,-f.. IN THE HON'BLEHIGH COURT OF CHHATTISGARH ATBILASPUR M.A.fC) N0. c /2009 w ilNI ..-^-•' 'T- APPELLANT Respondent Np. 1 OWNER .^a »-:.^^ ^^^ ?r gssA*'*..<*^t*! RESPONDENTS CLAIMANTS ^./y 1] 2] Ambika Transport, through: its Proprietor:- Ajay Agrawal, S/o. Tarachand Agrawal, Aged about 52 years, Office Banaras Chowk, Ambikapur, District Surguja (CG) VERSUS Bhuiri Bai, Wd/o. Late Sanman Ram Majhawar, Aged about 21 years, Vidya Shankar, S/o. Late Sanman Ram Majhawar, Aged about 1 montK, throygh: his natural guardian/mother Bhuiri Bai, Wd/o. Late Sanman Ram Majhawar, 3] Basmatiya Bai, Wd/o. Late Shivratan Ram Majh'awar, Aged about 56 years, j^ 4] Dumeshwar Ram, S/o. Late Shivratan Ram Majhawar, Aged about 15 years, ^ 5] Mukeshwar Ram, S/o. Late.Shivratan Ram Majhawar, Aged about 15 years, Respondent no. 4 & 5 through: their natural guardian/mother Basmatiya Bai, Wd/o. Late Shivratan Ram Majhawar, All above R/o. village Narkalo, Police Station &. Tahsil Lakhanpur, District Surguja (CG) 6] Ravisar Ram S/o. Chhoturam Uraon, Aged' about 38 years, R/ti. Village Devgarh, TahsilSitapur, District Surguja Present Address: Village Bisunpur, Police'Station Jainagar, Tahsil 'Surajpvr, District Surguja (CG) ^ .... (Driyer of the_offenclingvehicle^ respondentnQ.^ i _ d*j^-.-i—- ^ w 7] United India Insurance Company, ^ through: its Branch Manager, Branch Office, Bramha Road, Ambikapur, Police Station & Tahsil Ambikapur, Surguja (CG) .. ...(Respondent no.3) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (Cl N0. 35 OF 2009 APPELLANT/ RESPONDENT NO.l/OWNES RBSPOITOBNTS Aiubika Ti'aiispurt. Bhuiri Bai and others. •p* /fc- APPEAL UNDBR SECTION 173 OF THE MOTOR VEHICLES ACT,1988 Division BeachsHon'ble Shri I.M. Quddusi & Hon'bleShri G. Miahaiuddia, JJ. Present: Shri Maiioj Pai'anjpe, comisel for ttie appellaat. Sliri Ros^lall Verma, counsel for tl-ie Respondents No. 1 to 5. Shri H.B. Agi'awal, Seiilor Advocate with Sliri Paiikaj Agrawal, counsel for respondent No.7. ORAL ORDBR (Passed 6n 27th day of September; 2011} Per I.M. Quddusi, J. Tlils appeal has been filed under Section 173 of tiie Motor VeUcles Act, 1988 (for short the Acf) against flie impugned awai'd dated 16-12-2008 passed by tlie Motor Accident Claims Tribunal, Sm'guja (Atnbikapurj (for short fhe Claims Tribunal'j m Claim Case No.32/2008 by Ae appellant/owner m so far as it relates to fastenuig the Uability to pay coiupensation tp ffae claimants on the appellaiit/owner of tlie offending veliicle along with respondent No.6 (drwer) Jolnfly and severally. 2. Brief facts of tlie case as per version of fhe applicaats/clalmaiits are fl'ia.t fbe appeUai-it/non-applicant No.l was owner, non-applicantNo.2 -Ravisai' Ram was drlyer arM non-applicant No.3 was tlie iiisui'er of flie ofFendlng velilcle fTanker) beai'mg registratlon No. C.G. 07-ZC/2597. On 07-03-2008 at.8-00 p.m., flie deceased Sanmaii Ram was ^. .f-1.. »,.-? gouig on 1-iis elder bi'otl-iei-'s motorcycle bearuig registration No. C.G. 15-CA/7619 along with liis cousln (Jasma Bal) from Ms vUlage Nai'kalo to Mlssion Hospital, Ambikapui'to see 1-iis wife and newly bom cliild. At that tiine, near B.E.O. Offlce, in Lakhanpur, he was dashed by fhe offending vehicle Tanker bearing reglstration No. C.G. 07-ZC/2597 being driven by fhe driver Ravisar Rani, In a rash and negUgent m.anner, as a result of wliich Sanman Raui sustained various grievous uijiiries m his body and died on fhe spot A r-eport was lodged in the PoUce Station, LaKhanpur and the offence was reglstei-ed m-ider Section 279, 337 aiid 304-A ofIPC. 3. The clakaants beiiig legal heu's of fhe deceased had filed a petition under Section 166 of fhe Motor Vehicles Act (for shoxt tfae Acf) before the C]aiuis Tribunal claLmuTig a total araount of conipensation of Rs.48,60,000/- for the deafh of the deceased. 4.. The learned Clakns Tribunal on a close scrutuiy of fhe evldence led, niaterial placed and submissions made by the parties, has awarded aii amount of Rs.4,74,000/- along with interest @ 9% per aruium fl'om the date of claun petition fiB its payinent, agalnst fhe appeUant/owner and driver joiafly and severaUy. 5. We have heard learned counsel for the partles, perused fhe record of tlie lower Court as weU as fhe impugned award and found ttiat ttie Claiins Tribunal has framed Issue No.2 regai'dmg bi'each ofcondition ofmsm'aiice policy and has held that the driver of fhe offending vehicle (Tanker) was riot havuig a valid and effective driviag licence on the date of accident. Though it was fhe burden ofthe Insurance Coinpany to prove fhe fact whether the driver of fhe ofiending vehicle was havlng a .valld and effectlve driving licence or iiot. The reasons of hdldtog tlie same have been given by flie Claims Trlbunal to the efFect fhat .the offenduig vehicle was a uransport vehlcle •caji'ylng dangei-ous and hazai'dous natui-e ofgoods and m ttie "\ ^i r» ?•• »;--? written statement filed by (he owner aiid di'Iver, it has not been mentloned tliat tlie owner was satisfied wifli tlie driving of tlie driver ai~td tlie fact tliat he liad coinpleted qualification of tlie tralninig course mider Rule 9(1) of flie Motor Velllcle Riites, 1989 or aiiy application has been given and pendlnig mider Rule 9(2). Tliougli tlie certificate to fhat effect was produced by tlie owner (NAW-1) Krislina Kumai' Agrawal which lias been fUed witii Ae meino of appeal wliich shows tliat Ravisar Ram has successfuUy completed 3 days' fiiil tlme trainlng pi'ogTamme fi'om 3-8-2002 to 5-8-2002 whlch was valid upto 4-8-2003 and eachyear, fhe same was renewed up to 04-08-2009. From. pei-usai of the copy of Uie certiflcate it appears tliat £hedrivef of the transportkig veliicle in question carrying goods of dangerous and liazardous nature had iindergone refresher course eveiy year riglit trom 2002 up to 2009 and driver Ravisai' Ram was haviiig a valid aiid effective drivuig Ucence of motox'cycle witfa geai', Liglit Motor Veliicle, Heavy Goods Vehicle and his driving licence was valid up to 01-11-2009. Therefore, in case Qie certificate as well as the dr'ivmg Ucence is accepted, It caiitiot be said that fl'ie di'iver of the vehicle was not liavmg a valld aiid effective di'ivuig Ucence to drive tlie velilcle, motorcycle wifli geai', LwIV, HGV and vehicle carrying goods ofdar^erous and hazardous riatiire. 6. Shri Pankaj Agrawal, learned counsel for respoiident/Insui'aiice Company has vehemently opposed tlie aTgumeiits of tlie leai'ned couiisel for the appellaiit and submitted fhat £he certlGcate issued which was produced at the tiflie of evidence was not Uable to be accepted. However, he could not say about the queiy of flie Court that the Insui'aiice Compaiiy lias failed to prove by producing evidence of flie ofiicial of fhe R.T.O. concerned tfaat ffie di-iver of fhe offendlng vehicle was not havlng a valld and eflecthre driving UcenGe.on tlie date of accident to drive tlie offendlng veliicle, tlie"l>urden wliich was on it. t _ ^•'•s3B!SSSS|fe, I 1 1 MB i K ~u '%. ^... 'y'i h- 31! /•>- t>.-? Kvr 7. In vlew of flie above, we ai'e of flie opuiion that tlie Claims Tribunal should consider ttie evidence given by fhe appeUaiit befor-e it uTespectlve of fhe fact that whetiier a inention was made in the written-statement to fhat efiect or not, as it is fhe duty of fhe Claims Tribunal to conduct tlie enquiry to ascertain the facts as provided under Sections 168 aiid 169 of tlie Motor Vel-iicles Act, 1988 aiid 226 of fhe Cl-il-iattisgai'h Motor Vehicle Rules, 1994. 8. Iii Uxe maLler of Rcg Kutnar -vs- AJay KtWtar and. another; i-eported ui 2010 (12) SCAIB, HouTjIe Uic Supreme Gourt lias obsei-ved that tlie claim petition shouid not be ti'eated as jf fhe same 1s a civU suit aiid tbe Tribunal should conduct tlie enquiiy to asceilaln the ti-ufli and tlie tnifl-i should iiot oiily be ascertained iii respect of flie claimaiit's version but the fact involved in tlie case shoiild be ascertauied. Therefore, flie matten'equires reconsidera.tion at the end oftlie Claims Triburial. 9. In the result, we allow the appeal m part, set aside the impugned awai'd and remit fhe matter back to the Clalms Tribuiial to decide fl-ie claim petltion a&'esh after providing opportunity to the parties to amend the pleadlr^s, adduce fuither evidence, file documents or get the documents verified or to recall fhe wltaesses ete. atid tliereaJBter, fce clalm petltlon shall be decided afresh after conducting proper enquuy, If necessaiy to ascei-tala flie facts, as early as possible preferably wifhin a period of tliree monfhs fl'om fhe date of appeai'ance of tiie parties, before fhe Clakas Tribunal. 10. Parties shall appear before ti-ie Tribunal on 17-11-2011. 11. Record of the Clauas Tribunal shaU be sent back iffithout fmtlier delay. 12. No order as to costs. 'Sd/- . I.M.Quddusi Judge 4 s? . ^ sd/- t" G. Minhajuddin Judge ^^•:^'"'LT .asw^i