,'?i:^^^^^^^^-ss^T^^~?;°?^&^1, V^S^S^^&s^Ss^s:^^' -^^s^^jg V^^'^^^^^^^^i^a^^'^^^1 w^. 't'^^'^-^---." *!^a^2£^i"^f^Ks^^?^''? IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.1 ^ MISC. APPEAL f 0 N0. OF 2010 APPELLANT Claimant Sarju Ram S/o. Tilak Ram Soni aged about 43 years, r/o. Risaipara f-S^- ?<°c ^a- ..•••••"c^^ •.}r-:'"^',^^/l\ Dhamtari, Tahsil and Distt.- Dhamtari ^A.)^...- ( C.G.1 „ ^' ^V1 ,.^-^ VERSUS RESPONDENTS. 1. Ashok @ Samrat S/o Narayan Rao Non-claimant aged about 56 Years, r/o. Behind Mata Garrage, Pandari, P-- Thana - Civil line Raipur, Tahsil & Distt.- Raipur (C.G.) 2. Branch Manager, The Oriental Insurance Company Ltd Balak Chowk Dhamtari,Ddistt.- Dhamtari ( C.G.) MEMORANDUM OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLES ACT DIVISION BENCH: HON'BLE MR. I.M.QU&DUSI & ABpellant Vs Sarju Ram Ashok © Samrat & another Present: Mr. Sunil Sahu, Advocate for the appellant. Mr. S. Pandya, Advocate for the respondent No.l. Mr. Sudhir A9arwal, Adv. for respondent No.2. ORDER (Oral) (20th September. 2011) I.M. Quddusi. J; 1. Heard. 2. The oppellant has filed this appeal against the award dated 01.07.2010 passed by the tearned Chief AAotor Accident Claims Tribunal, Dhamtari (for short 'the Claims Tribunal') in Claim Case No.81/09. 3. Facts of the case, in brief, are that the appellant-injured filed a claim application under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') before the Claims Tribunal seeking compensation to the tune of Rs.11,00,000/- for the injuries sustained by hiin in a road accident on 10.04.2009 when the jeep bearing registration number C619-T-0011, which was bein9 driven in rash ond negligent manner by its driver, hit the appellant herein near the shop of B.M. Nahar at (5ole Bazar. The injured claimant claimed compensation on the ground that prior to accident he vuas earning Rs.4,000/- per month as driyer, however, after the accident he is not able to perform the said work and thus, he has sustained loss of earning capacity. 4. The Claims Tribunal vide impugned order dismissed the claim application of the appellant herein on the ground that the same is not maintainable under Section 166 of the Act, 1988. "i/ 5. We have heard learned counsel for the parties. We have also perused the records of the Claims Tribunal. 6. In this co.se., the non-applicont No.l, who was owner of the vehicte cmd was allegedly driving ttie same at the time of accident, appeared in the witness box and stated that the injured claimant, who was engaged cis driver in the vehicle in question, was in the habit of consuming alcohpl and at the time of accident also he was under the influence of alcohol ond therefore. he fallen down from the roof of the vehicle and got injuries. However, the Claims Tribunal has rejected the claim of the injured claimant on the ground .Itiat two persons namely Parvez Ashrbf & Narendra Kumar Soni shown in the first information report as eyewitnesses of the accident have not been produced by the claimants. 7. Section 168 of the Motor Vehicles Act, 1988 (for short 'the Act, 1988') provides that on receipt of opplication for compensation, the Ciaims Tribunal shatl hold an inquiry into the claim. Section 169 of the Act, 1988 prescribes procedure and powers of the Claims Tribunal and says that in holding ony inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behaif, follow such summary procedure as it thinks fit. The Claims Tribunal shall have oll the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing attendance of the witnesses omd of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed and the Claims Tribunal shall be deemed to be a Ciyil Court for all the purposes of Section 195 and Chapter XXVI of the Cr.P.C. Besides this, in Rule 226 of the AAotor Vehicle Rules, 1994 also it has been provided that the Claims Tribunal shall conduct enquiry to ascertain the fact. 8. The Hon'ble Supreme Court also in Para-il of Rajkumar Vs. Ajay Kumar & another reported in 2010 (12) SCALE 265 has hetd that "... Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular' the extent of permanent disability. Sections 168 and 169 of the Act make it evident that -tfie Tribunal does not . function as a neutral umpire as in a civil suit, but as an active explorer and ^t '::.i\ ^y. i ;'r' "i» .A-> -^' seeker of tru-th who is required to 'hold an enquiry into the claim' for determining the 'Just compensation'. The Tribunal should Iherefore take an active role to ascertain the true and correct position so that it con assess •the 'Just compensation". 9. In view of the above, the Claims Tribunal should not have treated the claim application as if the same was a civil suit cmd it wps the bpunden duty of the Claims Tribunal to conduct cn enquiry to bring truth on record and if the eyewitnesses in the case were not produced by the claimant, the Claims Tribunal could have summoned them suo motu'to ascertain the truth during •the conduct of enquiry. Therefofe, we feel that the matter requires reconsideration at the end of the Claims Tribunal as the Claims Tribunal has not followed the above provisions while deciding the claim application. 10.In the result, the appeal is partly allowed, impugned order is set aside and the matter is remitted back to the Claims Tribunal for decision afresh. The Claims Tribunal shall ascertain the facts and fix the liability afresh after proyiding opportunity to the parties to adduce furtherevidence, if oaiy, or to call/recall the witnesses, amend the pleadings or to file documents or verify the documents aiready filed and also after following the provisions of Sections 168 & 169 of the Act, 1988 and Rulea 226 of the Motor Vehicles Rules. Howeyer, it will be open for the oppetlant herein to move suitable application for conversion of his claim application into an application filed under Section 163-A of the Act,1988. 11. The parties are directed to appear before the Claims Tribunal concerned on 15 November. 2011. The Registry is directed to transmit record of the Claims Tribunal concerned without further delay. No order as to costs. Sd/- . I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Roshan/-