L.;!'-*^U f^f'.^. SSST rfntsS° ?^'„S'!-J A ^T""'5G°-fs*°'A3^-t-' S^.T 091 Ai£lgSS (S'S riiQM pOURT Or CMMARTTISGARH AT B^LASPUR '2<3; uoram:' Hon'bleiVIr.T.P.Sharma& Hon'ble Mr. R.N. Chandrakar. JJ •(.•isiliTiant =i,3^, ^ i"s-?*-* Jo?-;n'i ^if" ll i'll:'t^i •„ &l&l a .1 ^a'vsfV Smt Geeta Kashyap, w/o Lats Shri Ashok Kashvap, aaed about di R'o Mohsiia Bramha i-\oau, i-'oiice si'iavwi & iai"isii Ambilc3Dyr. Olstrlct Surciuls 'fCO) V '^'i ^i^.; **^^f .^w -^ i ^ .: \-£.i^CF; s'ul; d ''^Gii'.i, '•^•f'w i'\..i'lli.i liuf'^.iS.S, aged about 40 years, Proprietor r^ c West. Csrofi" •lw?^, •] '^ ^ j r:;Q£i< Mohslls Tstibsndh Nsci^r. R^IDU^ //"»•<f~s '•• iCUi »-•' ?nici@ aeannft f!is0, f^- ,-^~'- /** .^ /'£?/^''?'/^s c? r\£<hi Q; S/o Rasram Sahu, aged about 45 years, R/o Vii'age Ratakhar, Po!;ce Station City Kotwaii, Korba Districi Korba ,/r^f~';,\ \D!W3!^^f^ffending vehide bsartnQ .CG.04/6070} The Orientai tnsurance Company Limited. through its Branch in front of Adarsh Baiinandir. Main Road. Dhamtari. Dlstrict Raiour '.'"^./'^.\ fffl ^^ ^>,,^ r^^, ^^ TS^ ^k.^.^. -.- '^L .?f.'^^. ^ ^tL ^ '^. ^ .^vA IOH 11 •s OT s.ns iviozor vsn^c^ MCI Shri yikrsm Dixit. counssl for ths aDos! srit snn yuciiiir Agrawal, counsel for the i'esponeient No.a. Orai Order (Passed on 18"'ofFeb"'a!y, 2C'!0) -S. h • •s^t i idi i. ^ ^^ L^iiauSHQS IH ^niS 3ppS31 ]3 10 1^9 • ulSmiSSSI OT 3W^fC QS^SCl UO.U^.ZUU^ R8SSSQ Oy IH& 3!] ACiCsuGHSI IVIO'iX^f ACCiQSHi, LfieimS I uDUHSI \i" .1 ^/} £?urQuj^jA.mDiKspur ^uy^ ^iisnc£!0j''?ji lus l nDuns;} in ciairiis csss t: .'^-. No.31/2006, wherebythe claim petition was dismissed on the ground that thedeceasedwasnegiigentatthetimeofaccident; • (2) The award is impughed on the ground that the Tribynal has not considered the fact that the'deceased was not negligent and the driver of the vehiele was negligent in drivinathe vehicle, which led to the aceident. l(3) Brieffacts necessaryfordisposal ofthis appeal are that on^account ;of death of Ashok Kashyap, son of the appellant in a motor aecident, the presentappellanthasfiledthisclaimpet!tionagainsttherespondents. l(4) Afier providina opRortunity pf hearing to the parties, the Tribunal has dismisaed the petition pn the groundthat the deceased himself has taken out his head out of the vehicle at thetime of accident, therefore, the present appeilant is not entitled for any compensation. ;(5) Learned counset for thie appellant^submits that the deceased has :not taken out his head from the running vehicle and then, it was theiduty :of the driver to drive the yehicle safely.andi therefore, on account of jriegligencie on the part of the driver,.dismissal pf the petition was not justified. [ (6) Shri Sudhir Agrawa!, learned coynsel for the insurance.cornpany vehementiyopposedtheappealandsubmittedthattheclaimpetitiQnhas rightly been dismissed bytheTribunal on accountofthe negligence ofthe deceased. .: [ (7) We have heard learned counssUfbr the parties, perused the impugned award and recordofthe Courtbelow. Thisja acase ofaccident between two vehicies. This is admittea fact that atthe time of aecident, the deceased has taken out his head from the vehide, even then, itiwas the duty of the driver fo drive carefuliy and if the accident had not been taken place; the deceased could not have died. The Tribunal has not considered this aspect ofthe case and held that taking out ofthe head, i.e. a part ofthe body frorn the vehicie showsWe. negligence ofth&deceased. ,0n this ground, the dismissa! of the claim petition is not sustainable under thel^w.'. ' ; , - ;. ,: ,: • • •\ .,' ' • '. :.<s: ^y (8) Conseqyently, the impugned award is set aside. . The case is remitted backtto the^Qourt of^U^A^ Tribunal (FTC) Surguja, Ambikapur (GG) for providing opportunity of hearing tQ'the parties ^nd for aciducjng evidencs^^ their support .and deeiding thecase affesh. Parties aredirectecl to present before the Court, df II! Additiohal Motor? ^Acciyenf Claims Tribunal (FTC) Surguja, Ambikapi.irCCOon 15.04.2010. ! . (9) Record ofthe Court beiowand copy ofthisjudgmentbesentto the Oourt concerned, immediatety. No order as tocosts; Sd/- T.P. Sharma Judge Sd/- Rangnath Chandrakar Judge ^-?..