x^,;. IN THE HON»BLEHIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Aooeal iC} No. /2010 APPELLANT ^~~~ $ajaj Allianz General Insurance Company Limited, Branch no. O.C.-2, Chhattisgarh Complex, Opposite Gita Lodge, Bus Stand Road, Bilaspur Tahsil 85 District Bilaspur (C.G.) Through Branch Manager, Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur (C.G.) (INSURER OF^ VBHICLE TRUCK N0. C.G. 04/J-6148t RESPONDENTS ^ i-2>. ^v"%y. ^ ^^ c, .* ey>'' ^y 'T A VERSUS Devanta Singh Thakur s/o Late Dukod Singh Thakur aged about 51 years, Smt. Ganesha Bai w/o Devanta Singh Thakur aged about 47 years, Both R/o Village Ramtala, Post Sendri, Thana Koni, Tahsil 85 District Bilaspur (C.G.) (CLAIMANTS)^^ ^'" Sitaram Ojha s/o Gupteshwar Ojha, aged about 32 years R/o Bhanpuri, Near Byas talab, Thana Khamtarai, District Raipur (C.G.) Presently at B.M.R. Transport, Raipur Road, Parsada, Thana Chakarbhata^JDahsil 85 District Bilaspur (C.G.) (DRWER OF VEHICLE TRUCK N0; C.G. 04/J-6148t Harpal Singh S/o Ajit Singh, Occupation- Transporting, R/o B.M.R. Transport, Raipur Road, Parsada, Thana Chakarbhata^Cahsil 85 District Bilaspur (C.G.) (OWNER OF VEHICLE TRUCK N0. C.G. 04/J-61481 MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 ^' Mlsc. Appeai (Cl No. 848 of 2010 APPELLANT RESPONDENTS Bajaj Aliianz GeneraE Jnsurance Company Limited. , Versus Devanta Singh Thakur and others. APPEAL UNDER SECTiON 173 OF THE MOTOR VEHICLES ACT. 1988 AS AiVJENDED BY ACT OF 1994 DB: Hon'bSe Shri Justice I.M. Quddusi & Hon'bJe Shri Justlce N. K. Agarwa!. Present : Shri Sachin Singh Rajput, counsei for the appellant. Shri Samir Singh, counsel for respondents No. 1 &2. Shri Akhtar Hussain, counse! for respondent No.4. ORAL^RDER (Passed on 8th day of November, 2010) Per E.M. Qudclusi. J. 1. This is insurer's appeai filed against the avvard dated 16-03-2010, passed by the First Additionai Motor Accident Claims Tribunai, Biiaspur (for short !the Tribunal') in claim case No. 14/2009. 2. Brief facts of the case are that, on 13-02-2009, Yogendra (slnce deceased) whlle going to Sarkanda along with his elder brother, was dashed by the Truck bearing registration No. C.G. 04-J/6148 by rash and negiigent dnving of the driver of the offending vehicfe (Truck), as a result of whlch he succumbed to the injuries sustained in the said accident. h»<lllll— 3. Learned counse! appearing for the appiliant has raised contention that the evidence of the appeilant was dosed at the juncture when the R.T.O., Raipur was summoned and the notice was served upon him but he did not turn up. It was beyond the controi ofthe appeElant to produce the R.T.O. and It was only the TrEbunaE v^hlch couid compei the R.T.O. to appear along wlth the record. 4. The principie of attendance of wltness is also at first if the vvltness does not turn up despite service of notice and no application or request is made on his behalf for seeking time, the Court shouid issue bajiabie warrant of arrest compeiilng hi? attendance and even after that he does not turn up, the Court shouid issue non- warrant of arrest to procure the attendance of witness. Therefore, if the R.T.O., Raipur did not turn up despite service of notice, It was not proper for the Tribunai to close the evidence at that stage, more-so, the appe!!ant protested and requested the Tribunat to take action against the R.T.O., Raipur to procure his attendance which is clear from the order dated 15-02- 2010 of the MACT's record. Therefore, we are of the opinion that the closure of evidence of the appeiiant/respondent No.3 before the Tribuna! in the claim petjtion wsthout procuring the attendance of the R.T.O. was not proper and on this ground, the appeai ...^^ ^ ^.^^ -^ is Ijable to be ailov/ed and the impugned award is JEabie to be set asjde. 5. In the result, the appeal is allowed in part and the impugnsd order passed by the Tribunal is set aside and the rnatter is remltted back to the Tribunal for decEsion afresh after -glving him an opportunity of hearing, to adduce further evidence, to amend the pleadings or to file addltionaE documents, if any, and veriflcation of the documents. 6. The cross-objection fiied against the quantum is also dismissed in view of the fact that the Tribunal shat! declde the claim afresh and there is no award at all at present. 7. The amount of cornpensation or any part thereof if aiready deposited, the same shail be refunded and not be disbursed, if already not disbursed, tjll the dlsposai of the ciaim petition. Slnce the parties are present before the Court, they are directed to appear before the Tribunal concerned on 22-11 -2010. Sd/- I.M.Quddusi Judge Sd/- N.K. Agarwal Judge Kvr