known as to who was driver of the ofifending vehicle and which was fhe ofiending vehicle involved in fhe accident. We have perused the record of the Tribunal and found that fhe written statenaent has been filed on behalf of fhe driver and the owner of fhe offendinR vehicle i.e. truck No. CG-04-ZB/0857 who have admitted the fact of accident and have not denied the same. Following lines ofpara. 10 of the written stateinent, are noticeable "The contents of para 25 are specifically demed, fhe applicants are residents of Dui^. The accident had talcen place at Dhamdha - Dui^ Road, fhe crimmal case is beiae tried at Durg. ............". Further in the claim petition, fhe claimants have described the place of accident in para 8 and mentioned the registration number of offendin^ vehicle and name of the msurance company in para 14, 15. and 16 of the claim petition, reply of which has been given that "the contents of paragraphs 8 to 17 are matter of record hence do not caU for any reply", which is deemed to be admitted. In para 8-a of fhe written statement in reply to fhe contents of para 22-A of the claim petition, only it was denied that the accident occurred due to negligence ofrespondent No. 1 i.e. driver. Therefore, stnce fhe fact ofaccident with the truck bearin^ re^stration No. CG-04-ZB/0857 has not been denied, there remains no issue to be decided. Therefore, treating that the accident had taken place wifh the truck bearing registration No. CG-04-ZB/0857, we allow this appeal ui part, set aside fhe impugned award ajt.tSti^-K.-Eir'"* \i -i';"""-^^ ;fli-'t'-'S.', 1:'K .-.arti8)> % 'vfs^"^. 1;' dated 16-4-2004 and remit fhe matter back to fhe Tiibunal for decision afresh on merit in the light of the observations made above. 7. The claim petition shall be restored to its original nuinber. The Tribunal shall frame fresh proper issues and after giving opportianity to adduce evidence or to inake ainendment in the pleading by the parties or to file documents or to vertfy fhe dociunents already filed, fhe claim petition shall be decided afresh in the Ught of (he observations made above. Police record shall also be summoned and shall also be taken in to consideration. 8. The parties present before fhis Court shaU appear before the Tribunal on 14th July, 2011. 9. Record of tbe Tribunal be sent back wifhout aay further delay. 10. No order as to costs. Sd/- LMQuddusi Judge Sd/- N.K.Agrawal Judge