IN THE HON'BLE HIGH COURT OF_CHHATnSGARH AT BILASPUR fC.G.1 M. A. (C} N0. I 2~(V^QF_2Q07 APPELLANT CLAIMANT Nanda D/o Kaman Das, Caste Sindhi, aged about 42 years, Resident of Koshtapara Dhamtari, District Dhamtari (C.G.). VERSUS ^-^ RESPONDENTS : 1., Mohd. Firoj Khan Son of Latif Khan, aged about 30 years, Resident of Village Gujra, Tahsil ^y . . ^u^T'i ^•'\V\ Balod, District-Dhamteri (C.G.). ^""^•^^' ..•••'''^.^'J^y 'l-e The Manager, Durg Roadways - '^•''.YA"2'- y' ^'"^weyy ^' Private Limited, G.E. Road, Durg, .^•' DistrictDurg (C.G.). 3. The New India Insurance Company Limited, Branch Office Durg (C.G.). 4. ^ Rajkumari Khobchandani Wife of Kanhaiyalal, Resident of Nagar Nigam Colony-194, Ramsagarpara, Raipur, District Raipur (C.G.). 5., Usha Matlani Wife of Naresh Kumar Matlani, Resident of Old Rajendra Nagar, Raipur (C.G.). HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON'BLE I.M. QUDDUSI & HON'BLE G. MINHAJUDDIN, JJ MISC. APPEAL (C ) No. 1245/2007 Vs. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 APPEARANCE: Mr. PP Sahu, counsel forthe appellant. ORDER(ORALl (23rd August, 2011) Per I.M. QUDDUSI, J. This appeal has been filed by the claimant against the award dated 20th July, 2007 passed by the Motor Accident Claims Tribunal, Dhamtari (C.G) (in short "the Tribunal") in Claim Case No. 103/06 dismissing the claim petition. 2. Brief facts of the case are that the appellant/claimant is the real sister of deceased Vijay Kumar. On 6.2.2005 at about 4- 5 pm, deceased Vijay was going to Raipur along with his friend in Santro Car bearihg registration No. CG 04 ZP 3022. At that time, respondent No.t^, who was coming from opposite direction, by driving the vehicle i.e. Bus bearing registration No. CG 07 E 0139 in a rash and negligent manner dashed the Santro Car and caused accident. Vijay and his friend died on the spot on account of injuries sustained in the accident. I" '-\ APPELLANT Nanda Claimant RESPONDENTS Mohd. Firoz Khan and others /,.-s"s\ ?%»3 <>- // £y^y Report of the accident was lodged by the eyewitnesses in Police Station: Arjuni, whereupon Cr.No.35/05 was registered against respondent No.1 for the offence punishable under Sections 279, 338 and 304A of the IPC. After completing investigation, charge sheet was filed against him in the Court ofChiefJudicial Magistrate, Dhamtari. 3. At the time of accident, the deceasedwas 26 years and was earning Rs.4500 to Rs.5000/- per month by doing the business of readymade clothes. In addition to this, he was also getting Rs.3000/- to Rs.4000/- from the business of auto dealing. Thus, his monthly income was about Rs.7000/- to Rs.8000/-. The claimant is the real sister of the deceased and she was fully dependent upon him. Though the claimant is married but since her husband is not able to work due to illness, she was dependent upon the income of his deceased brotherVijay Kalwani. 4. With the aforesaid averments, the claimant filed a claim petition under Section 166 and 140 ofthe Motor Vehicles Act, 1988 (in short "the Act, 1988"), for compensation of Rs.18,50,000/- under Section 166 of the Act, 1988 and Rs.50,000/- under "No Fault Liability" under Section 140. 5. However, learned Tribunal, after hearing counsel for the parties and scrutinizing the evidence, oral and documentary, on record, by the impugned award rejected the claim petition of the appellant/claimant. 6. We have heard learned counsel for the parties, perused the Lower Court Record (LCR) as also the impugned award, ^y^^, 7. Upon perusal of the LCR, we have found that relationship of the deceased with the claimant could not be proved, though the claimant had filed a certificate i.e. school leaving certificate in support of her contention and proved it herself, but the Pradhan Pathak (Head Master) of that school was not summoned to ascertain the truth. 8. As per provisions of Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994, the Tribunal is duty bound to conduct an enquiry for ascertaining truth for the purpose of awarding just and proper compensation. However, the same has not been done in the present case. At this stage, the observations of Hon'ble the Supreme Court in the matters of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Sca/e 265, in para-11, are relevant, which are reproduced as under: "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 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 daim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and co.rre.et 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 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." 9. Therefore, the Tribunal should have ascertain the fact and should not have thrown away the claim petition on the ground that the school leaving certificate filed as Ex.P/6 by the claimant was not proved by the htead Master of the school concerned. . . / 3 ^ 10. Further, in any case, the Tribunal should have considered the question of grant of loss of estate, as has been laid down by the Hon'ble Supreme Court in case of Smt. Manjuri Bera Vs. The Oriental Insurance Company Ltd., and another in Appeal (Civil) No.1702/2007, decided on 3C^ of March, 2007, relying upon the decision rendered in Custodian Branches of BANCO National Ultramarino V. Nalini Bai Naique (AIR 1989 SC 1589), that "The definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir, competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons whb represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative." In Smt. Manjuri Bera's case (supra), the Supreme Court has further relied on a decision rendered in Gujarat State Road Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai and another (AIR 1987 SC 1690) and observed that "a legal representative is one who suffers on account of death of a person due to a motor vehicle acddent and need not necessarily be a wife, husband, parent and child." 11. In view of the above mentioned facts and law, we are of the opinion that the Tribunal was not justified in dismissing the K/ 6 12. 13. 14. claim petition, without conducting an enquiry, on the ground that claimant is not the legal representative and as such, not entitled to get compensation. In view of what has been stated above, we are of the opinion that the findings given in the impugned award are liable to be set aside. Therefore, we allow this appeal in part, set aside the impugned award dated 20 July, 2007 and remit the matter back to the Tribunal for decision afresh in the light of observations made above. Needless to mention that the Tribunal shall provide opportunity to the parties to amend the pleadings, adduce further evidence, if any, file the documents or get the documents verified ete., and thereafter it shall decide the claim petition afreshat the earliest in light ofthe observations made herein above. Parties shall appear before the Tribunal on 29 September, 2011. 15. The records of the Tribunal shall be sent back without further delay. 16. No order as to costs. 17.. Certified copy as per rules. Sd/- I.M.Qiiddusi Judge Sd/- G. Minhajuddin Judge E: frc '"'-'*-•