IN THE HON'BLE HIGH COURT OF CHHATTISGARH A'^ fflIASPUR MISC. APPEAL (C]NO.^'^/2010 MISC. APPEAL UNDBR SECTION 173 OF THX. MOTOR VEHIO.^ACT, 1988 :^' APPELLANT Insurer ^o...^y ^y^ ,r ^-•^yy) ^...^ ^\^' ^' ^' .-•K ~<^* '^ RESPONDENTS CLAIMANTS ^ The New India Assurance Company Lunited, through - DivisionaJ Manager the New India Assurance Company Limite.d, Bilaspur, 2nd Fioor, Rama T'rade Centi-e, Opposite- Rajeev Plaza, Bus Stand, Bilaspur [C.G.]. VERSUS l^ Smt, Pramila Deshmukh wd/o Late Bhikham, aged about 23 years, l^f Smt. Neera Bai wd/o Late Guhariram, aged about 51 years, Kushal S/o Late Bhikham, aged about 4 years. Himachal S/o Late Bhikham, aged ' about2years. 5^ Bhuneshwar S/o L^.te Bhikham, aged about 5 months, ResF>ondent no. 3 to 5 minor represented through mother Smt. Pramila(respondent no. 1) All R/Q..; village .Pisegaon, Police Station - Palgaori, Tahsil ahd District Durg (C.G.) -ff aa ;81 DRIVER 6. Bhunuram Sori, S/o Shri Devdas Sori, aged about 30 years, R/o Hathrakh, Post - Didhwadi, P.S. ^^Mohla, District Rajnandgaon (C.G.). ,^'^n ^la-J'/^-^^^'' J^^ •' OWNER ^?/7// 7. (^Ru^g^Gupta, ^)/o Shri Mangal F'rasad Gupta, aged about 38 years, R/o Khadgaon, P.S. Mohla, District Rajnandgaon (C.G.) /&.I CLAIM IN APPEAI. VALUE3> AT RS. 8.09.521/- 1^~I: ^ ^"f :-2® HIGH COURT W CHHA'mSCARH. BIL&8PUR DB: Hpn'ble I. M. QUDDIISI & Hon'ble G. MINHAJUDDIN, JJ APPELLANT: RB8POMDENT8: M.AJCL No.438/2010 The New India Assuraace Coinpany Ltd., Vs. Sint Pranula Deshmukh &ptiiers MISC. APPBAL UNDER 8BCTION 173 OF THB MOTOR VBHICLE8 ACT. 1988 ''-•'- '1: :. ; ,•:.: /•; .. ' ' '.: 1; : . Appearaace: Mr. S^urabh Shanna, coijaasel for ftie appellanfc Mr. A. P,Shanna,counselforrespoudentslto5. Per LM. QUDDUSI. J, ORALORDBR (20.07.2011) 1. This appeal has been filed by fhe Insuraace Coinpany against fhe unpugned award dated 30.11.2009 passed bythe XI Additional Motor Accident CIaims Tribunal (FTC), DUi^, Chhatdsgarh, in Claim CaseNo. 19/20108 sofaras it relates to ./ • . . • ."'• :' •• '• . . uon-ad.judicati.on ofcontributory ne^^euce aad quantuua. ' \ . '. . .•'..•.•'. ...-'. • . . 2. Brieffactspffhecaseasperfheversionofclaimaiilsarethat on 02.09,2007 deceased Bfaikhaia Deslimukh was goirig t6 Peesegaon by driving Uis Hero Honda Motorbike bearing Regn. No.C.(S,07-EA/2947. On the way when he reached near Chaudldiuri vfflage Bus-Stand, a Truck bearing Regn.No. C.G.04-G/8852 wltich was being driwen by respoDdeiit Do.6 Hhuau Raia, in a rasti and negligeitt manner, (lasfaied the inotorcyele of Bbikham Desbjnukh, as a siilt ofwluch liefen t- -'l .^' ^- <. down, sustained grievous injuries and died during course of treatment. At fhe tmie ofaccident, the deceased was a yoiing rn.au of 26 years old. He was piirchasiag birds froin a poultiy farm and seUiag theiii in iiiarkets, Besides fhis, he was also working &s watchiuan. in CIihatrapati Shlvaji Boys Hostel aad as such hfe nionthly iueoine was shawn as Rs.8,000/-. The claiaiaats being dependents/legal representatives of the deceased have filed claim petition u/s 166 of fhe Motor Vehicles Act for the award of total coinpensation of Rs,28,98^)00/ - on various heads. The leamed Clauns Tribunal having regard to fhe facts situation and inaterial ori recoid, held tbat the offending Truck was iavolved ia fhe accident in wbich deceased dicd. Having thus held, it Iias awarded a total coinpeusati.on of Rs.8,09,521/- wifh interest®8% per annitm to the claimaats which fhey are entitled to receive fi-oia fhe non-appUcaate joiatly and severaUy. We have heard leamed counsel for fhe parties aad have atso gone fhrough fhe records of fhe Tribunal as weU as the contents of fhe iinpugned award. We have fouad that ia the written statement fited by the appeUaat Insurance Coiapany, a plea taken was that ttoee persons were sitting ori fhe niotorcycle atid siacc two vehicles coUided with each other, the . principle ofcontributoiy negligence would be applicable, but no issue has been fi-Maed ia fhis regard. It appears fhat fhe Tribiuial has not conducted any enquiry as provided in Rule 226 of C.G. Motor Vehicles Rules, 1996 and sections 168 & 169 offhe Motor Vehicles Actto ascertam. fhe truth. Therefore, B B BE- V-v. ia our oplnion, the xaatter requires reconsideratiou at the end of fhe Tribunal. 5. Hence, we aUow the appeal in part aud remit the inatter back to fhe Tribunal for decision afiresh. The Tribunal shall fiame anddetermine fhe issue regarding contributoiy negligence aad fhen only itshaU take a fresB. decision. ItwiU also be open for the Insuraace Coinpany to raise the question of iacouie of tiie deceased before the Tribunal aad the quaatuin to be fixed. 6. Needless to xaeation that the parties sball be aUowed to aniend the pleadings, adduce furfh.er evidence, file fhe documents or get tiie docujnents verified ete aud flieieafter the dccision shall be taken afiresh by fhe Clairus Tribtmal at fhe earliest. The parties shall appear before the Tribuaal on 24th ofAUgu.st, 2011. The rceords of the Tnbunal ShaBl be sent baek forthwifh. 7. The aniount wbich has ah-eady been deposited by fhe appeUant ShaU reinam iu fixed deposit in aay Natioiialized Baak for a period of one year extendable fsxssn tune to tim.e till fhe fresh decision is faken by the Tribunal. 8. In the result the appeal is aUowed in parfc No order as to ' -cos^a^ Rao Sd/- I.M.Quddusi Judge ^ G. Minhajuddin Judge