Sismla "snsa Q^m IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.0.1 M.A.(C) No. .11./(ro OF seee o^ (APPEALyALUED^AT Rs,l, 67.000 /-l APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACTS, 1988. APPELLANT (NON-APPLICANT N0.21 ^£-?^>^X>^-T^_ (APPLICANT N0.1) ^PPLICANT N0.2) ^' 1. •^' ^-^ 2. ^^N-(APPLICANT N0 JW^- ^^•^ , \ ....vb \^:-" (?..^'-^^.(^'•i^^ ^ ^S'N.^-GJ*.^-" J^ p^S8RW—^^.V^-K ^^•••••••^ Branch Manager, The New India Assurance Co. Ltd. Rajendra Nagar Chowk, BHaspur, (C.G.) VERSUS Anjana Devi W/o-Late Jashpal Devani, Aged about-45 years, Vijay Kumar Devani S/0- Late Jashpal Devani, Aged-16 years, Both are R/0-Kargi road- Kota, Tahsil Kota, Dist BUaspur, (C.G.) Vishnu Prasad Soni, , S/0- Shri Jagnnath Prasad Soni, aged- years, R/0 - Achanakmar, TahsU- Kota, Distt.- BUaspur, (C.G.) (Owner of Vehicle Hero Honda Motorcycle No. M.P.26K.D.-2227 ) ,0 HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: HON'BLE MR. G. MINHAJUDDIN. J. M.A.(ClNo.11000F2007 Appellant Respondents Vs Branch Manager, The New India Assurance Co. Ltd. Bilaspur (CG) Anjana Devi and others Present: Mr. Dashrath Gupta, counsel for the appellant/insurance company. Mrs. Anju Ahuja, counsel for respondent No.3. None for respondents No. 1 & 2, though served. ORDER (Orall (24th November, 2011) 01. List is being revised. The case was called out twice. However, no one is present on behalf of respondents No. 1 & 2/claimants, despite service of notice. Therefore, respondents No.1 & 2/claimants are being proceeded ex-parte. 02. This appeal has been filed by the appellant/insurance company under Section 173 ofthe Motor Vehicles Act, 1988 against the award dated 5.4.2007 passed by the Additional Motor Accident Claims Tribunal, Bilaspur, (in short "the Tribunal") in Claim Case No. 137/2007, whereby liability to pay compensation to respondents N6. 1 & 2/claimants has been fastened upon the appellanVinsurance company. 03. Brief facts of the case, as per averments made in the claim petition, are that on 18.12.2004 Premchand Dewani, while riding on motorcycle bearing registration No. MP 26/KD-2227, died due to accident. Report of the accident was lodged in Police Station - Kota. At the time of accident, the deceased was 20 years of age and was earning Rs.3300/- per month by doing the work of painting. Therefore, the claimants, who are mother and brother of the deceased, being his legal heirs/dependents, filed a claim petition under Section 163A of the Motor Vehicle Act, 1988 (in short "the Act, 1988") before the Tribunal fqr a total compensation of Rs.4,26,900/- under various heads. ' \ 04. However, learned Tribunal, after hearing counsel for the parties, on close scrutiny of the evidence led before it, by the impugned award granted a compensation of Rs.1,67,000/-, fastening the liability upon the appellant/insurance company to pay compensation to the claimants. 05. Heard learned counsel for the respective parties, perused the LCR as also the impugned award. 06. From perusal of the impugned award as well as the LCR, it is found that not a single witness has been examined from either of the sides and as per, what is mentioned in para-7 of the impugned award that on the request of the parties to decide the claim case based on the documents available on record, that the impugned award has been passed. As such, the instant case is, in fact, a case in which there is total want of substantive evidence as the documents, on the basis of which the Tribunal has passed the impugned award, are only corroborative piece of evidence, and not substantive evidence, therefore, the same cannot be sustained. 07. In addition to this, the claim petition was filed under Section 163A of the Act, 1988. However, from perusal of the materiat on record, it is also not clear as to in what capacity the deceased was driving the motorcyclein question, which was, at the relevant time, owned by respondent No.3 Vishnu Prasad Soni. All these facts have to be determined, which will definitely have a bearing on the maintainability of the application under Section 163A of the Act, 1988. However, there is no doubt that the Tribunal has not conducted any enquiry, which it was duty bound to conduct, as per provisions of Sections 168, 169 ofthe Act, 1988 and Rule 226 ofthe CG MotorVehicle Rules, 1994. 08. In view of this, as the Act, 1988 is a social welfare legislation, therefore, it would be proper to remit the matter back to the Tribunal to decide the claim case afresh after affording an opportunity to respondents No. 1 & 2/claimants to adduce evidence in support of their claim^ase and also to the owner, ^J n^ 09. 10. 11. 12. 13. 14. 15. driver and the insurance company to adduce evidence in rebuttal. In the result, the appeal is allowed in part, the impugned award is set aside and the matter is remitted back to the Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. Parties shall appear before the Tribunal on 18 January, 2012. LCR shall be sent back to the Tribunal without further delay. The amount deposited by the appellanVinsurance company shall be refunded to it. No order as to costs. Certified copy as per rules. Sd/- G. Minhajuddin Judge ^