^ -> (.^•>r' IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) N0, Q^^ 1 2009 S'f^APPELLANT ^INSV^ED) RESPONDENT N0. 1 •y^.^ J W. O. Vijay Sansawal, son of Late Shri Kartar Sansawal, aged about ^ • years, resident of SGC Kusmunda Project, Korba, Chhattisgarh ^;?::v^ t^." RESPONDENTS : / CLAIMANT5 / t^0^1b^7 A/^^ VERSUS ^ ^k" Smt. Draupadi Devi, wife of Late Shri Gajanan Prasad, aged about 31 years ^ 2^ Ku. Asmita, daughter of Late Shri ^^ Gajanan Prasad, aged about 13 years Q. ^z Avdesh Kumar, son of Late Shri Gajanan Prasad, aged about 11 years 4.^ Ku. Annapurna, daughter of Late Shri Gajanan Prasad, aged about 08 years Respondent Nos. 2 to 4 being minors through their mother respondent No. 1, Smt. Draupadi Devi Punaram Patel, son of Late Shri Rajaram Patel, aged about 59 year 6, Smt. Ramayan Bai, wife of Shri ^" Punaram Patel, aged about 55 years ^s^ All residents of village Naraibodh, Thana Kusmunda, Tehsil Katghora, District Korba, Chhattisgarh Bajaj Allianz General Insurance Company Ltd., Shiv Mohan Bhawan, Vidhan Sabha Marg, Pandri, Raipur, Chhattisgarh MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT1988 HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (Q No.780 of 2009 Appellant J. W. O. Vijay Sansawal Versus Respondents Smt. Draupadi Devi & others AND M.A. (QNo. 1211 of 2009 Appellant Bajaj Allianz General Insurance Company Limited Versus Respondents Smt. Draupadi Devi 85 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 -» DB: Hon'ble Shri I. M. Quddusi 8s Hon'ble Shri Justice N. K. Agarwal, JJ Shri Ashish Shrivastava, Advocate for the appellant in M.A.(C) No. 780/2009 and for the respondent No. 7 in M.A.(C) No. 1211/2009. Shri S. S. Rajput, Advocate for the appellant in M.A.(C) No. 1211/2009 and for the respondent No. 7 in M.A.(C) No. 780/2009. Shri V. K. Dubey, Advocate for the respondents No. 1 to 6. ORDER (Oral) ( Passed on this 23rd day of November, 2010 ) Per I. M. Quddusi, J. Heard. 1. Both these appeals (M.A. (C) Nos. 780 and 1211 of 2009) arise from the impugned award dated 30th March, 2009, passed by the Additional Motor Accident Claims Tribunal, Katghora, District - Korba in Claim Case No. 356/2007. The owner as well as the Insurance Company has filed these appeals challenging the liability. 2. The, brief facts, in nutshell, are that deceased Gajanan Prasad Patel was engaged as driver by the S.G.C.C. Company. On 11.6.2007 at about 3.45 in the night the deceased was driving the Truck, bearing registration No. C.G. 12-C/0430, which was loaded by coal and that coal was to be unloaded at C. H. B. Kusmunda.At that time because the mines at Kusmunda m Jr 6. caught fire, hot ashes had fallen on the truck, which inserted in the nose, ear and moth etc. of the deceased and thereby he sustained grievous injuries. The deceased was taken to the District Hospital, Korba by one Vinod Kumar Shukla from where he was referred to Apollo Hospital, Bilaspur and during treatment Gajanan died on the next day. The report of the incident was lodged in the police. The claimants, being legal heirs of the deceased, filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 15,00,000/~ under various heads. Learned Tribunal, having regard to the facts and evidence on record and the provisions of Section 166 and 163 ,(A) of the Act, 1988 awarded a total compensation of Rs. 10,24,000/- to the claimants. We have heard learned counsel appearing for the parties and perused the lower Court records. In the facts and circumstances mentioned above, it has not come in the evidence that the driver of the vehicle had gone to enter into the mines area and there were hot assess falling with the force ofair and the driver got burn injuries and his eyes were also affected. Thus, it was to be examined as to whether the S.E.C.L. was also negligent or not. A question should have been^determined in this regard but the Tribunal has failed to determine the same. Besides this, the S.E.C.L. was also not impleaded as a party, whereas the mining area and the mines belong to the S.E.C.L. Apart from the above, the claimants have a choice to file the claim petition either under Section 166 or 163 (A) of the Act, 1988. In Section 166 it was necessary to prove that the driver was himself negligent and in a claim under Section 163(A) there was no necessity to prove the negligence. In view of the foregoing, we are of the opinion that it is a fit case to remit the matter to the Tribunal to decide afresh in the light pf the observations made herein above. Therefore, we allow both fhe appeals in part, set aside the impugned award dated 30.3.2009 and remit the matter to the '•^^•^^' ^WI^ Tribunal for decision afresh in the light of the obser^ations made hereinabove. 8. The claimants would be free to implead S.E.C.L. and may amend/convert their claim petition according to their wishes. Needless to mention that the Tribunal shall provide opportunity to the parties to adduce further evidence again in support of their pleadings and may file further documents. Thereafter, the decision shall be made by the Tribunal, as early as possible, preferably within a reasonable period. 9. The parties may appear before the Tribunal concerned on 5thJanuary, 2011. 10. It is further directed that if any amount has already been deposited pursuant to the impugned award, the same shall not be allowed to be withdrawn by any party till the award is made afresh. 11. Accordingly/both the appeals are allowed in part to the above extenf. No order as to costs. 12. The Registry is directed to send back the papers, requisitioned from the Tribunal, forthwith. Sd/- LM.Quddusi Judge Sd/- » N.K. Agrawal Judge Thakur