IN THE HIGH COURT OF JUDICATUREAT BILASPUR MISC, APPEAL [c] NQ. 0^2008 APPELLANT The Divisional Manager, Oriental InsurQncz Company e" ^- ^T®< (Insurer»)^1.^1 \^-IH"^ ^..•<-"^v ^%^^B' ^ Limited, Matviya Nagar, Durg ^.-•" ^^ .••••" f ^ 4"^ ...p^"g^ ^4MS"".....\-(t"l"$t (CG) .•••• ^•••" Vs ^^ ,, d^.r RESPONbENTS Claimant ^l. Shankar Lal DevGngan, son Gas I^JWelding Operator & Owner of tKe Shop of Shri Jagdish Devangan, aged about 24 years, resident of Village bevarbeeja, Near Bajrang Chowk, Tehsil Berla, P.5. Bemetara, Di.strict Durg. 2. Pradeep Mukherjee, son of Shn' S.R. Mukherjee, OccupQtion-'&as Welding Shop, Transport Nagar, Hathkhoj, Bhitai and resident of Subhash Nagar, ^ Near Hospital, Bhilai. P.S. Chhawni, bistrict Durg. Owner of truck ^T^ 3. Harvinder Singh Bhatia, son of Shri Santosh Singh Bhatia, resident of Bhatia Butk Cam'er, Transport Nagor, Village Hathkhoj (Bhilai-3) P.0. <& P.S. Bhilai-3. 4. M/s Minwool Rock Fibers 6 >^ Ltd., Office <& Factory at Village RewGngahan, behind waiting hall situated at G.E. Road, behind the pond, Village Rewangahan, Post Pendri, Tehsil & District RajnandgQon. Office & transport place; AA/s J.P. Roadways, Bhatia Bulk Carrier, In front of Azad S.T.D. Road, Plot No.49/C/10, Tronsport Nagar, Hathkhoj, Bhilai P.0. Housing Board, Jamul, Pin No.490 026, Bhilai, Tehsil and bistrict Durg. ' APPEAL U/S 173 Of THE MOTOR VEHICLES. ACT AGAINST THE AWARD/ORDER bATED 15.2.2007 ^ PASSEb BY THE >th ADDITIONAL MQTQR^ ^ ACCIDENT CLAIMS TRIBUNAL. bURG CF.T.C.) PRESIDE& OVER BY SHRI V.K. EKKA. IN CLAIM CASE N0.128/2006, *S2SSES r^ HIGH COURT OF CHHATTISGARH. BILASPUR DB: HON'BLB I. M. QUDDUSI 8s HGN'BLB G. M2NKAJUDDIN, JJ APPELLANT: RESPONDBNTS: M.A(g No. 1296/2008 The Divisional Maaager, Oriental Insuraiice Co. Ltd, Durg Vs. Shaiikarlal Dewangaa & ofhers MISC. APPEAL UNDER SECTION 173 OF THB MOTOR VEHICLBS ACT,1988 Appearaffice: Mr, Abhishek Smlia, counsel for tlie appeUaat, Mr. Aimyakaiit Tiwari, appears on behatf of Mr, B.S. Khanuja, counsel for Respondent No, 3. Per LM. QUDDUSI, J, ORAL ORDBR (30.08.2011) \(t 1. This appeal has been filed by fhe Insurance Coinpaiiy agamst the unpugned award dated 15.02.2007 passed by tlie IX Addl. Motor Accident Claitns Tribunal, (FTC), Durg (C.G) m Claim Case No. 128/2007 aUowiag ttie claim. ofrespondent no.l, 2. Brief facts of fhe case as per tlie version of the claioiaiit/injured are fhat he was employed as Helper ia Truck bearing Regu.No. M.P.24-C/4535 owned by respondent no.3 hereia. On 31.03.2001, fhe vehicle was brought to Kedia DistiUeries, Bhilai and there was leakage ia the fuel taiik of the Truck, Therefore, fhe Taiik was reinoved and taken to the shop of respondent no.2 naraely Pradeep Mukherjee where fhe fael tsiik exploded when fhe weldiag work was betag doue, It is atleged fhat due to explosion of th.e fuel taak ia tlie weldiag 1 I I ^SaS^st^j j y shop, the clamiant sustamed raultiple iajuries on tlie head, han.ds, legs aad various parts offhe body aad his left haad was ainputated above the elbow aad he became pennaaentiy disabled. Therefore, he has filed Claioi Petition u/s 166 oftlie Motor Vehicles Act, 1988 for fhe award oftotal comLpensation of Rs.11,75,000/-. 3. The leamed Claims Tribunal havmg regard to tiie facts situatiou, m.aterial and evidence on record has held that wheu the diesel taiik oftlie Vehicle bearmg No, M.P. 24-C/4535 was beiag welded accident took place as a result of which thie clauiiaiit sustaiaed uijuries and fhe clairaaiit is entitied to receive a suni of Rs.5,70,725/- from tlie non-appUcaats joiafly and severaUy. 4. In case of Orientnl Insurcsnce C^mpany -vs- Meena Variyal (2007) 5 SCC 428,Hoiifble the Apex Court held that it may be <, triie tliat the Motor Vehicles Act, iasofar as it relates to claiais f' for corapensation arisin.g out of accidents, is a beneficent piece of legislation, It raay also be true that subject to the niles niade ia tiiat behatf, fhe Tribunal niay foUow a suminaiy procedure ia deaUng with a claim so tliat it does not meaa fhat a Tribunal which has been approached with a clabxi for corapensation under fhe Act shoiild ignore all basic prmciples of law m deteniimiag fhe claim for compensation. Therefore, under general pnaciples, firstly, fhe driver ought to be impleaded beforc aa adjudication is claimed u/Section 166 of the Act 5. Furfher iii case of Oriental Insurance C^mpany Ltd^ -Vs- Prem.lata Shukla. and others (2007) 13 SCC 476, Honlole the Supreme Court has held that proof of rashness aad r :^.\ •v;?;.^^i;;r^, -:.^^^ 8. negligence on fhe part of fhe driver of the vehicle is sine gva non for m.ahitain.uig an appUcation uiider Section 166 of the Act. In tiie instaat case, th.ere is no such aUegation agaiast tlie driver. The allegation has been niade against the welder respondent no.2. The diesel taiik froiu tlie body of the vehicle was detached and was taken to tlie welder's place. The tank was not detached froni the vehicle under ftie uistructions of tiie to welders, niay be under fhe insti'uctions of tiie owner, driver or fhe representatives of fhe owuer of the vehicle, as fhe case iiiay be. But ia fhat case, a claiia petition u/s 166 of the MVA would not at aU be laaintaiiiable. It was not an accident arisuig out offhe use ofthe motor-vehicle aad fherefore, in our opinion, fhe Tnbunal has conunitted uiaiiifest error of law in niakiag the award io. a claim petition which was not laanitainable at all. In view of tiie above, we allow this appeal, set aside fhe mipugued award dated 15.02.2007 aad it is held fhat tlie claun petition was not inaintaiaable. However, we are of fhe opiaion th.at fhe clamiasit should not be deprived of his just clami aad fherefore, if he has adopted a reraedy which was not available to hhn, it should have been open for hiai to file a claisii petition under the remedy available to him either before fhe Commissioner, Workraen's Coinpeusation Act or before aay ofher coiapetent foruni. Therefore, we give liberty to the claimaiit to file a claim petitiou or a suit as the case may be under fhe reniedy available to him. It is to be noted that fhe accident took place on 31,03,2001 and the claira petition was filed on 19,06.2001 which was ...^ Rao disposed of on 15.02.2007 allowmg fhe claim and this appeal was filed on 16.06.2008 aad is being disposed of today 30.08.2011 but since this Court has held that the claim petition was not niaiatamable, option has beeu given to tlie claiinaat to file a inaiatauiable claim. petition. 9. The amount deposited by the appeUaat shaU be aUowed to be wifhdrawn by it and ifthe amount has akeady beeu disbursed to the clauiiaat, it wUl be opeu for fhe appeUaat to recover from fhe claiuiaa.t or tlie owner. 10. In fhe result, tlie appeal is allowed, No order as to cost Sd/- I.M.Quddusi Judge Sd/- G.Mmhajuddin Judge