a— ^ CF- IN THE HON'BLEHIGH COURT OF CHHATTISGARH AT BILASPUR M.A. (C) No.- |3^, /2009 '^ s^. ^nfn i8 ®glii.»SI APPELLANT , ^.^:y^ ^yyy ^wy"\ ^ •^.-' sj .••• .,-^' THE ORIENTAL INSURANCE COMPANY LIMITED, REGISTERED & HEAD OFFICE ASIFALI ROAD, NEW DELHI - 110002 THROUGH BRANCH MANAGER, BRANCH OFFICE, ADARSH BAL MANDIR ROAD, DHAMTARI (C.G.), TAHSIL & DISTRICT- DHAMTARI (C.G.) AND DIVISIONAL MANAGER, DIVISIONAL OFFICE, STATION ROAD, MALVIYA NAGAR, DURG, TAHSIL & DISTRICT - DURG (C.G.) Vrs, RESPONDENTS/CLAIMANTS :- ^ MEENABAI SAHU AGE ABOUT 40 YRS. W/0 SHRI RAMLAL SAHU, RESIDENT OF VILLAGE TELIGUNDARA, POST TELIGUNDARA, THANA - PATAN, TAHSIL - PATAN, DISTRICT - DURG (C.G.) RESPONDENTS/NON-APPLICANTS :- ts .Wf. SURESH KUMAR NIRMALKAR S/0 TIKARAM NIRMALKAR, RESIDENT OF ABHANPUR RAIPUR (ABHANPUR, BEHIND OF BUS STAND), THANA - ABHANPUR, POST-ABHANPUR, TAHSIL - ABHANPUR, DISTRICT - RAIPUR (C.G.) RAM PRASAD FARIKAR S/0 SHRI GHANARAM FARIKAR, RESIDENT OF ABHANPUR, BEHIND OF BUS STAND, POST - ABHANPUR, THANA - ABHANPUR, TAHSIL - ABHANPUR, DISTRICT - RAIPUR (C.G.) LIMAN KUNWAR AGE ABOUT 20 YRS. S/0 PADUM SINGH KUNWAR, RESIDENT OF VILLAGE -MOHATARA, THANA- RAZIM, POST RAZIM, TAHSIL - ABHANPUR, DISTRICT - RAIPUR (C.G.) A. ..2.. y' ..2.. 5. RAMLAL SAHU AGE ABOUT 45 YRS. S/0 LATE SHRI PURUSHOTTAM SAHU, CASTE - TELI, RESIDENT OF VILLAGE - KODAPAR, POST - KODAPAR, THANA & TAHSIL - KURUD, DISTRICT - DURG (C.G.) (FATHER OF DECEASED SUMIT KUMAR) APPEAL UNDER SECTION 173 OF MOTOR VEfflCLE ACT 1988 1 y HIGH COURT OF CHHATTISGASH AT BIIASPUR APPEUANT M.A. (Cj N0. 136 OF 2009 The Oriental Insurance C-ompany Limited. Veraus RESPONDENTS- Meenabai Sahu and ofhers. ^ \ APFEAL UHDES SECTION 173 OP THE MOTOR VBHICLES ACT. 1988 Siarie Bench: Hon'ble Shri G. Minhaiuddin, J. Presenti Shri Sudhir Agra-wal,, cou-nsel for fhe appeUant Sliri C.R. Sahu, counsel for respondents No. 1 & 5. Shri S.P. Saliu, counsel for respondents No.2 & 3. ORALOKBER ' $Passed os 11»-day of July, 2011| Thls appeal has been filed uiider Section 173 of fhe Motor Vehicles Act (for short the Act'j agaiiist the ia'ipugiied awaru dated 28-11-2008 passed by the Ninth Addiyonal Motor Accident Claims Tribmial (F.T.C.), Om'g *•• " (for short tlie Claims Tribunai) m Claii-ja Case No.64/2007 by fhe appellant - Insurance Company, iuiposliig Uabuity for payraent of compensation on tiie appeUaiit/Insiit'ance Company jointiy and severally along with the owiier and driver of the MaliuTidra Jeep bearuig registt'ation No. C.G. 04-ZA/2299 i.e. respondents No.3 & 2 respectively. 2. Brief facts of fhe case as projected by tl'ie clakuant are fhat non-applicant No.2 is flie owner of fhe Mahuidra Jeep beai'mg registi'ation No. C.G. 04-ZA/2299 and non- applicant No.3 is the insurer- of the Malundra Jeep. On 25-02-20p7 deceased S-tUBit Kumar wliUe driving tlie Tfactor-Trolley beai-mg registi'ation No. C.G. 04-D/0411 aiiu C.G. 04-D/041?, was dashed by Mal'iindra. Jeep ^S-l. i-K ^t. F: bear'lng registi'auon No. C.G. 04-ZA/ 2299, due to rash aiid negligent driving of tlie cu'iver of flie Maliiiidi'a Jeep, as a result of which deceased uied in the accideriL. 3. The clsJjiiajiL i.e. niotlier of uic deceased uad filed a petitlon 'LUider Section 166 of uie Act, befor'c the Tfibuiial ciaimuig a. (.ocai corupensauon 01 KS./,du,uuu/- lor uie deafh of hei" soii iii fhe accident, under various heads. 4. Leai'neu Iribui'iai. ou a close scrutuiy ot eviucuce led, ruaterial placed an.d submissions niade by tlic pai'ties, has awarded a suiii ofRs.2,54,500/- along wifli iiiterest @ 6% per auuum fr'om ftie date of application and has helu tliat the Insurance Coinpaiiy is Uable to pay the amount of couipensation to the clauuant 5. Sl'u'1 Sudliu' Agr'awal, learned counsel for fhe appeUaiit subinits tiiat application under' Sectlon 170 of thc Act l-ias been allowed by tiiie Claims Tribunal and flie appeUaut/Insuraace company 1s challenging fhe iiapugned award as regai'us fhe Uabiuty as well as fhe quaiitani. He further contends tliat F.I.R. was lodged immediately after the accident, against the driver of fhe tractor-u'olley beai'mg registt'ation No. C.G. 04-D/0411 arid C.G. 04- D/0412 aiid aii ofience Luider Sectlon 304-A ofI.P.C. was .r'ey.stered aiid after investigation, cl-iarge-sheet was filed for the said offence uiider Section 173 of flie Cr.P.C. As sucli, uie accident had occun'ed on account of rash and negligent drivuig by tiic driver of the Tractor-trolley but the liaouity to pay the aiuount of coiupensation has been fastened orily on tlie appellaiit/'InsLuaiice Company who is msLU'er ot'Jeep ueariiig registi'ation No. C.G. 04-ZA/2299. Learned counsel for the appeUant has fui'fiier contended that the learneu Claims Tribunal ui para 41 of fhe uupugried award has speciucaUy helu fuat fhe accident occuned on accoLUit of contributojy negugence of bofh fhe drivers of Jeep aij.u.Tractor-trouey. He contends fhat uie owner of fhe offendliig veMcle (Tractor-trolley) who is a necessai'y parly has not been impleaded as party, on account ofwhich the iuipugned award stands vitiated. 6. Slii'i C.R. Sahu, learned counsel for respondents No. 1 & 5 aiid Stir'i S.P. Sahu, leai'ned counsel for respondents No. 2 & 3 have supported. the award iuipugned anu state fEiat fhe accideiiL had occurred on account of sole negiigence of the tii'iver of the Jeep because alfhough at flie releyant tiaie one of the liguts of ttie tractor-u oUey was on, but by exercising due care and caution, fhe driver of the Jeep could have located the Tractor-troIIey. 7. I have perused the record ofthe Claims TribLUial. The owner of fhe Tractor-trolley has not been niade a pai'ly in ttie claiiu petition filed under Section 166 of fhe Act. Froin fhe docLuiients available on record, it is clear that fhe F.I.R. was lodged by Siiklilal who was one of fhe occupants of the Jeep aUeguig gross negligence on fhe part of fhe driver of the Tractor-u'oUey aiid offence uiider Section 304-A of I.P.C. was registered agauist the driver of the Tractor-trotley auu after uivestigation, chai'ge-sheet has been filed agaust him. Frora perusal of the award iiupugned, it is clear that apart froiu. oftier paras, in para 41, fhe Clamis Tribuiial has spect&cally held fhat fhe acciuent had occutTed on accouiit of the negligence of bofh the drivei's of Jeep and Tractor-troUey. Despite holdliig conti'ibutory negUgence of bofh fhe drivers, fhe Tribuiial has held oilly fhe driver of the Jeep as r'esponsible for fhe accident. In addition to ttiis, fhe Clauns TribtUial wlille computing fhe loss of dependency, has deducted l/3rd aiuoiint towards personal and livuig expenses of tlie deceased which should have been % (lialf), ui view of fhe , fact that the deceased was a uachelor, as such the 'deduction of l/3rd towards personal and UvuTg expenses of tlle deceased is not proper as it is against fhe di^ynx-of Hoiiljle 'uie Supreiue Coui'l ui Setrla. Verma. (Sint.) and ocners —vs-Delhi Trcsnsport Corporcsion dnd another reported iii AiK 2009 SC 3204. Iii vlew- ofwhat. has been mentioned above, fhe matter requu'es reconsideration at the end of fhe Clalnis Tributial because fhe leai'ned Claims Tribunal has not conducted proper enqiiuy, as per fhe provisions of Sections 168 aad 169 of tlie Motor Vehicles Act arid Rule 226 oftlie C.G. Motor Vehicle RLdes, 1994. 8. In Uiis coruiection, it is necessaiy to mentlon fiie observation of Hon"ole flie Supreme Court m fhe matter of Rcg Kvincu- Vs. Ajcy Kum.ar fUtd another, reporled ui 2010 INDLAW SC 996 : 2010(12} Scale 26S, Uie Hontile Supreme CuLU't, ia para-11, has held thus: "11. The Triburial should not be a sllent spectator when niedical evldence is tendered ui regard to fhe injuries aad theu' effect, ui pai'ticiilar tiie extent of pei'maiient disabllity. Sections 168 and 169 of the Act inake it evident that the Tribunal does not function as a neutral uiupire as in a civfl suit, but as aa active explorer aad seeker of truth who is reqLiired to Tiolu an enquiry into the claim' for' determining the 'just coinpensation'. The Tribiuial shoiilu tlierefore takc an active role to ascertain fhe true and con'ect position so that it can assess the 'just compensation'. WliUe deaUng witti persoiial mjui'y cases, tlie Tribunal shotdd preferably equip itself wifh a ' Medical Dictionaiy aiid a Handbook for eyaluation of pernianeiit physical- impau'ment (for example the Man.uali f1"-'. "a^£^ for Evaluation of Permaiient Physical Impau'ment for Ortliopedic Siirgeons, prepared by American Academy of Orfhopedic Siu^eons or its Indian equivalent or other aufhorlzed texts) for LUiderstandLng the medical evidence and assessing the physical and fLuictional disability. The Tribmial may also keep ui view fhe flrst schedule to fhe Workinen's Conipensation Act, 1923 which gives sonie indication about fhe extent of permaiient dlsabflity m difiFerent types of uijuries, in fhe case of workmen. If a Doctor glving evidence uses technical .medical terras, fhe Trib'anal should instract hlni to state ui addition, in slmple non-medical terms, fhe nature aiiu fhe efiect of the uijuiy. If a doctor gives evidence about fhe percentage of permanent disabilily, the Tribiuial has to seek clart&cation as to whether such percentage of disabliity is the functional disabUity wifh r'eference to tlie whole body or whetlier it is oxily witl-i reference to a limb. If fhe percentage of permanent disabUity is stated wifh reference to a 1irnb, the Tribunal wUl liave to seek fhe doctor's opuiion as to whetlier it 1s possible to deduce the corresponding functional permanent uisabUity with reference to the whole body and if so th^ percentage. _«»<- o 9. In the result, the appeal is allowed ui part and fhe award impugned is set aside and the rnatter is remitted back to fhe Clauns Tribunal for conducting proper enquiry and after impleaduig (he owner of the Tractor-trolley as non-appllcaut, to pass an award atresli. 10. Needless to mention fhat tfae parties shaU be provided opportunlty to amenu fhe pleadmgs, adduce further evidence, file documents or get the dociinients verified ete., on fhc basis of the pleadings already on r-ecord. Thereafter, furfher enquiiy may be conducted by fhe Clairas Tribunal as provided uiider Sections 168 & 169 of fl-ie Act, 1988 aiid Rule 226 of flie C.G. Motor Vel-iicle Rules, 1994. 11. The parfies shall appear- before fhe Clauns Tribunal on 01-08-2011. 12. The records of fhe Clainis Tribunal shall be sent back wifhout any furuier delay. 13. As per order of tliis Com-t dated 10-02-2009, tlie appeUaut/lasiirance Conipaiiy has deposited 50% of the ainoutit of Compensation which has been disburaed to fhe clauuant/respondent No.l, this deposit made by fhe appellant/Insurance Compaay shaU be subject to fhe decision of fhe Tribunal afi'esh. 14. No order as to costs. Sd/- G. Minhajuddin Judge