— IN THE HOIM'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.) M .A. fCII N0. ^f^ /2008 A_PPE_LLA_NT RESPONDENTS Johitram Yadav, aged about 20 years, S/o. Pothiram Yadav, R/o. Village Ghutiya, P.S. Hirri, District Bilaspur (C.G.) f-:l. Yogendra Singh Thakur, S/o. Ramnarayan, R/o. Village Ghutiya, Post Baitalpur, District Bilaspur (C.G.) ^ '^.l-^'^Kfl^^ (D rive r of J ee p) •"' ^••"".^ ••y"("..^< ^>swt.^os! *•*' ^•••'"^ v— <L- At present R/o. Beside Tuishi Cycle Store, Sargaon, District Bilaspur (C.G.) 2. Branch Manager /Divisiona! Manager, The Orienta! Insurance Company LImited, Opposite High Court, Bilaspur (C.G.) CLAIM BEFORE THE TRIBUNAL AW_ARD_AMQUNT SAME IN THE PRESENT APPEAL Rs.17,00,000/- ^ r^" /"/' ^ K'''! MISCELLANEOUS APPEAL U/S^1Z3_QFJ:!4E_MOTOR ^" ,^- ^'"""^%^N /^^ '\ '^1^-^ ^^\ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. ^ Aopellant Resoondents M.A. rcl No.799/2008 Johitram Yadav Vs Yogendra Singh ThaRur and others Present: Mr. Goutam Khetrapal, counsel for the appeltant. Mrs. Bulbul Agrawat, counsel for respondent No.2/insuranee company. ORDER (Oralt (1st July, 2011) Per I.M. Quddusi. J; 1. This appeaj under Section 173 of the Motor Vehicles Act has been filed against the award of Motor Accident Claims Tribunal (FTC), Bilaspur, dated 29m June, 2007 passed in Claim Case No.31/06, dismissing the claim petitlon filed under Section 163A ofthe Motor Vehicles Act (in short "the Act"), inter alia, on the ground that the injured/clajmant, who was driving the vehtele-jeep, was himseif negiigent. 2. Brief facts of the case are that on the date of incident 21.4.2003 the appellant was coming back from Nawagarh by driving Jeep No. CG 10 ZD/1541. When he reached near main road, Sambaipur, as . there was high slope nalla and turning, due to failure of brake of the jeep, it got uncontrolled and turned turtle, as a result of which the persons, includjng the appellant-driver, traveling in the jeep sustained grievous injuries. Report of the accident was Jodged jn the Pottee Station : Nawagarh, whereupon offence was regjstered against the appellant and charge sheet was filed against him before the Court at Durg. Due to this accident, the appellant sustained grievous injuries over head, waist and other parts of the body. The appellant remained hospitalized from 24.4.2003 to 22.5.2003. However, even after treatment, he is not able to move withoirt r, '-a }0~ ^ ^ ^L- v^ ^c^\ ^s^?-. v .1. •^.'y' '^ .^.^ support. Rs.1,50,000/- has been spent on his treatment and in'i future also, he is requfred to jncur expenses for treatment. The appellant was a skilled driver and thereby eaming Rs.40,OCXy- per year. Since on account of the unfortunate accident, he has been permanently disabled, therefore, a total compensation of Rs.17 jakhs was claimed. 3. Heard learned counsel for the parties and perused the impugned award. 4. Sub-section (2) of Section 163A ofthe Act provides that in any claim for compensation under sub-sectton (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehjcle or vehictes concerned or of any other person. 5. In the case of Deepal Glrishbhai Soni and other Vs. Unitecf India Inswance Co. Ltd, Baroda, reported in (2004) 5 SCC 385, the Hon'ble Supreme Court, in para-66, has observed thus: "66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person glves rise to claim of compensation under the Act and ateo under the Workmen's Compensation Act, 1923, he cannot claim compensatfon under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", uprovisjons of this Act", "under any other provisions of this Act", or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time bejng in force" has been used, which goes to show that Pariiament intended to insert a non obstante clause of wide nature whteh would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law ,f--^t!w^f^^ ^-€^ ,^' ^' '^ %'^- .:^':.^ i :%^j for the time being in force. Section 163-A ofthe Act covers cases where even negligence js on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." 6. Thus, in view of above, it is ctear that Section 163-A would apply despite contrary provisions existing in the Motor Vehtetes Act or any other law for the time being in force, and that section covers cases where even negjigence is on'the part of the victim. Therefore, if there was negligence on the part of the driver. who is a victim in the instant case, the provisions of Section 163-A would be appticable. 7. With regard to consumptton of ateohol by the appeltant-driver, the same is an offence punishable only if in the blood of the driver alcohol exceeding 30 mg per liter of blood is detected in a test by a breath analyzer, as provided in Section 185 ofthe Act. However, if the alcohol is found below the above quantity in the btood, it is not punishable, and it was the duty of the Tribunal to determine the quantity of alcohol by summoning even the doctor who had examined the injured medically. 8. Sections 168 and 169 of the Act and Rule 226 of the CG Motor Vehteles Rules, provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation. Therefore, we are of the opinion that the Tribunal was not justified in treating the claim petition as a dvil suit and deciding the same onty on the basis of pleadings or the evidence adduced by the parties. 9. In the case of RaJ Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Scale 265, the Hon'bte 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 partteular the exlent of permanent disabiiity. Se^tons 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a clvil suit, but as an active explorer and seeker ^ 1 i l x^,^ i y .^/ ^. ^-^/ •^E^S^^1 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'. White dealing with personal injury cases, the Tribunal should preferably equip itsetf with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for exampte the Manual for Evaluation of Permanent Physical Impaimfient for Orthopedic Surgeons, prepared by American Academy of Orthopedte Surgeons or its Indlan equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disabiiity. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, jn the case of workmen. If a Doctor giving evjdence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarificatjon as to whether such percentage of disabiljty js the functional disability with reference to the whole body or whether it is only with reference to a Mmb. Ifthe 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 disabiUiy w'ith reference to the whote body and if so the percentage." ^ K^ 1 ^"y/ •i;..-"^ 10. In view of the facts and circum^ances of the case, the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this appeal in part and remit the matter to the ctajms Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light ofthe observations made above. Needless to mention that the parties shall also be allowed to amend the pteadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shatl be given by the Tribunal and award shafl be passed afresh. The Tribunal shail also conduct an enquiry into the claim for determining the just compensation. 11. Parties shall appear before the Tribunal on 27th July, 2011. 12. LCR shall be sent back to the Tribunal without further delay. 13. No order as to costs. 14. Certified copy as per rules. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge fe: ^S'^-^c^^-^...: .-..^