\i"". • ! r1:.. ^ ) ENassi Bsi.sil IN THE HIGH COURT JUDICATURE AT BILASPUR Misc. Appeal (Cl No. OF 2007 APPELLANT (Irisurer) Versus RESPONDENTS: Glaimant \^^ ^y^. .^'^^•-" Tf ^^''^^ '^s .** .•&,•' Driver of vehicle Owner of vehicle The Oriental Insurance Company Limited, Division Office, Rama Trade Centre, Opposite Rajiv Plaza, Bus Stand, Bilaspur. ., Basant lal Diksena S/o Vishwnath prasad aged about 50 years 2-Pradeep Kuinar Diksena S/o Basant lal Diksena aged about 28 years (Both are resident of Jarhabhata Talapara road Bilaspur Th. + Disst. Bilaspur) (C.G.). 3,.. Mohd. Jahid S/o Mohd. Vahid R/o Banki mongra Indra Nagar Disst. Korba (C.G.) ^4< Khush&swer Singh S/o Nageshwer Singh R/o Amlipara Raipur Th.+ Disst. Raipur APPEAL U/S 173^ OF THE MOTOR VEHICLES ACT AGAINST THE AWARD/ORDER DATED 15.03.2007 PASSED BY THE 6*h_UPPER MOTOR ACCIDENT^^LAIM TRIBUNAL, BILASPUR (C.G.] PRESIDING OVER BY SHRI JAIDEEP VIJAY NIMODKAR IN ^CT^. -.--_ C.T.NO(58/OC Appeal valued at Rs. 5,75,000/- Ss Court Fee affixed Rs.l5^/_-^ HIGH COURT QF CHHATTISGARH, BILASPUR DB: HON'BLE I.M. QUDDUSI & HON'BLE PRA8HANT KUMAR MISHR&, JJ, M.A(Cl. No. 860 of 2007 APPELLANT The Orien.tal Insuraiice Coilipaiiy Ltd Vs. MISC. APPEAL U/S 173 OFTijE MOTORVEHICLES ACT,1988 APPEARANCE: Mr. Ghau Shyam Patel, counsel for fhe AppeUaitt. Mr. Gautam Khetrapal & Mr. Avinashchand Sabu, counsel for respondents 1 & 2. Per I.M. QUDDUSI, J. ORDERLQRALJ (27.04.2011) It' This appeal has been filed by the Insuraiice Coinpaay against the ixupugned award dated 15.03.2007 passed by the VI Additional Motor Accident Clauns Tribunal, Bilaspur, (C.G) ia Claiai Case No. 28/2006. Brieffacts ofthe case as per the version ofthe claimants are fhat on 17.12.2005 deceased Mahendra Diksena alongwith his cousin Riuku Diksena had gone to Baksahi. At about 6.30 p.ni., He was retumiag froni Baksahi to Miingadih. At the same time, on the way, a Truck bearing Regn.No.C.G.04- G/1558 which was being driven by non-appUcant no. l ia a rash aad negligent xuanaer dashed and caused accident, as a resiilt ofwhich, Mahendra Diksena sustaiaed serious head injuiy and he died on the spot. At fbe time of accident, the deceased was aged about 22 years; he was ruiuung a shop named aud styled as Sadhana Enterprises & Electrordcs aad was eaming Rs. 15,000-20,000 per iiionfh. The claunants beiag dependents/legal represeatatives ofthe deceased have ffled Claim Petition u/s 166 offhe Motor Vehicles Act for fhe k RESPOWDENT8 Basaat Lal Diksena and others award of com.pensation to fhe tuae of Rs.82,50,000 on vanous heads. The appeUant got penaissiou u/s 170 of the Motor Vehicles Act. The leamed counsel for fhe appeUaat has chaUeuged fh.e award on two grounds. The first is regarding non- cousideration of the contributoiy negligence aad the second ground is regarding high calculation of fhe amount of coiupcnsation. The leamed clauns Tribimal held fliat the offendiag Truck bearing Regn.No. C.G.04G/1558 which was beiag driven by respondent no.3 ui a rash aad negUgent inanner inet wifh accident ia which the deceased died and it has awarded a total coxnpeusation ofRs.5,75,000/-. Wifh regard to fhe first ground, we have perused the issues. Though issue no. 1 has been framed regardiag negtigence of fhe driver of fhe offendiug vehicle but ia so inaay tenns the contnbutory negligence has not been considered. Wifh regard to fhe quautuin, fhe iucoine ofthe deeeased is based on the balaace sheets prepared by Shri Vinay Kiunar Jaiswal, Inconie Tax Advocate Katghora who has given certi&cate fhat the balance sheets were prepared accordiug to the figures provided by the proprietor for the years 2003, 2004 aad 2005. Therefore, it shows that according to the figures provided, fhe balance sheets for the year endiag 31.03.2003, 31.03.2004 and 31.03.2005 were prepared togefher. No copy of fhe Incoine Tax Retura bas been filed t6 assess the iacoiue of the deceased. Therefore, in view of fhe above, the inatter requires reconsideration at fhe end of the Tribiinal as in section 168 of fhe Motor Vehicles Act 1988 aad Rule 226 of C.G. Motor Vehicles Rules, it has been provided fh.at fhe Claims Tribunal shaU. conduct aa enquiry aad thercfore, it was the duty of the Tribuaal to conduct au enqiiity to ascertain the facts. We are also of the opuuon fhat the claunaats should not be depnved of gettuig fheir genuine and legitunate claim., fherefore, we atlow fhe appeal in part, set aside fhe s~^i~a-&^ "•%.> ^—-^ y£S3»t>i. S , '^sss^ j %..'%^// ''»».V •<t' 7. impugned award dated 15.03.2007 and remit the matter to the Tribunal oiily for fhe Imiited purpose fhat is fbr framing aad deciding fhe issues regarding coutributory negligence as also fhe quantum and assessment of fhe iacoine of fhe deceased aad for fhat purpose the parties shall be atlowed to aiaend fhe pleadiags adduce furfher evidence, file docuxnents or get the documents verified and fhereafter the matter shall be decided afresh. The parties shaU appear before the Tribunal on 12*h of May, 2011. The records ofthe Tribunal shatl be sent back without further delay. Vide uitermi order this Court has directed fhe appellaut to deposit 50% of fhe acaoitn.t awarded, therefore, if the Insuraace Coxupany has not deposited fhe said aiaoiint so far, fhe same shaU be deposited aad fhe claimaats shaU be entitled to receive the same as in fact they are entitled to get coinpensation despite fhere being question regardiag quantuin. Therefore, fhere is no harm if the claunaoits are paid 50% aniount of coinpensation. However, fhe iasurance coiapauy wffl not be liable to pay iuterest if any on that amount. ___— Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge