IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal {C} No. ' ^? ' ^ /2008 APPELLANT ¥i. Bajaj Allianz General Insurance Company . \c\^^^^ Limited, Through Branch Manager, Shiv (^yjp4- ^JV^ Mohan Bhawan, Vidhan Sabha Road, /••^^-^"v..- Pandri, Raipur (C.G.) (INSURER OF ^ ^^v fkj4^ VEHICLE TIPPER N0 C.G. 09/B-0199) ^C^ A(/''v ^ ;...v VERSUS RESPONDENTS t-1) ^2) <~3) ^4) ^5) ^6) 7) ^ 8) Smt. Sharifa Bano Wd/o Late Mohammed Arif Memon, aged about 26 years, Ahmed Memon S/o Late Arif Memon, aged about 03 years, Tosif Memon S/o Late Arif Memon, aged about one and halfyears, Alla Rakha S/o Lte Tar Mohammed, aged about 62 years, Smt. Jubeda W/o Alla Rakha, aged about 60 years, Ku. Hasina D/o Alla Rakha, aged about 17 years, Respondent no. 2 & 3 minor represented through natural guardian Mother Smt. Sharifa Bano, respondent no. 6 minor represented through natural guardian father Alla Rakha, All R/o Aman Nagar, Mova, Raipur Thana- Mova, Raipur (C.G.) (CLAIMANTSl Premlal S/o Shri Bisahu Yadav @ Bisambhar, R/o Santoshi Nagar Raipur (C.G.) R/o Borabandha, Thana Rajim, District Raipur (C.G.)AnotherAddress :- C/o R.S. Khanuja, Manjeet Local Carriers, tatibandh, Raipur Presently Dodekhurd, Thana Dharsiva, District Raipur (C.G.) (DRFVER OF VEHICLE TIPPER N0. C.G. 09/B-0199) Smt. Manjeet Singh Khanuja W/o Ranjeet Singh Khanuja, V.I.P. Road, Telibandha, Raipur (C.G.) Another Address: - C/o R.S. Khanuja, Manjeet Local Carriers, tatibandh, Raipur (OWNER OF' VEHICLE TIPPER N0. C.G. 09/B-01991 r 1 5 MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 isusa COVRT 09 C^MATHBGARH. BILASPUR DB: Hon*ble L M. QWDDUSI & Hoa»bleG. MIHHAJUDDIN, JJ APPBLLANT: RB8PONDBNTS: M. A (Cl No.1717 72008 Bajaj AUiaaz General Insurance Company LM. Vs. Smt Shanfa Baxio & ofhers ^ MISC. APPBAL UNDBR 8BCTION 173 OF THB MOTOR VBHICLBSACT. 1988 Appearance: Mr. Ghaashyam Patel, counsel for tihe appellant. Mr, Arviad Smha, counsel for rcspondents 1 to 4. Per I.M. OUDDVSI. J. ORAL< DBR (2A.06.2011) 1. This appeal has beeii Jfflted by the Insuraace Conipany against the iaipu^ied award dated 30.09.2008 passed by the IX AddL Motor Accident Claims Tribunal (FTC), Raipur (C.G) in Claim Case No.01/2008. 2. Brief facts of the case as per the version of claimaiits are that on 26.10.2007 at about 3.00 a.m., deceased Arifafter parkiag his Auto bearing Regn.No. C.G. 04-T/2366 was standmg therc. At fhat time, one vehicle bearing Regn.No. C.G.09/B-0199 aUegedly driven by Respondent No.7 m a rash aad negHgent maaner dashed ArM, as a result of which, he sustaiaed fatal mjuay and died» At tihe time of accident he was aged about 29 years aod was earamg Rs.400/- per day by driviag fhe Auto. The cfadmaats beiag .-•l^?1 /y^" t'€, 1 ^ J 1 ^•^^ dependente/ legal representatives have filed claim petition u/s 166 of the Motor Vehicles Act for the award of totel compensation ofRs.21,00,000/- onvadous heads. The learaed Claims Tribunal has awanied a total compensation of Rs.4,39,000/- holding that fhe ofiFending vehicle ia question was iavolved in fhe accident m which deceased Arif died and there was no breach of poUcy conditions. We have heard leamed couasel for fhe parfeies and have also gone fhrough fhe rccords ofthe Tribuaal. On perusal of the record, we found fhat fhere is a Certfc&cate dated 20.8.2008 issued from. tfae office of Regional Transport Officer, Raipur vide Ex.D-8 in which it has been certified ffaat Ucense Nuiaber P/4359/R has been issued ia favour of Preni Lal Yadav son of Bteauwha Yadav for drivmg Light Motor Vehicle (LMV) as also Heavy Goods Vehicle (HGV) with effect fix>m 29.7.2005. Thc said license was issued on 21.8.2000. It was vaUd fix>m 29.5.2005 to 28.05.2008, The Insuraace CompaDy has exaniined aii oflBicial namely Prem Narayaa Gupta, Grade-III of R.T.O, Raipur who could not verfcfy the same in absence of any record. It is the duty offhe Tribiiiial oa piovided m section 168 and 169 of the Motor Vehlcles Act as wefl as Rule 226 C.G. Motor Vehicle Rules to ascertaia the trufh for the purpose ofmakmg award, The Insuraace Company should have brought the register fhrough its witoaess to verify fhe certificate but fhe same has not been done aad fhis fact reinamed imdecided. . Only inakiag aa adverse iaference ^aiast fhe msuraace company is not proper as fhe ^ '^.^w^ clauaaants are entifled to get the compensation eifher by fhe owner or by fhe Insurance CoiELpaay. If fhere was no breach of msiiraace poUcy, fhe iasuraace Company would be Uable aad if fhere was breach of icisuraiice poUcy the owner would be liable to pay compensation. Therefore, we allow this appeal ia part and remit the Baatter back to the Tribunal t6 decide the questfon of Uability part only afbesh. For fhat purpose fhe pardes shall be attowed to axaend fhe pleadiags^ to adduce evidence^ fiile further docuinents or get fhe docuinents verifiied etc. and fhe UabiUty part that is issue no»5shall be decided aJfresh. We make it clear fhat the quaotum part shall xiot be disturbed except on the written appMcation of ftie parties. However after deciding fhe said issue and makmg a ifesh awaid, it will be open for fhe aggrieved party to file an appeal oa the question of quaatum eifher for enhaacement of conipensation amount or for reduction. The iasurao.ee coiutpany inay challenge the quaiitum in appeal if pennission u/s 170 offhie Motor Vehicles Act is graated. It is made clear (hat except issue no.5, no other issue shall be disturbed, The parties shall appear on 26th <rfJulv 2011< The records of fhe Tribunal shaH be sent back witfaouit further delay. Siace the matter is remitted back, the cross objectioiis filed by fhe Clauxiaiits cacinot be decided by this Court and fhe same staad disposed ofwith fhe above observatiaas. Rao Sd/- LM.Quddusi Judge Sd/- G.Minhajuddm Judge ^