E HEE COLE??? ii: 3‘ ii’IEFE URE RT WLQSPU? {C § %r§§‘EL gm: t1 ‘V -§li; mm“g” g;k ?a inn m ‘Agix‘rr LLI-agw r—as x a . wm N ‘i‘géai; a ] I i4. g3 2a En; bwl, M AX ME AH 53a 1 L1 — i: — f 3i Th‘ EH 2‘; iaaE§ {i afascm §§EE1Ei9 1'? i=4; Ra Fa §5, Qamag; §4§as wgraj s f -’-x:a§_ _._,. iaa 4x L452:— Ra¥gm€iii£§ ’EEEL§ u 3m? Razm J 1} _, _ ‘ . mmany Lfmgiecéi magEx $1393 g 3S ghcw “Gm, ahyam akéi 93:1 rig R- mg? $.61; L“; ‘.§:i€'&! faé‘ {hm 17’" {"i fag §1§§iizi ‘g'rrhn iE (’15:? 1%f f ‘ I 023/ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON’BLE DR. I.M.QUDDUSI 8: HON’BLE MR. G. MINHAJUDDIN, JJ. M.A. No.07l2005 Salik Ram Yadav and others 1 Vs Respondents Mahan Singh and others Appellant M.A. No.1 1/2005 V Appellant Salik Ram Yadav Vs Respondents Mahan Singh and others Present: Mr. A.L. Singroul, counsel for the appellants. Mr. Shailendra Sharma, counsel for respondent No.3. ORDER (Oran (6‘“ February, 2012). Per Dr. l.M. Quddusi, J; 1. These two appeals under Section 173 of the Motor Vehicles Act, 1988 have been tiled against the awards of the 11‘“ Additional Motor Accident Claims Tribunal (FTC), Raipur, dated 27.9.2004 passed in Claim Cases No.16/04 & 17/04 respectively, whereby both the claim petitions of the claimants have been dismissed. MA No.07/O5 has been tiled by the appellants/claimants due to death of Prashant Yadav, son of appellant No.1 Salik Ram Yadav, whereas MA No-1 1/05 has been filed by appellant/injured Salik Ram Yadav himself for compensation against the injury sustained by him in the same accident. 3. Brief facts of the case are that on 7.10.2001 Prashant Yadav was going to Village-Dedekhurd from Raipur by driving motorcycle Hero Honda bearing registration No.MP-23 (YA-4446), in which his father Salik Ram Yadav was a pillion rider. The vehicle was being driven with a moderate speed. However, when they reached near Punjabi ‘\ w ¢% Poultry Farm at Raipur—Kharora road, respondent No.1 came there from opposite direction driving truck bearing registration No. CG 04- 6062 (hereinafter referred to as “the offending vehicle”) in a rash and negligent manner and dashed the motorcycle of Prashant Yadav, as a result, Prashant Yadav and Salik Ram Yadav both sustained grievous injuries. However, Prashant Yadav succumbed to the injuries on the spot, whereas Salik Ram Yadav sustained fracture of left thigh bone, resulting in 45% permanent disability. The offending vehicle was, at the relevant time, insured with respondent No.3. . At the time of accident, Prashant Yadav was aged 25 years and was earning Rs.4300/- per month by working in Khera Networking System, Raipur, whereas injured Salik Ram, aged 6O years, was earning Rs.3000l— by doing'clerical work. . Therefore, with the aforesaid averments, the claimants filed two separate claim petitions under Section 166 of the Motor Vehicles Act, 1988 (in short “the Act, 1988”) before the claims Tribunal, i.e. one for compensation of Rs.45,00,000/— against the death of Prashant Yadav which was registered as Glaim Case No.16/04, and another for compensation of Rs.7,00,000/— against the injury sustained by Salik Ram Yadav, which was registered as Claim Case No.17/O4, under various heads. . However, learned claims Tribunal, after hearing counsel for the respective parties, considering the evidence adduced by the parties, by the impugned awards dismissed both the claim petitions. . Heard learned counsel for the parties and perused the LCR as also impugned awards. . From perusal of the impugned awards, we have found that the claim petitions have been dismissed on the ground that the deceased and the injured both were sitting on the motorcycle and no driving licence of the deceased and the insurance policy of the motorcycle was filed and further, that the insurance company of the motorcycle was not impleaded as a party. ’ . For the purpose of accident in question, the deceased as well as the injured were 3rd party and therefore, it was a case of accident of ‘ x rt Q? 3rd party. At the most, the Tribunal could have decided the negligence on the part of driver of the motorcycle, but instead of doing the same, the claim petitions have been dismissed for non— joinder of necessary party. 10.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 petitions as a civil suit and deciding the same only on the basis of pleadings or the evidence adduced by the parties. 11.ln the case of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996.,:.2010(12) Scale 265, the Hon’ble Supreme Court, in para-11, has held thus: “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‘e‘vident 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 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 lndian equivalent or other authorized texts) for understanding the medical evidence and \\; gg 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 disabiiity in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medicai terms, the Tribunai 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 clarincation 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.” 12. It was the duty of the Tribunal to conduct an enquiry in accordance with law and after conducting the enquiry, findings of fact should have been given. Even if necessary, criminal case record should also have been summoned. However, all this has not been done and the claimants have been denied the just compensation on the ground of non-joinder of necessary party, which is against the very purpose of the Act of 1988. 13.Therefore, in view of the above, in our opinion, the matter requires reconsideration at the end of the Tribunal. 14. ln the result, we allow these appeals in part, set aside the impugned awards and remit the matter 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. £7 15. Needless to mention that the patties 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. The Tribunal may also summon the record of the criminal case. 16. Parties shall appear before the Tribunal on 30th March, 2012. z 17. LCR shall be sent back to the Tribunal without further delay. t 18. No order as to costs. ‘ 19.Certified copy as per rules. Sd/- Sdl- G. Minhajuddin l.M.Quddusi Judge Judge