©v c IN THE HON'BLE mGH COURT OF JUDICATURE AT BBLASPUR -/- MA.(C)No.. OP 2010 (APPEAL VALUED AT Rs. 3,80,000/-) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988. 'ffsm APPELANT : ^{NON- APPLICAyr /'N0.1) .^\^ 1 ^ '..-•^^' ^:<-::.;•". £^^ ^*^ ..-<s The New India Asszirance ^ Company Lunited, tbrovgb: Its Branch-Office-Balauda Bazar, Distt.-Raipur, (C.G.). VERSUS iSPONDENTS . Ishwari Bai, w/u-l j[APPlJcANTN0.1) '-1' Nohardas MamkPuri , aged about-22 years. (APPLICANT N0.2) :2. (APPLICANT N0.3) (90N-APPLICANT J0.2) :4, Anut, S/0- Late Nohardas Mamkpiiri, Minor aged -2&1/2 years, Respondent No.2 is minor, through his roother-Jshwari Bal W/o- Nohardas Mamhpuri (Respondent- no.l) Both are R/0- Village ~ Godfai (T) Tah.-Bhatapara, P.S.- Bhatapara(Granun), Oistt. - Raipw (C.G.). Shanti Bai, W/0- Jhadudas Manikpiui>Aged-55 years, penttaaent R/0-Village-Dewar Tilda, Tah.-Arang, Distt. — Ssdpw (C.G.). Preseat R/0-ViUage-Godhi ^ Tah.-Bfaatapara, P.8.- Bhatapara (Gramin), Distt. - Raipur (C.G.). Shri Bh^wat Prasad Pardhi S/0-Pyare Babu IWdhi, R/o- Dewartitda, P.S.-Jdiarora, Tah..- Arang, EMstt.-Raipur (C.G.)(Owner ofmotor<ycle). in«"l- Being aggdeved by the award dated 21/04/2010, passed by Shri Ashok Kiam.ar Lunia, AddifionEd. Motor Accident Clauns Tribunal,^Bhatapara, Etistt.-Rasipur (C.G.), in claim case noT 17/2008, (between the parties Ishwari Bai & The New India Assurance Co. Ltd & Another), the Appeltant Assurance Company prefers this appeal on the foUowing facts and grounds amongst others: - HIGH COURT OF CHHATTISGARH. Hon'bie Shri i.M. Quddusi, J. & Hon'ble Shri Prashant Kumar Mlshra, J. y.A.l'ClNo.1010of2010 The New India Assurance Company Llmited. versus Ishwari Bai and others. onn uasFiratn uupta, counset tor tne appeiiant. Shri Pushpendra patel, eounsel for rssp./oiaimante No. 1 to 3. ORAL (18/04/2011) Following oral order of the Court was passed by I. M. uuddasi. J. Despite service of notice, no one appeared for the owner, however feamed counsel tor the ciaimants is present. (2) This appeai has been filed against the impugned award dated 21 April, 2010 passed by the Additional Moror Accident Claims Tribunal, Bhatapara (C.G.), in Clalm Case No.17/2008 In so far as it to iiabliity part. (3) Brief facts of the case, as per the version of claftT'ants, are that on 25/04/2008 deceased Nohardas v/as trave'ing in Hero Honda motorcycle bearing reglstration No. C.G. 04 C.Y. 9260 as pjifton-rider and Vikas Pardhi w-a.s drivlng ihe saia' vehicle. Due to rash and negligent driving of the. motorcycle the vehicie dashed against the bridge as a result of whlch Nohardas' received grievous injuries on his head and face and he died. Driver Vikas Pardhi also died. Deceased Nohardas v/as aged about 25 vears and used to earn Rs.150/- oer day. !n additlon to this he used to aei Rs.10,000.'- Der year from half acre lanQ'. Ciaimants have claimed / 's -A compensation of Rs.15,57,200/-, but the Tribunal has awarded Rs.3,80,000/- as compensation. (4) It has been submitted by learned counsel for the appellant that the insurance policy ofthe vehicle motorcycle was not a comprehenslve policy but was a act pollcy limited to the iiabilifry in which the third party accident risk v/as covered. Besides this, owner/driver risk was also covered, but the risk of piiiion-rider was not covered. However, insurance company/appellant has not produced any evidence to prove the policy and as such whether the policy was a comprehensive Dolicy or not cannot be ascertained. (5) In normai course if it would have been comprehensive poiicy even than the pillion-rider wouid not have been covered, but since t'ne insurance Reguiatory and Development Authority had made ciarifcation vide circular dated November 16, 2009 interpreting eariier circular issued by Tarrif Advisory Committee datsd 18th Mareh, 1S78 and 2nd Juns 1986 that the Insured's liabiiity in respect of Occupanns) carried in a Private Car and Piliion Rider carried on Two-svheeier is covered under the Standard Motor Package Policy (Comprehensive Policy), it has became the liability of the insurance company in case OT comprenensive oo'nw/. (6) Therefore, v/e are of the opinion that to ascertain the truth, it is necessary to remit the matter back to the Tribuna! as the Ijability s'nould be decided after conducting enquiiv as provided in Sectlon 168 of the Motor vehicies Act as weil as Rule 226 of the Motor Vehicie Rutes, 1994. (7) Section 166 (1) of the Motor Vehicles Act,1988 (for short 'the Act') provides that an application ror compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the persons mentioned therein and Section 168 provides that on receipt of a"--~ \. L-Js.l^..—;—^—,-—.- - •—- \... ^^£g^ ^ v-y - ^f--r.-y'rS'fs~ 5- apptication for compensation made under Section 166, the Ciaims Tribunal shail, after giving notice of the application to the insurer and after givina the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the ciaims and, subject to t'ne provisions of Section 162 may make an award aetermining the amount of compensation which appears it to be just and specifying the person or persons to whom compensation.shail be paid and in makina the award the Claims Tribunal shall specifv the amount which shail be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. (8) Ruie 226 of the Motor Vehicle Rutes, 1994 (for short 'the Rules') provides for obtainlna of information and documenis necessarv for awarding compensatlon under Section 40. it specificailv provides that the Claims Tribunal shall obtain whatever inTormation and documents which may be found necessary from the Police, Medical and other authorities and proceed to award the claim whether the oarties who vi?ere given notice, appear or not, on the appointed date. (9) The Hon'bie Apex Court in case of Raj Kumar vs. Ajay Kumar and another reported in 2010 t12) Scale the Hon'bie Apex Court has held in paragraph 11 as under :- "11. The Tribunal should not be a siient spectator when medicai evidence is tendered in regard to the injuries and their effeet, in particuiar the extent of permanent dlsabiiity. Sections 168 and 169 of the Act make it evident that t'ne Tribunai does not function as a neutrai umpire as in a civil suit, but as an active explorer and seeker of truih who is reaulred to 'hold an ena.uiry into the claim' for determinlng the 'just compensation'. The Tribuna! should therefore an active ro!e to ascertain the true and correct position so that it can assess the 'just compensation'. T'ne Tribunal shou'd therefore take an active / ;^ •^ rose to ascertain fhe true -and correct position so that it can assess the 'just compensation'." ('iu.) in view OT tne above, we set-aside tne impugned award and allow the appeai in part, remit the matter back to the Tribunal to decide the clalm petition afresh in the light of observation made above. (11) Needless to mention that the parties shail be aliowed to amend the pieadings, adduce further evidence, file documents or to get the documents verified etc. and thereafter the decision shall be taken afresh. (12) The parties who are present i.e. appellant as well as the claimants sh^l! snn^sr h^fftr^ fh& Trihnnai nn 11 IUI?sy ^HII The TnhiinsE chssii issue notice to the owner as he is not present here today, despite service of notice. (13) Lov/er Court Record be sent back without further delay. (14) The amouni which is in deposit shail remain in deposit till a fresh decisionistaken. (15^—J\lQ_orderas to costs. - — -- ~- — -— _ ___ __ Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge •Y^-