F5AR;: ft'. '"~"i u ^ ]'•'.'. ^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISfiARH AT BILASPUR M.A.(C) No. /2009 ^Ss-^,•'•^' is^"S '^AS^t' APPELLANT DEFENDANT N0.3 ^,).^^^ ^•-^y^- •^^^-^yt< RESPONDENT CLAIMANT :1. IFFCO- ' TOKIO GENERAL INSURANCE COMPANY LIMITED, 34Nerhru Place,-New Delhi -110019 through the Branch Manager, Iffco- Tokio General Insurance Co.Ltd, 3 Floor 345-347, Lalganga Shopping Mal, G.E Road Raipur (CG) VERSUS Ashwani Kumar Bhaskar S/o Shri Radheylal @ Radheyshyam Bhaskar, Aged about 25 years. Resident of Harijan Mohalla, Jarhbhata, Police Station - Civil Line, Bilaspur, District - Bilaspur(C.G.). ^i^. RESPONDENT DEFENDANTN0.1 RESPONDENT DEFENDANT N0.2 Manoj Kumar Daharia, S/o Roopnarayan Daharia, Resident of Village- Guruwain Dabri, Police Station- Lalpur, Tehsil. - Mungeli, District - Bilaspur(C.G.). Bhagwat Prasad Khunte, S/o Vedram Khunte, Resident of Village- Surajpura Post- Kanteli, Tehsil.- Lormi District - Bilaspur ( C.G.). MJSCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT. 1988 Appeal valued at Rs 1,25,000/- Being aggrieved by the impugned Judgment and award dated 24-11-2008 passed by learned Sixth Additional Motor Accidenf Claims Tribunal, Bilaspur, h ..y-»: -1->!>» f^^B, ^ & Vv^^ "^nA,^ ^ HIQH COURT OF CHHATTISaARH AT BILASPUR M.A. ^'Cf N0. 1343 OF 2009 APPELi.fJiNT/ DE-FE-NDANT N0.3 RE3PONSENTS IFFCO Tokio Geiieral Iiisuraiice Company Lunited. Bhaskar and VerSUs Ashwani Kurnai' others. :l"x.- APPEAL UNDBR SECTION 173 OF THE MCTOR VBHICLES ACT. 1988 Sin^ie Benca: Hon'ble Shri G. aSinliaiuddin. J. Presents Shri Vikrant Stiigh, counsel for the appeUant Sliri Goutam Khetrapal, couiisel for respondent Nn.1 None lor ofher respondents. ORAL ORDBR (Passed oa 14th day ofJi?-ly, 2011) This appeal has been ffled under Section 173 of tue Motor Veliicles Act (for short the Act) against fuc impugned award dated 24-11-2008 passed by Sbi.fh Auuitional Motor Accident ClaLiiis Tribunai, BilaspLu" (tor short tiie Clau-us Tribmial) m Claim Case No.58/2008 fasteriing liability to pay fhe amoLUit of coinpensatlon on the appellant/Insui'ance Conipaiiy JoinLly aiid severaliy along with the driver I'espondent No.2 and owner respondent No.3. 2. Brief facts of the case as projected by fhe claitiiaiit ai'e fhat the appeliant was insurer, r'espondents No. 2 and 3 were driver and owner of uie vehicle (Auto) beaiuij regisu'auon No. C.G.10T/0542. On 17-11-2007 at 1-00 P.M., claunant/respondent No.l was traveung by Auto bearing registration No. C.G. 10-T/0542 from Mungeli to his viHage. On the way, tlic sald Auto was overtuined due to rash aiid negugeut driviug of the driver of tlie ;.-.._.^^--..^ 'SSN 's^. offending veliicle auto, as a r-esult of which he sustauied grievous injuries ia tlie accident. He was taken to tlie Hospital, Mungell for primaiy treatment and fher-eafter', he was referred to CIMS, BUaspur and was also u'eated in AppoUo Hospital. However, he had becoine pennaiient 3. 'The clauiiant had Hled a petition i-uider- Section 166 of tlie Act, before the Claims Tribunal claiming a total compensation ofRs.16,22,000/- for tlie injuries sustauied bv lilm in the acciuent. 4. Leai'ncd Tribunal on a close scrutmy of evidence leu, niaterial placed aiid submissions madc by the pai'ties, has awarued a suuu. ofRs.1,25,000/- along with interest @ 'y/o per annuni u om fhe date of application tiu its payment. 5. I have heai-d learned counsel for fhe pai'ties anu perused uie fecord of the Claluis Tribunal as weU as the impugned award. 6. The contentlon of fue leamed couiisel for tlie appeUaiit is tiiat flie driver' of uie vehicle (autoj diu not possess a valld and efTective uriving' licence to drive a passenger traiispoi't vehicle as is evident from photo copy of uie ui'iviug Ucence ofrespondent No.2 wlilch is avallable on record. He fui't.her contends fliat flie driver was possessed a drivlng licence for' Liglit Motor Velilcle which was valid for a periou of 20 years ai'id uot a. Ucence for passenger u'anspoi't veliicle or auto-rlkshaw whose inaximum valiulty period is tlui'ee yeai's. 7. Learned counsel for the part'ies agi'ee that fhe matter requii'es reconslderation at tlie end of tue Clalms Tribunal for whlch it has to be remitted back to fhe Claims Tribunal because Lhere is a specific pleadiiig 111 Uie reply subinitted by ttie appeUaiit/Instiiaiice Company that there lia.s been ^ a breach of conditions of pollcy of lasuratice as fhe driver at fh.e relevant poii'u of tiuie was not possessii'ig a valid and effective drivmg Ucence to a drive a passenger ti'anspoi't vehicle i.e. auto-rlkshaw but despitc specluc pleaduig on tlie pouit, no issue has been fr'amed by fhe Clakns Trlb'aiial and iii the absence of aii issue fhere was no occasion for tl'ie pai'ties to have led evidenc-e on that poiiit. As such the matter needs to be reicutted back to tlie Clauns Tribuiial for reconsideration. 8. In tfais connection, it is necessaiy to mention tlie observation of HonTjle the Supr-enie Couit m the matter of Raj Kufnar Vs. Ajay Kumar aitd ctnother, reporleu iii 2010 INDLA.W SC 996 : 2010(12) Scale 265, Uic Hon"ole Supreiue Couit, in para- 11, has Iield flius: "11. The Tribmial should not be a silent spectator when meuical evidence is tendered 'in regard to the mjiiries and their e£Fect, ui pai'ticulaf the extent of permanent disability. Sectlons 168 and 169 of fhe Act inake it evident that fhe Tribunal does not functlon as a neuti'al umpire as in a civll suit, but as ai'i active explorer and seeker of trufh who is requu'ed to liold aii enquiry Into tlie clalm' for determuiiiig ttie 3ust compensation'. The Tdb'unal should therefore take aii active role to ascertaia flie true'aiid con'ect position so that it caii assess the just compensation'. Wliile dealing witli per'sonal injui'y cases, the Tribuiial should preferably equip itsetf wtth a Medical Dictionary aiid a Handbook for evaluation of pernianent physical 4 fv iiapauuiient (for example fhe Manual for Evaluation of Pex'nianent Physical Impau'ment for Orfliopedic Sui^eons, prepm'ed by Amei'ican Academy of Orfhopedic Siiigeons or its uidian equivalent or other aufhorized texts) for understai'iding the medical evidence aiid assesskig fhe physical and fLuictional uisabillty. The Tribmial may also keep m view ftie fu'st schednle to fhe Workmen's Conipensation Act, 1923 which gives soiae indication about fhe extent of permanent disabUity ui djfferent types of uijurles, In the case of workmen. If a Doctor givmg evidence uses teciuiical medical terms, fhe Triuiinal should uistr'uct hirn to state ia addition, in simple non-medical terias, (he nature and fhe efiect of the uijuiy. If a doctor gives evidence about fhe percentage of permanent disabllity, the Tribunal has to seek clai'lfication as to whefher such percentage of disabUity is fhe functional disabuitv wifh refer-ence to fhe whole body or whether it is oruy wifh reference to a Umb. If tlie pcrcent^e of pernianent disabUity is stated wifh reference to a Umb, fhe Tribiinai wiU have to seek fhe doctor's opinion as to whefher it is possible to deduce the con'esponding functional permanent disabUity wifh refereiice to fhe whole body and if so fhe 9. In fhe result, fhe appeal is ailowed ui part and settuig aside fhe award iinpugiied, fhe inatter is remitted back to the Clakus Tribunal for holdirig an enquiry for ascertairuiig the tr'utti as per provisions of Sections 168 and 169 of tfae Act aiiu Rule 226 ofthe C.G. Motor Vehlcle Rules, 1994. 10. In the process of enquiry, fhe Claims Tribiuial shall afford reasonable opporturuty of hearuig to fhe parties uicluding amendmen.t of the pleadmgs tf necessary, adducing further- evidence, file docum.ents or get fhe documents verified etc. The Tribunal shaU frame a specific issue on fhe point of breach of conditions of insurance policy and fuiduig shall be recorded 011 such issue. 11. In compliance of the order of fuis Court, appellant/Insurance Company has deposited 50% of fhe amount of conipensation, fhe said amount whether stUl is lying m deposit or disbursed to the claimant shall be subject to the award to be passed afresh. 12. The partles shaU appear before the Clauns Tribunal on lu-08-2011. 13. The records of the Clakus Tribunal shall be sent back wifhout any furfher delay. 14. No order as to costs. Sd/- G. Minhajuddin Judge