IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BiLASPUR M.A. (C) No.- ^^ /o^ APPELLANT ^^^'.-y' riSu.^.^n E.-'ni^R THE ORIENTAL INSURANCE CO. LTD., THROUGH DIVISIONAL OFFICE,D.O.-2, CHAWDA COMPLEX, DEVENDRA NAGAR ROAD, SAI NAGAR, RAIPUR, TAHSIL & DISTT.- RAIPUR C.G. ^•••'^ ' ^rs- ^"- MESPONDENTS/CLAIMANTS ^- SEWARAM DEWANGAN AGE ABOUT 50 YRS. S/0 DAURAM DEWANGAN SMT. MEENA DEWANGAN AGE 46 YRS. W/0 SEWARAM DEWANGAN, ANIL DEWANGAN AGE ABOUT 28 YRS. S/0 SEWARAM DEWANGAN ALL RESIDENT OF RAMKUND UCHHALA TALAB RAIPUR, TAH. & DISTRICT- RAIPUR C.G. WN-APPLICANTS :- y 4. SURAJ PRASAD YADAV S/0 RAMNIWAS YADAV, AGE 55 YRS., RE8IDENT OF NEAR TO ETABHATTA, DURGAPARA, RAIPUR, THANA - KHAMTARAI, TAH. & DISTRICT- RAIPUR C.G. 5. PURUSHOTTAM SOLANKI S/0 MONJI BHAI SOLANKI, RESIDENT FAFADIH, RAIPUR,TAH. & DISTRICT - RAIPUR C.G. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 HIGH COURT OF CHHATTISGARH, BILASPUR DB: Hon'ble I. M. QUDDUSI & Hon'ble PRASHANT KUMAR MISHRA, JJ APPELLANT: M.A(Cl.No.65S/2008 Purushottam Solaald Vs. RESPONDEMTS: The Oriental Insurance Co. Ltd & ofhers APPBLLANTS: RESPONDENTS: APPELLANT: RESPONDENTS: M.A(Ct.No.749720Q8 Sewaraiu Dewaagau and others Vs. Suraj Prasad Yadav and 2 others M.AfCl.No, 1009/2008 Oriental Insuraace Corupaay Ltd Vs. Sewaram Dewangan & others ML8C.APPEALS UNDERSECTIQN 173 OF THE MOTOR VEHICLES ACT, 1988 Appearance: Mr. Sacliia Siagh Rajput, counsel for fhe appeUant ia M.A(C).No.655/2008 and respondent -owner iu M.A© Nos.749 & 1009 of 2008. Ms. Sunita Jam, counsel for the appeUaats ui M,A(). No. 749/2008 and respondents/claixaaats ia M.A(C ). No.655/2008 & 1009/2008. Mr. Sudhir Agrawal, coiuisel for fhe appeUant ia M.A © No. 1009/2008 aad respondent iasurer m M.A(C). Nos. 655/2008 & 749/2008 ORAL ORDER (10.03.2011) As per I.M. QUDDUSI, J, 1. These are 3 appeals ffled against the impugned award dated •'^ 18.02.2008 passed by X Additional Motor Accident Claims \ Tribimal-(P.T.C), Raipur, ia Claun Case No.54/2007. [}¥,''•'l?h-^4*'^'^TIl't=;*biJCT ^"••.•^t'^<'ri';s-<^^^?,s';S.^^s.' A»-.KiSMaisst!i*33&ik^ 'CT^ ''? .«•; E' .^ a ''^'uSzsS^' 'S,: 1 2. M.A(C). No.655/2008 has been filed by the owner chaUengiag the direction of fhe Tribuiial regardiag pay and recover. M.A (C) No.749/2008 has been filed by fhe claiinants for eiihanceiuent ofthe com.pensation aad M.A(C). No. 1009/2008 has been filed by ftie Insurance Coxupany ou. fhe grouud ofvaUdity ofdnvuig license as also quanttmi. 3. Brief facts of the case as per fhe version of claunants are fhat in the night of 03.02.2007 at about 10.30 deceased Surul Kumar Yadav was comiag on cycte to his house at Raoikuxid froia Madhubaa Fumiture Pandri, Raipur where he was working as accountant. On the way at Devendra Nagar Chowk one Tata Indica Car bearing C.G.No.04-7211 which was being driven by non-appUcant no. 1 in. a rash and negUgent inanner dashed the cycle of Surul Kumar, as a result which, he sustaiaed serious injuries aad died. At the tiine of accident, the deceased was a young maii of 25 years old; he was workuig as Accountaut in Madhuban Fumiture Paadri and in leisure tunes, he was also undertaking tuitions. As such, he was eaming Rs.7,500/- per nionth. The claiiuants being dependents/legal icpresentatives ofthe deceased have made claim to fhe tuiie ofRs.49,00,000/- on various heads. 4. Leamed Clanms Tribuual has held fhat fhe offendiag vehicle was involved in fhe accident iu which deceased sustaiaed iajyries and died. However, the Tribiuial has held that it is partiaUy proved fhat there was breach of policy conditions as • fhe driver was not haviag valid aad effective driyiug licence. \ •'•'•-Y; '• / ^IS^v' ^'^'^•"^w ..-?*. ^ i,: s ^ 'x . ~ S. We have heard leamed couasel for the pardes and have gone through records ofthe Tribunal. 6. A perusal of fhe record shows that it is not known as to whether fhe license was issued aad renewed at any poiat of time by the R.T.0. Bilaspur and only examiaation of au einployee of R.T.0. Raipur namely Rajesh Kumar Bhai^av, has been done. But no reason has been assigned as to why an order for pay aad recover has been inade to fhe Insuraace Coinpaay as there is oiily a decision of ttie Apex Court iti National Insuraace Company Vs. Swara Slagh 8s others reported ia (2004J 3 SCC 297 by which a direction was issued to the Insurance Coinpany to pay aad recover, fherefore, such direction was not liable to be issued in atl cases except only in similar set of facts and circuinstaiices as inentioned in Swam Singh Case (supra). In view of fhe above, the clauns Tnbunal should have m.ade a scrutiny of the case ia the light of the Swam Singh's Case aad only thereafter should have taken a decision regardiag direction to pay aad recover to the Insurauce Coiapaay inore so when fhere is an aUegation of the Insuiance Coinpany that there was no license issued to the driver ofthe offending vehicle. 7. However, learued counsel fbr tiie owner has subinitted that in fact, the driver was having vaUd aad effective driving license but fhe inatter reiBiained in dispute ia absence of any proper enquiiy by tfae Tribunal. He further submits that the Tribunal has not examiaed any of&cial from R.T.0. BUaspur fo enquire into fhe documents ffled by the owner and dnver \ L v " 'N. . '- \: regarding issuance of driviug Ucense, therefore, it has not recorded a defmite fuidiag on issue No.2. 8. It appears fhat the Tribunal has not conducted proper enquiry as provided in statute on fhe above poiuts. 9. Rule 226 of C.G. Motor Vehicles Rules, 1994 provides that the Clauns Tribunal shaU obtaia whatever infomiation and documents which may be found necessary from the poUce, inedical aad other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appoiuted date. Fiulher we caanot ^nore the provisions of sectionl68 of'the Motor Veliicles Act, 1988 which provides fhat on receipt of an appUcation for couipensation made u/s 166, the Clamis Tribunal shaU after giviug the parties (includuig fhe insurer) aa opportuuity of being heard, hold an inquiiy iato the clauu. aad subject to the provisions of section 162 niay inake an award determirurig fhe aiuount of coinpensation which appears to it to be just. However, the Tribunal bas not conducted aay enquiiy ia fhe maaner iadicated above. 10. Hon'ble the Supreme Court ia RaJ Kumar -vs- AJay Kumar and another decidcd on 18th October, 2010 and reported in IV (2010) Accident & Coupensatioa Cases 815 (SCj held that sections 168 and 169 offhe Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as aa active explorer aad seeker of truth who is required to 'hold an iaquiiy into the claim' for determining the 'just coiupeasation'. The Tnbunalshould fherefore take x X / ^^•>it^.1-.*.i*ii--?-~—". ^^_JL^» an active role to ascertaia the true aad correct position so that it can assess the 'just coinpensation'. 11. The claunants appeal is for enhaaceiaent of the quaatum, therefore, we are of the opiaion, first the above inentioned points are to be determiaed by fhe claiins Tnbunal aad then only the question ofquantum would arise. 12. In view of the above, we aUow M.A©Nos. 655/2008 & 1009/2008 in part, set aside ftie impugaed award dated 18.02.2008 and remit tbe matter back to the Tribunal for decision afresh ia Ught of fhe observations made hereiaabove. The Tribunal shatl conduct enquiry on the above points under rule 226 of C.G. Motor Vebicles Rules, 1994 which provides that the Clauns Tribuual shall obtain whatever uifonnation and documents which inay be found necessary. Further the parties shall be aUowed to amend the pleadiugs, adduce further evidence, if any, file fhe docuinents or get the documents verified etc., and fhereafter fhe TribLmal shaU decide fhe claun petition afresh at the earUest ia light of the observations inade hereia above. The Parties shaU appear before fhe Tribunal on 06th of April. 2011. TIie Tribunal shall make aa endeavor to decide the clami petitioa as early as possible preferably wifbia a period of six raonths. * 13. Siace the niatter is reinitted back to fhe Tribuual for decision aS'esli, tbe claimants inay ^itate their poiut of quaattmi. Hence, fhe appeal filed by fhe claimaats i.e., 749/2008 has becoine infi-uctuous. The appeUant/ Insuraace Coinpany has xaoved\au -a.ppUeatioa for amendnient ia the pleadiag but siuce we have already directed fhe Tribuaal to atlow fhe parties to amend pleadiugs, it inay inove appUcation before the TribuBLal. 14. The amourit which has already been deposited by fhe Insuraace Company shaU remain in fixed deposit with aay NationaUzed Baak till fhe award is inade afi-esh. 15. In the rcsult, M.A(C).Nos.655/2008 & M.A©No. 1009/2008 are atlowed in part aud M.A©No.749/2008 is dismissed as iafructuous. / > Sd/- 1-M.Quddusi Judge Prashant Kumar Mishra Judge Rao