•P^^,r^-T.^^^ IN THE HIGH CQURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0. H?)3 /2011 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,1988 5Nl©103lB@rlc^1 APPELLANT INSURER RESPONDENTS CLAIMANTS ^/y< <y DRIVER OWNER ICICI Lombard, General Insurance Company Limited, Registered office: ICICI Bank Towers, Bandra-Kurla, Complex, Mumbai, 4000 51, through its Legal Manager, ICICI Lombard General Insurance Company Limited Lal Ganga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VERSUS » 1. Smt. Soniya Dwivedi Wd/o Devendra Kumar Dwivedi, aged 26 years, 2. Ku. Gunjan Dwivedi, D/o Late Devendra Kumar Dwivedi, aged 2 & / 1/2 years, 4 ^'- 3 Suryash pwivedi S/o Late Devendra Kumar Dwivedi, aged 1 years, Respondents/claimants No. 2 & 3 being minor represented though mother Smt. Soniya Dwivedi. 4. Jagannath Dwivedi S/o Late Munnal Lal Dwivedi, aged about 60 years, 5. Smt. Nirmaia Dwivedi W/o Shri Jagannath Dwivedi, aged about 57 years, All R/o Behind Karmaa Mata School, Good-Luck Plastic Gali, Santoshi Nagar, Raipur (C.G.) •^ Premalal Yadav S/o tate Taturam Yad^T; Aged about 45 years, R/o Behind Marowda Tank Primary School, P.S. Nawai, District Durg (CG), Alternate Address:- Raipur Bus Service, Through its Competent Officer, A/15, Mahesh Colony, Near old Pulgaon Naka, G.E.Road, Durg '..-^. Raipur Bus Service, Through its Competent Officer, A/15, Mahesh Colony, Near old Pulgaon Naka, G.E. Road, Durg (C.G.) J< ly HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (Cl No. 439 of2011 Appellant Respondents Versus ICICI Lombard General Insurance Company Limited Smt. Soniya Dwivedi & others And WL A. (C) Np. 544 of 2011 Appellants Respondents Versus Smt. Sonia Dwivedi & others Prem Lal Yadav & others DB: Hon'ble Mr. Justice I. M. Quddusi & Hon'ble Mr. Justice G. Minhajuddin Shri Sourabh Sharma, Advocate for the Insurance Company. Shri Satyendra Sahu, Advocate for the Claimants. None for the Driver and Owner. ' . ^ ^' O R D ER (Oral) (Passed on this 27th day of September, 2011) Per I. M. Quddusi, J. The aforementioned bQth the appeals ( M.A.(C) Nos. 449 and 544 of 2011 ) are being decided by this common order as they arise from the award dated 14.12.2010, passed by the First Additional Motor Accident Claims Tribunal, Raipur, in Claim Case No. 26/2010 (Smt. Sonia Dwivedi & others Vs. Prem Lal Yadav & others), awarding a total sum of Rs. 11,61,500/-, holding the Insurance Company jointly and severally liable to pay the amount of compensation. The M.A.(C) No. 449/2011 has been filed by the Insurance Company challenging the quantum, whereas M.A.(C) No. 544/2011 has been filed by the claimants for enhancement of the award. In both the appeals the questions of quantum isjn dispute by both the sides. ^ f: </t^. 3. The permission under Section 170 of the Motor Vehicles Act, 1988 was granted to the Insurance Company to challenge the award on all counts. 4. Brief facts, in nutshell are that on 30.12.2007 at about 8.30 p.m. when the deceased Devendra Kumar Dwivedi was going on his motorcycle, in front of Golden Marble, Ring Road No.l, Tikrapara, Raipur, the Bus, bearing registration No. C.G. 07-E/5412, which was being driven by the non-applicant No.l in a rash and negligent manner, hit the motorcyclist, resulting in his death. 5. The legal heirs/dependents of the deceased Devendra Kumar Dwivedi filed the Claim Case No. 26/2010 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 23,70,000/-. 6 . Learned Claims Tribunal having regard t8" the facts situation and the evidence on record awarded a total sum of Rs. 1 l,61,500/-along with interest @ 6% per annum. 7. We have heard learned counsel appearing for the parties and perused the lower Court record, including the charge sheet filed by the police in which two persons have been shown as eye-witness but none of the eye-witness has been produced by the claimant before the Claims Tribunal. One Samiran Bose has been produced by the Claimants as eye-witness of the incident but he h^s not given the correct picture of the incident rather has stated contrary to the facts and his statement cannot be believed. In our opinion he cannot be an eye-witness of the -incident. Therefore, the Tribunal should have considered that the eye-witness have been shown in the charge sheet by the police and they should have been summoned to ascertain the facts. ^K» ^o 8. In view of the foregoing, we allow the M.A.(C) No. 439/2011 in part, set aside the impugned award dated 14.12.2010 and remit back the matter to the Claims Tribunal to consider and decide afresh in the light of the obser^ations made herein above. The M.A.(C) No. 544/2011 stands disposed of in view of the direction issued for recalculation ofthe amount ofcompensation..No order as to costs. 9. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified etc. Thereafter, the decision shall be made by the Tribunal on merits. 10, Further, needless to mention that theClaims Tribunal shall make an endeavor to decide the Claim Petition afresh, as early as possible, preferably within a period of three months from the date of appearance of the parties. 11. Parties shall appear before the Claims Tribunal on 17.11.2011 . 12. The amount, if any, deposited with the Tribunal shall remain in fixed deposit scheme till fresh decision is taken by the Tribunal. 13. The lower Courts record shall be sent back forthwith. A ^••-- Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge Thakur