BEFORE THE HIGH COURT OF CHHATTISGARILAT BILASPUR (CHHATTISGARHl ^^ Olvision Bsncll M.A.(QNO. W^ Appellants Clainiants ^'":'4. ^':2.-y ...^y^- ?•••' . ..-^ ^^ ^'. ^' ^••"^ RESPONDENT 1. Durpati Bai W/o Sukhiram Sahu, aged about 40 years, 2. Ku. Vishakha Adopted Father, Sukhirara Sahu, aged about 6 years (Mixior) Through Guardian adopted mother Durpati Bai, Both R/o Village-Bmkona, Tahsil & Distt. Kabirdham (C.G.). VBRSUS The Oriental Insurance Gompany Ltd. Through- Shriman Shakha Prabhandhak Mahodaya, Kamthi Line, Rajnandgaon, Distt. Rajnandgaon (C.G.) 2, Manoj Agrawal, S/o Shivcharan Agrawal, aged about 42 years, Through- Shyam Infratech, Near Vikky Video Kawardha, Tahsil 85 Distt. Kabirdham (C.G.) 3. Firendrapuri Goshwami, S/o Kailashpuri Goshwami, aged about 36 years, R/o Village Tamma, P.S.-Pipariya, Tahsil & Distt. Kabirdham (C.G.) MEMORANDUM OF APPEAL U/S 173 QFM.V, ACT. 1988 ^''-^ HIGH COURT OF CHHATTISGARH AT BILASPUR D1VISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants Claimants Resoondents M.A.rclNo.348/2011 Durpati Bai and another Vs The Oriental Insurance Company Ltd. andothers. Rresent: Mr. Sudhir Verma, counsel for the appellants. Mr. Raj Awasthi, counsel for respondent No/1/jnsurance company. Mr. Dashrath Prajapati, counsel for respondent No.3. ORDERfOran (18th July, 2011) Per I.M. Quddusi. J; ^ 1. This appeal under Section 173 ofthe Motor Vehicles Act, 1988 has been filed against the award of Motor Accident Claims Tribunal, Kabirdham (Kawardha), dated 19th August, 2010 passed in Claim CaseNo.78/08. dismissing the daim petition ofthe claimants. 2. Brief facts of the case are that on 20.6.2008, respondent No.3 while driving motorcycle bearing registration No. CG 09 A/8374, which is owned by respondent No.2 and was insured with respondent No.1 from 27.10.07 to 26.10.08, jn a rash and negligent manner, dashed Sukhiram Sahu near Birkona market gate at Kawardha-Raipur main road, as a result of which Sukhiram Sahu sustained grievous injuries over his hands, legs, nose and head. However, during the course of treatment at Mata Laxmi Nursing Home, Anupam Nagar, Raipur, he died. The matter was reported to the police, whereupon Cr.No.126/08 was registered against respondent No.3 and after completion of investigation, charge sheet was filed against hjm in 1 theCourt. 3. At the time of accident the deceased was 50 years and was earning Rs.200/- per day. On his treatment,_Rs.50,000/- has been spent by ^®':";^a&N ^€' .,'">-^., .2. ^I^PIS ..A^ ^. the claimants, who are legal heirs of the deceased and were dependent upon him. Therefore, a claim petition was filed before the Tribunal for a total compensation of Rs.10,25,000/- against the death of Sukhiram Sahu. However, learned Tribunal, after close scrutiny of the evidence, documentary and oral, led by the parties, dismissed the claim petition ofthe claimants. 4. Heard Jearned counsel for the parties, pefused the LCR as also the impugned award. 5. Though no postmortem of the deceased was conducted, but the Tribunal has observed in para-9 of its award that younger brother of ' the deceased could have narrated the fact, but he was not produced in the witness box and he would have been a material witness. However, no heed has b6en paid towards the witnesses mentioned jn the charge sheet submitted by the police under Section 173 ofthe Cr.P.C. 6. Sections 168 and 169 of the Act and^Rule 226 of the CG Motor Vehicles Rules, provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation; Thus, a duty is cast upon the Tribunal to conduct a proper enqujry to ascertajn the truth so that legitimate claim of the claimants may not be denied. Therefore, we are of the opinion that the Tribunal was not justified in treating the claim petition as a cjvil suit and deciding the same only on the basis of pleadings orthe evidence adduced by the parti6s. 7. In the case of Raj KumarVs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(f2) Scale 265, the Hon'ble Supreme Court, in para-11, has held thus: "Para 11 The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 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 expforer andseeker 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 to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip jtself with a Medjcal Dictionary and a Handbook for evaluation of permanent physicaj impairment (for example the Manual for Evaluatjon of Permanent Physical Impairment for Orthopedjc Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medicaf evidence and assessing the physical and functional disabiljty. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gjves some in||catjon about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor givjng evidence uses technical medical terms, the Tribunal should instruct him to state in addjtion, in simple non-medical terms, the nature and the effect of the injury. If a doctor gjves evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent djsability with reference to the whole body and if so the percentage." / 8. In view of the above, we are of the opinion that the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this '•.^ :"t: appeal in part, set aside the impugned award and remit the matter back to the claims Tribunal to decide the case afresh, in the light of the observations made above. Needless to mention that the partjes shalf also be allowed to amend the pleadjngs, adduce further evidence, fite documents or get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall also conduct an enquiry intothe claim for determining the just compensation. 9. Parties shall appear before the Tribunal on 17th August, 2011. 1'0. LCR shall be sent back to the Tribunal without further detay. 11. No order as to costs. 12. Certified copy as per rules. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge 1-^kft v.y