^tT ^-. Appellants ^f^ ^'y A •-:'.^ t-r-^- IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH v\ AT BILASPUR M.A.(C.) No.....^.^.":../2009 1) Vijay Kumar S/o Jeevan Lal Aged about 26 years, 2) Deepak Kumar S/o Jeevan Lal, Aged about 27 years, 3) Sourin Bai W/o Jeevan Lal Aged about 50 years, AU are resident of Subhash Nagar Ward Dhamtari, Tahsil 8s District Dhamtari (C.G.) Versus 1) Prabhu ram S/o Mannu Ram M^>^ i^\ ^' (STo^ChhotelalYadf Aged about 30 years, R/o Padampur, Post Sihawa, Tahsil Nagar, District Dhamtari (C.G.) 2) Ghanshyain Das S/o Girdhari M/s Niraj Agro Industries Raipur Road, Dhamtari Tahsil and District Dhamtari (C. G.) Permanent Address: Nearby Shankar Mandir Katora Talab, Raipur, Tahsil & District Raipur (C.G.) Respondents MEMO OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988. ___1^ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: HQN^BLEMR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. n Appellants Respondents M. A. fCI No. 550/2009 Vijay Kumar and others Vs v Prabhu Ram and another t^'\ Mr. Sanjeev Verma, counsel for the appellants. None for the respondents, though ser^ed. ORDER (Orall (15th July, 2011) Per I.M. Ouddusi, J; 1. List is being revised. The case was called out twice, but no one is present on behalf of the respondents. However, learned counsel for the appellants Shri Sanjeev Verma, who is present, is pressing his appeal. Therefore, we have heard him only and proceeded ex-parte against the respondents. 2. This appeal under Section 173of the Motor Vehicles Act, 1988 has been filed by the appellants/claimants against the award of Motor Accident Claims Tribunal, Dhamtari (in short "the Tribunal??), dated 27th September, 2008 passed in Claim Case No.80/07 dismissing the claim petition of the claimants, inter alia, on the ground that the accident had not taken place due to rash and negligent driving of the driver of tractor bearing Chassis No. PY 5103/A/000884, Engine No. PY 3029/D/130790 8s Trolley No.0648 (hereinafter called as "offending vehicle"). 3. Brief facts of the case are that on 23.1.2007 respondent No.l was driving the offending vehicle, which was owned by respondent No.2. On the date of incident i.e. 23.1.2007, as soon as deceased Jeevanlal Dewangan, after attending the call of nature, reached near his bicycle standing by the side of the road for returning home, at that time respondent No.l by rashly and negligently driving the offending vehicle caused accident, as a result of which Jeevanlal sustained grievous ,-?<\ i'^s^ ? 'i^S^i^^ ; %1-.^ ^G injuries and died on the spot. Report of the accident was lodged by the eyewitnesses at Police Station ~ Dhamtari, whereupon Cr.No.76/07 was registered against respondent No.l for the offence punishable under Sections 279 85 304A of the IPC. After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Dhamtari. At the time of accident, the deceased was 53 years and was earning Rs.300/- per day by tailoring business and on account of his death, the claimants have been deprived of their livelihood. Therefore, with the aforesaid averments, they filed a claim petition before the Tribunal for a total compensation of Rs. 19,00,OOO/- against the death of Jeevanlal Dewangan. 4. Heard learned counsel for the appellant, perused the lower court record (LCR) as also the impugned award. 5. The postmortem of the deceased was conducted by the doctor on 23.1.2007 at 12.20 p.m. From perusal of the postmortem report (Ex P/7) it is evident that the doctor has found as many as 12 injuries on the body of the deceased in which there were four contusions, one multiple contusion, seven abrasions and one injury on the scapula region. Further, the doctor reported that there were three fractures; contusions were on the middle vertebra region, rupture was apparent on the stomach and clotted blood was present around it. The cause of death has been mentioned as a result of injuries caused in motor accident. But the Tribunal has held that the deceased himself had fallen down on the stones in a drunken state and sustained injuries and as such, it was not a motor vehicle accident. Looking to the medical report, it is beyond the imagination that a person simply falling on stones, even in drunken state, would receive such multiple injuries and fractures. Thus, it is apparent to us that learned Claims Tribunal . has not conducted a proper enquiry to know the real truth. 6. Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicles Rules, 1994 provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation. It appears that the Tribunal has given pervrerse findings without ascertaining the true facts. No proper enquiry was conducted for arriving at a correct decision by the Tribunal. Section 169 of the Motor y^"\ ^,:^ ^ Vehicles Act, 1988 and Rule 226 of the Madhya Pradesh/Chhattisgarh Motor Vehicles Rules, 1994 reads as under. <( 169. Procedure and powers of Claims Tribunals. - (1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry/' 226. OBTAINING OF INFORMATION AND DOCUMENTS NECESSARY FOR AWARDING COMPENSATION UNDER SECTION 40-. The Claims Tribunal shall obtain whatever information and documents which may be found necessary from the police, Medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appointed date. 7. Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kumar & another { 2010 (12) SCALE} in para 11 has held that UThe Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent ofpermanent disability. Sections 168 and 1 69 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to (hold an enquiry into the claim' for determining the 'just compensation\ The Tribunal should therefore take an active role toascertain the true and correct position so that it can assess the 'just compensation\" w"^ ^ 8. In view of the aforementioned statutory provisions of law and the decision of Hon'ble Apex Court in Raj Kumar (supra) it is evident that the parliament has enacted benevolent provisions of law in the interest of the persons who received bodily injuries or in the interest of the legal heirs of the persons who sustained death in motor accident cases. Having regard to the facts and situation and the benevolent provisions of law we are of the considered opinion that the Claims Tribunal should not have dismissed the claim petition without properly considering the medical evidence and without making an enquiry i.e. to call for the doctor to give evidence, who had conducted the postmortem if that doctor was not produced in the witness box by either of the parties. 9. In view of the above, in our opinion, the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this appeal in part, set aside the impugned award and remit the matter back to the claims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. ^ 10. 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 fmdings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall also conduct an enquiry into the claim ^ for determining the just compensation. Even the doctor who conducted the postmortem of the body of the deceased may also be summoned for his statement. Police record shall also be summoned for determination of true facts. 11. Parties shall appear before the Tribunal on 8th August, 2011. 12. LCR shall be sent back to the Tribunal without further delay. 13. No order.as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Khan/ Thakur