IN THE HON'BLE HIGH COURT OF CHHATTISGA AT BILASPUR M.A.(C) N0. /2010 AEPELLANTS /Non-Applicants ^ ^ \'^'',^ ^' <8i- ..-:• s'L.,^"k.. '^^' ^" RESPONDENTS ^CLAIMANTS ^. ^f Tiwari Ram Rajwade, S/o. Daroga Ram Rajwade, aged about 23 years, R/o. Village Songara, Sarastal, Chowki Bhatgaon, Police Station Pratappur, District Surguja (C.G.) .'..(Driver oftractor bearins resistration no. C.G 15/A-OS56J 2] Dashrath Singh, S/o. P. Singh, aged about 35 years, R/o. Village Songara, Police Station & Tahsil Pratappur, District Surguja (C.G.) ... (Owner oftractor bearing registration no. C.G 15/A-OSS6) VERSUS ,1-](- Heeramani, Wd/o. Late Ramashankar, / aged about 35 'years, ^2]"? Premsagar, S/o. Late Ramashankar, aged about 18 years, Harishchandra, S/o. Late Ramashankar, aged about 16 years, 4] <l, Harihar, S/o. Late Ramashankar, aged about 14 years, Appellant no. 3 & 4 are minors, through: their natural guardian and next friend/mother Smt. Heeramani, Wd/o. Late Ramashankar, aged about 35 years. All' above are R/o. Village Karwan, Police Station Jainagar, Tahsil Surajpur, District Surguja (C.G.) At present R/o. Shankarghat, Nagar, Police Station & Tahsil Ambikapur, District Surguja (C.G.) 5]^\The Oriental Insurance Company Bilaspur, DiStrict Bilaspur (C.G.) (Insurer ofoffendins tractor/resaondent no.l) ^ "^'•^"^ssssf'-je'-s^ss^ssss-' APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT -V" Claim in tribunal at Rs. 38'.50.000/- Amount awarded Rs. 4.16.692/w' Claim in appeal Rs. 4J6,692/V^ .f' HIGH COURT QF CHHA^TISGARH : BILASPUR M. A. fC) No. 94 of 2010 Appellants Tiwari Ram Rajwade SE another Versus Respondents Heeramani 8s others MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,1988 DB: Hon'ble Dr. I. M. Quddusi SE Hori'ble Mr. G. Minhajuddin, JJ - Shri Manoj Paranjpe, Advocate for the appellants. None for the respondents No. 1 to 4, despite service of notice. Shri Sudhir Agarwal, Advocate for the respondent No. 5. <<' ORDER (Oral) ( Passed on this 7th day of December, 2011) PerI. M. Quddusi J. 1. The instant appeal, filed by the appellants'(driver and owner), arises from the award dated 17.12.2009, passed by the Fourth Additional Motor Accident Claims Tribunal (FTC), Ambikapur, District - Surguja in Claim Case No. 49/2008, awarding a total sum of Rs. 4,16,692/-, after deducting 50% of the amount of compensation towards contributory negligence on the part ofthe deceased. 2. - The facts, in brief, are that on 9.10.2004 at about 6.00 p.m. in the " evening v.'hen the deceased Ramashankar was going on his motorcycle, Bearing registration No. C.G. 15/6491 from village Karva to village Jarhi, he ran into the tractor-trolley,..bearing registration No. C.G. 15-A/0856 and 0857,- which was standing on the road side as out of order, because the dala of the trolley was left out from the trolley. In that accident Ramashankar received grievous injuries and on the way to hospital he breathed his last. -. ^. / ^, .A .>-/ ^J ^^-.la.. 3. The claimants/dependents (wife and four sons) filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation ofRs. 38,50,OOO/-. 4. Learned Claims Tribunal having regard to the facts situation and the evidence on record held that the offending vehicle (tractor trolley) was being plied in contravention of the conditions of the insurance policy therefore the Insurance Company is not liable to pay any amount of compensation. It was further held that the deceased was also negligent and his contribution in the accident was to the extent of 50%. Thus, after assessing the total compensation of Rs. 8,33,384/- learned Tribunal has awarded a total sum of Rs. 4,16,692/- along with interest @ 9% per annuni from the date of the application i.e. 28.12.2005 fastening the liability to pay the amount of comperisation upon the appellants/driver and owner ofthe offending vehicle,. 5. We have heard learned counsel appearing for the parties and perused the lower Court's record. 6. It is evident that the Ins"urance Company was exonerated from its liability because it was found by learned Tribunal that although the offending vehicle was insured for agriculture purpose but at the time of accident bricks were loaded in the trolley, thus the vehicle was being i' J. used for the purpose, other than the agriculture purpose. On perusal of the papers on record, we are of the opinion that there is no specific evidence to arrive at the finding that the offending vehicle was being used excLusively for the purpose, other than the agriculture purpose. Further, when the deceased - driver of the raotorcycle was not having a valid and effective driving licence on the date of accident, what would have been the extent of deduction towards contributory negligence and whether proper precaution was taken by the owner/driver of the offending vehicle, which was standing on the road side having become out of order, .^ tl. "^ "%>,'6. ^ to prevent the accident that has not been taken into consideration. Therefore, the extent of contributoiy negligence should have been determined only after ascertaining the above points, afresh. 7. Therefore, in view of what has been observed by this Court hereinabove, we are of the opinion that the matter requires reconsideration at the end of the Tribunal after conducting an enquiry. 8. For the reasons stated hereinabove, we allow this appeal in part, set-aside the impugned award dated 17.12.2009 and remit back the matter to the Tribunal for decision afresh in view of the observations made hereinabove. No order as to costs. Needless to raention 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. 10. The Tribunal shall make an endeavor to decide the claim petition, as early as possible, preferably within a period of three months from the date of appearance of the parties before it. 11. The parties shall appear before the Claims Tribunal on 24th Januaiy, 2012. 12. The lower Courts record shall be sent back forthwith. 13. The amount, if any, deposited by the appellants shall be kept in a flxed /) deposit scheme in any nationalized bank, initially for a period of sbt months, which may be extendable from time to time, as may be directed by the Tribunal. ^y ~~~~- ^ —- SdA DR. I.M.Quddusi Judge Sd/- G.Minhajuddin Judge . .^ r