^^^ ^ IN THE HON'BLE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A.(C)NO.- 4-7S/PB APPELLANT BRANCH MANAGER, THE ORIENTAL ^ INSURANCE COMPANY; SADARROAD, AMBIKAPUR, DISTT.- SARGUJA (C.G.) RESPONDENTS ...••""c^''. ^y ^"'y^' ^:^' ^^••'" •^- -1. ^ "> k>^4-- C1k's-' Vrs. RAJENDRA MISHRA S/0 RAGtIUNATH MISHRA, AGE ABOUT 41 YRS., CASTE- BRAHAMAN, RESIDENT OF GADELPARA, THANA & TAH. - BAIKUNTHPUR, DISTT.- KOREA (C.G.) SMT. SAVITRI DEVI W/0 LATE HANUMAN AGRAWAL, AGE ABOUT 46 YRS. RESIDENT OF VILLAGE SURAJPUR, THANA & TAII. SURAJPUR DISTT.- SARGUJA C.G. SHYAMKARTIK S/0 D.M. TIWARI, AGE ABOUT 45 YRS. RESIDENT OF VILLAGE KESHGANWA, THANA & TAH. SONHAT, DISTT.- KOREA C.G. (DELETED) SANTOSH KUMAR DUBEY S/0 MUNNIKARAN DUBEY, AGE ABOUT35 YRS. CASTE- BRAHAMAN, RESIDENT OF KESIIGANWA, THANA & TAH. SONHAT, DISTT.- KOREA C.G. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, BRANCII OFFICE- BILASPUR C.G. MATUKDHARI S/0 RAMJEET KUSHWAIIA, AGE ABOUT 39 YRS., RESIDENT OF VILLAGE SILFILI, OCCUPATION - OWNER OF VEHICLE, TAH. SURAJPUR, DISTT.- SARGUJA C.G. VIJAY KUMAR RAJWADE S/0 UNKNOWN, RESIDENT OF VILLAGE - KHARWAT, THANA & TAH. BAIKUNTHPUR, DISTT.- KOREA C.G. ..!.. ..2.. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 HIGH COURT OF CKHATTISGARH AT BILASPUR M.A. JCi N0. 473 OF 2008 APPBL1ANT RB3PONDENTS Branch Manager, The Oriental Insurance Company. Versus Rajendra Mislii~a and otliers. ^ APPEAL UNDBR SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Sinele Bench: Hon'bie Shri G. Minhajuddin, J. Presents Shri Sudhir Agrawal, coLinsel for fhe appellant. Sliri Prakasli Tiwaii, counsel for respondent No. 1. None for respondent No. 2 though served. Shri Atanu GlioslA, counsel for respondents No.3. Shri Raj Awastlii, comisel for respondent No.4. Sliii Dasliiath Prajapati^ coiuisel for respoudent No.5. None for rcspondents No. 6 6& 7. QR^AORDBR (Psus^ed ©ss13th day ofJuly, 2011) [ This appeai has been filed under Section 173 of tlie Motor Vel-ucles Act (tbr short tlie Act?) agauist tlie impugned awai'd dated 20-07-2007 passed by Motor Accident Clamis Tribunal, Korea (Baikmithpur) (for short the Clalms Tribunal) iii Claiiii Case No.90/2006 fasteiiiiig 50% liabillty for payment of tl-ie amouiit of compensation on the basis of contributoiy negligence of driver/non- appllcaiit No.6 beai'mg registi-ation No. M.P. 27- B/0445 (New number C.G. ZD/0964). 2. Brief facts of tiie case as projected by ti-ie clamiai-it./respondent No. 1 ai-e tl-iat on 23-02-2000 at 7.00 P.M., respondent No.l after finishmg the mai'ketmg business u'om Soril-iat was commg back iii Jeep beai'mg reglstt-ation No. M.P. 27-B/0445, wlilch was owned by respondent No.6, iiism'ed witi-i tlie appellaiit aiid diiven by ^ respoiAdent No.7 Vljay KLUiiar at fhe relevant time, After traveliiig one KUometer, the sald Jeep was dashed by aiiother Jeep beai'ing registration No. M.P. 27 W/0015 whlch is owned by respondeut No.2, uisuied witli respondent No.5, due to rash aad negligent driving of the driver Saiitosh, as a result of wlilch ti-ie clainiaiit sustained grievous injui'y m liis riglit leg. The claiinant has been admitted to Goverrmient Hospital, Baikmifhpui'. Thereafter, after some tii'ne, he has been referred to Mai'val Clty Hospital 6s Reseaich Centre, Jabalpm', where he uiider went ti'eatiiient for about eiglit monfhs. However, due to tlie injuiy he has become permaaently disabled. 3. The claimant had filed a petition under Section 166 of tlie Act, before tiie Claims Tribunal claiming a total compensation of Rs.7,00,OOQ/- for the mjuries sustained by liim ui the sald accident. 4. Learned Tribunal on a close scrutiny of evidence led, material placed aiid submissions made by tl'ie paities, has awai'ded a smii of Rs. 1,32,000/-, out of which 50% of ti-ie aniount of compensation was dii-ected to be paid by respondent No. 2 & 3 jointly aud severally and 50$>o of the aiiiouiit of compensation to be paid by respondents No.6,7 aiid UTie appellaiit jomtly and severally along with sunple interest @ 6% per aruium from the date of application tUl its payment. 5. Sliri Sudliu' Agrawal, learned counsel for tiie appellant contends tliat tlie dlsabiUty certificate Ex. 133 wliich has been issued by tlie Disti'ict Medical Boai-d, Disti'ict Hospital (Korea) has not been proved as per tlie provisions of the Evideuce Act, 1872 as none of the members constitutmg Boai'd has been exainined before tiie TiToLiiial to prove fhe said certiflcate. He fui'fher contends that tliere is a speciflc plea regai'ding breach of tlie conditions of fhe insuraiice policy ruade by the present ^ appellaiit/liistu'aiice Compaiiy in its reply t.o application under Section 166 of Uie Act before tlie Claiins Tribmial but no Issue has been fraiued ou this point. Lcai'iied comisel for the appellaj.it has fr-aiikly conceded tliat no appucation uiider Section 170 of the Act lias been filed before tlie Claiiiis Tribuiiai aiid, tlierefore, tlie only gi'ound ou wiiich the appellant/lnsyi'aiice Coiupariy caii contest tiils appeal ai'e only tliose gi'ounds wl-uch ai'e avaUable under sub-sectlon (2) of Section 149 of flie Act. 6. Leained counisel for respondent No.l/Claimaiit as well as leaiTied couiisel for respondent No. 4 have coutended that as permlssion under Sectiou 170 of tlie Act has not been gi'aiited to tiie appellaiit/Insuraiice Compaiiy, therefore, tlie scope of flils appeal so far as tiie appellaiit/Insui-aiice Compaiiy is concerned, is very Umited i.e. appeUaiit cai-i corifiiie tlie challenge only to flie UabUity pai~t and as such the appellaiit caiuiot challeuge fhe llability fastened on it on flie basis of contiibutory negUgence wliich is dii'ecfly cormected with the quaiituiii part. 7. It has been contended on behalf of tiie ciauuai-it/respondent No. 1 tiiat in case tiiis Couil comes to the conclusion fliat flie matter 1s to be remitted back to tiie Clauus Tribunal, tiieu aii opporturuty of moviiig aii appucation urider Section 170 of the Act to tiie appellaut/uisui'aiiice compaiiy should not be gi'aiited. 8, Learned counsel for Uie appellaat Slii~i Sudhlr Agrawal lias placed reliaiice iii tiie matier of JVew India Asszsrctce Co* Ltd. v. Sntt. Sheinti Pcithdk & Ors.; repprted iii 2007 AiR SCW 4779 aiid has urged that despite tiie rejection of applicatlon uiider Section 170 of the Act, tiie Couil is competent to see whetlier a docuuiient has been proved as per tiie provislons of Evidence Act or not? Or whether tlie niultlplier applied by .ilie Clainis ^fV^ Tribunal for computing the loss of dependency is proper or absui'd. 9. I have heai'd leaiTicd counsel for the pai-tles and perused the record of the Claiiiis Tribuiial as well as tfie impugned awai'd. 10. From perusal of the record, it 1s clear that the docunient disabllity certlllcate issued by tlie Distiict IVIedical Board, District Hospital, BalkuiiU-ipm" (Korea) which lias been mai'ked as Ex. A 133 has not been proved as per the provisions of the E)vidence Act as the concerned doctor i.e. one of the members of the Medical Boai'd has not been exairiuied who ought to have been exainined. In addition to tiiis, altliough the appellarit/Insui-aiice Company has not moved aii applicatiou under Section 170 of the Act before tiie Tribmial but wifhout ff-aining any issue ou tiie poiut of contiToutoiy uegiigence, wliicli has been held by tiie Claims Tribunal iii pai'a 28 of the impugued awai~d, it has been held tiiat there has been 50% of tiie negligence on fhe part of both the drivers of tiie vehicles. 11. In view of what has been luentioned above, the matter requii'es reconsideration at the end of the Claiins Tribuiial because tlie leai'ned Claims Tribunal has not couducted proper enquiry, as per tiie provisions of Sectlons 168 and 169 of tiie Motor Vehicles Act aiid Rule 226 ofthe C.G. MotorVehicle Rules, 1994. 12. In tliis coruiection, it is necessaiy to mentlon tlie observation of Hon"ole tlie Supreme Comt ui tlie matter of Rcy Kusnwr Vs. AJdy Kuniar csnd another, reported izi 201G INDLAW SC 996 : 2010(12) Scale 265, Uie Hont>le Supreme Com't, in pai'a-11, has held tlius: ^-^ .;*"^ .•%?.. ^ 4 u11. The Tribmial should not be a silent spectator when medical evidence is tendered ui regai'd to tlie mjm'ies aiid tlieir efiect, in pai'ticulai' tlie extent of permaiient disabUity. Sections 168 aiid 169 of tlie Act make it evident that the Tribuiial do^s not functiori as a neuti'-al umpir-e as iii a civU siiit, but as aii active explorer aiid seeker of ti'uth who is requu'ed to Tiold an enquiry iiito tlie claliTi' for deterniiiiiiig tlie just corupensation?. The Tribunal should tlierefore take aii active role to ascertahi tiie true aiid correct position so that it caii assess the 'just conipensation'. Wliile dealing witii personal iiijuiy cases, tiie Tribuiial should preferably equip itsetf wifh a Medical Dictionaiy ai-id a Haiidbook for evaluation of permanent physical mipaii'ment (for exaniple tlie Maiiual for Evaluation of Permaiient Physical Impali'ment for Ortliopedic Siii^geons, prepai'ed by Aniericaii Acadeuiy of Ortiiopedic Sui-geons or- its Indiaii equlvalent or other aufliorized texts) for understaiiding tiie medical evidence and assessing tlie physical aiid fuiictioi-ial disabUity. The Tribuiial may also keep iii view the fli'st schedule to the Workaien's Compensation Act, 1923 wliich gives some indication about tiie extent of permaiient disability ui different types of injuries, in the case of workmen, If ^,,->-'-.^^ ^e I § ^ ^S.-.^ J ^u [ a Doctor giving evidence uses teclinical medlcal terms, tlie Tribuaal should instruct hini to state m addition, iii suiiple non-medical terms, tiie nature aiid the efiect of tiie injuiy. If a doctor gives evidence about tlie percentage of permaiient disabllity, the Tribuiial has to seek clai-tfication as to whetlier such percentage of disabUity is tiie functioiial dlsability with reference to the whole body or wheflier it is orily with reference to a lu'ub. If ti.ie percentage of permanent disability is stated witli reference to a Umb, flie Tribunal wiU have to seek Uie doctor's opuiion as to wheti'ier it is possible to deduce the corresponduig functional pernianent disability wifh reference to the whole body aiid if so the percentage." 13, In tiie result, the appeal is aUiowed in part and the award mipugiied is set aside and the matter 1s remitted back to fhe Clamis Tribunal with a direction that fhe Claims Tribuiial shall fraaie a speclfic issue on tlie pouit of conti'ibutoiy negligence and after affordiiig opportmiity of lieai'uig to tiie pai'ties, shaU pass a reasoned award afresh expeditiously, preferably witliui a period of flii-ee monflis from ti'ie date of i-eceipt of copy of tliis order along witi-i records of the case. In case an applicatioii uiider Section 170 of tiie Act 1s inoved on behalf of tiie Insui'aiice Company, the saine shall be decided by the Ciaiiiis Tribmial m accordaiice with law, without beiiig influenced by aiiy of tiie obseivations made by this Court. i %1 ^ 14. Needless to mention tiiat ti.ie pai-ties shall be provided opportuiiity to ariiend tiie pleadiags, adduce further evidence, file documents or get the docmnents verified etc. The Tribuiial shall also conduct aii enquli'y as provided under Sections 168 & 169 of the Act, 1988 aiid Rule 226 ofti-ie C.G. Motor Veliicle Rules, 1994. 15. The paities shall appeai' before the Claims Tribuiial on 08-08-2011. 16. The records of the Claims Tribunal shall be sent back witiiout aiiy fm'tl'ier delay. 17. It is made cleai" that tlie aniomit wliich has been deposited by tlie appellaiit/iiisui'aiice compaiiy, if not disbursed, shaU. remahi in deposit aiid tlie saiiie shall be subject to tiie award to be passed afresh. 18. No order as to costs. Sd/- G. Minhajuddin Judge ? 1 ^