IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL fC1 N0.^' /2009(D.B.) WMm^Bm fMISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988 VALUED (a), 31,20,000/- ) ^ <j), Qv VVA-yv'^ .~4^' .t^ r t^>^ A8< '^•" APPELLANTS :- 1. Smt. Renu Sharma wd/o late Shivnarayan Sharma, aged about 21 Claimants 2. Ku. Isha Sharma D/o Late Shivnarayan Shanna, aged 1 year. 3. Smt. Gyandevi w/o Shivkumar Sharma, aged 48 years. 4. Shivkumar Sharma s/o late Ramraj Sharma, aed 52 years. Minor through mother Smt. Renu Sharma. All R/o Ghasidas Nagar, Nandini Road, near Jamul Police station, P.S. Jamul, District Durg (C.G.). VERSUS 1. Krishna Sharma s/o Dhaneshwar Sharma, R/o Ghasidas Nagar, Nandini Road, Bhilai, P.S. Jamul, District Durg 2. Lallan Sharma s/o Dhaneshwar Sharma, R/o Ghasidas Nagar, near Durga Manch^ Nandini Road, Bhilai, Tahsil and District Durg (C.G.). 3. Divisional Manager, Bajaj Allianze General Insurance Company, Shivmohan Bhawan, Vidhansabha Road, Pandri, Raipur (C.G.). (MISC. APPEAL UNDER SEGTION 173 OF THE MOTOR VEHICLE ACT, 1988 VALUED (2) 31,20,000/- ) RESPONDENTS -^ HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (Q No. 759 of 2009 Appellants Smt. Renu Sharma & others Versus Respondents Krishna Sharma 85 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 DB: Hon'ble ShriJustice I. M. Quddusi & Hon'ble Shri Justice Prashant Kumar Mishra, JJ Shri Amiyakant Tiwari, Advocate for the appellants. NonefortherespondentsNo. 1 and2. Shri S. S. Rajput, Advocate for the respondent No.3. ORDER (OraU ( Passed on this 22nd day of March, 2011 ) Per I. M. Quddusi, J. This appeal has been filed by the appellants/claimants against the impugned award dated 31st January, 2009 passed by the Ninth Additional Motor AcG.ident Claims Tribunal (FTC), Durg ii^L Claim Case No. 75/2007, dismissing the claim petition. We have heai^d learned counsel appearing for the parties at length and perused the papers available on record. The, brieffacts, in nutshell, are that the appellant/claimants (widow, minor daughter and parents i.e. mother & father of the deceased, total four persons) filed an application under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensationof Rs. 31,20,000/- on the submissions that on 3.5.2007 at about 1.30 in the afternoon deceased Shiv Narayan was dashed by the vehicle ~ Minidoor, bearing registration No. C.G..07-C/6053, due to rash and negligent driving of the non-applicant No.l (Krishna Sharma). AvS a result of this accident Shiv Narayan received grievous injuries and during the tresatment he succumbed to those injuries. The matter was reported to the Police Station ~ Jamul, where the offence under Sections 279, 337 and 304-A of the Indian Penal Code'was registered against the non-applicant No.l. /y' ^ M n t- r'%-;»-'r l^r^l'j ^^..^ <<:i-is^^'" 5. Learned Claims Tribunal has dismissed the claim petition on the ground that the minor namely Amit Kumar Sharma was driving the vehicle and he was not made a party in the claim petition. Therefore, the claimants have not come with clean hands. The statement of Anil Pratap Singh (A.W.2) was relied upon and the Tribunal has held that he was not an eyewitness of the incident. If Anil Pratap Singh (A.W.2) was not an eyewitness, there was no relevancy of his statement recorded under Section 161 of the Cr.P.C. But the Tribunal on one hand held that Anil Pratap Singh (A.W.2) was not an eyewitness and on the other hand it had relied upon his statement that Amit Kumar Sharma, minor, was driving the vehicle. However, in the criminal case ,the charge was framed against Krishna Kumar who was in charge of the vehicle. The claimants have impleaded the owner (Lalla^n Sharma) of the vehicle as one of the respondents in the claim petition. 6. In Section 5 of the Motor Vehicles Act, 1988 it has been provided that no owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle. Section 4 provides that no person under the age of eighteen years shall drive a motor vehicle in any public place. Therefore, if a minor was driving the motor vehicle the same was not permissible under the law and the responsibility to allow a minor to drive a motor vehicle goes to owner or the person in char^e of the motor vehicle. As the owner of the vehicle was already made a party in the claim petition, therefore, dismissing the claim petition on the ground that the claimants have not come with clean hands is not sustainable and therefore the award is liable to be set aside. 7. Section 169 of the Motor Vehicles Act, 1988 and Rule 226 of the Madhya Pradesh/Chhatdsgarh Motor Vehicles Rules, 1994 are relevant to be perused, which reads as under. a 169. Procedure and powers of Claims Tribunals. ~ (1) In holdingany inquiry under section 168, the Claims Tribunal may, subject to any rules.that may be made in this behalf, follow such summary procedure as it thinks fit. ^,. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and 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 Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensatiori, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry/' 226. OBTAINING OF INFORMATION AND DOCUMENTS NECESSARY FOR AWARDING COMPENSATION UNDER SECTION 40-. The Claims Tribunal shall obtain whatever information and documents which rnay be found necessary from the police, Medical and other authorities and proceed to award, the claim whether the parties who were given notice, appear or not, on the appoihted date. 8. HonlDle Supreme Court in Raj Kumar Vs. Ajay Kum.ar & another { 2010 (12) SCALE} in para 11 has held that "Tke Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent ofpermanent discibility. Sections 168 and 169 ofthe Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker oftruth who is required to 'hold an enquiry into the claim' for determining the (just compensation\ The Tribunal should therefore take an active role to ascertain the true and correct ppsition so that itcan assess the (just compensation'" 9. In th<e result^ we allow this appeal in part, set-aside the impugned award dated 31.1.2009 and reniit back the matter to the Tribunal for decision afresh. No order as to costs. 10. It is necessary to observe that the Tribunal should conduct an enquiry as provided in Section 168 of the Motor Vehicles Act, 1988 and Rule 226 of the Madhya Pradesh/Chhattisgarh Motor Vehicles Rules, 1994 before deciding the matter afresh. 11. 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 ete. Thereafter, the decision shall be made by the Tribunal on merits. 12. The claim case shall be decided by the Tribunal, independently, without being influenced by the findings given earlier by it or any of the observations made herein above. 13. The parties shall appear before the Tribunal on 19th April, 2011. 14. The Iqwer Courts record shall be sent back forthwith. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Thakur