IN THE HON'BLE HIGH COURT QF CHHATTISGARH M.A.fC) N0. AT BILASPUR ^•3^ OF 2007 LPPELLANT/ ^The Oriental Insurance Company I- ^^Limited- ^J'A^^ DivKsir y'A^^ Divisional Office-II, 2nd Floor, \^"^'°v'(°.. Chawla Complex Sainagar, A-: ^ ..•:'' Devendranagar Marg, ^..^^ ^.^"r Raipur (Chhattisgarh). ^' , VERSUS 'v^" RESPQNDENTS APPELLANT t-is RESPONDENT N0.2 RES^ONDENTNO.l (O^ner & Driver) s> Sharda Prasad Yadav Aged 55 yrs., S/o Manrakhan Yadav R/o Bhujgahan, Thana-Tikrapara, Dist: Raipur (CG). Preetam Kumar Sonkar, aged 25 years, s/o Durjaiilal Sonkar, R/o Viil: Kholi, PO: Parsada, Teh. & Thana: Abhanpur, Dist: Raipur (CG). MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT, 1988. I 1 '-••ei^^l 1 ^. ^4/^ '"^^^ ^ COURT OF CHHATTISOARH AT BIZASPUR E.A. iCi N0. 532 OF 2007 The Orientai Insur-aiice Company Limited. Versus Shaixla Prasad Yaclav aiid aiiQther. SECTIG^r 1T3 OF THB MOTOR vVEHICLES ACT, Sisiffie Bench: Hoii'ble B'hii G. Ifliniiaiuddin, J. Presents Slii'i Sudhir Agi'a-ws-l; counsel for the a-ppellaiit, Sm-i K.K. Dewaiigaii, counsel for respondent No. 1. Shri Alok Dewangari, counsel for respondent l No.2. ORAL ORDER |Passed on 29th day ofJuly, 2011| This appeal has beea filed under Section 173 of tiie Motor Vehicles Act (fbr short tiie Act?) agalust the impugiied award dated 31-01-2007 passed by fhe Seventh Additioual Motor Accldeut Clamis Trlbunai, Ralpur (for shor-t the <Claii-ns Ti-ibunalaj m Clalm Case No.27/2006 by the appeliaiit - Insuraiice Compaiiy, fastenmg the liabllity for payruent of compensation to the clalmaiit, joiiitly aiid severally aloug wltli the owuer and dnver, 2. Brief facts of the case as projected by flie clamiaiit ai-e tiiat on 04-04-2006 at about 12-00 (m tlie midniglit), the claimaiit was U-avelmg by Qualis beai'mg registi-atlon No. C.G. 12/^104 from his vulage MuiTa to Jagdalpur. The sald vehicle met with aii accident due to rash and negligent drivmg'., of the driver of the offendlng veliicle (Qualls) as a rebiilt of wlilch tlie clahuaiit sustained multiple mjui-ies m the saM_accKlQi1^ A cr-mie was > reglstered in tiie police statiou Kur'ud agamst lespondeut No,2 (owiier-cum-driver). 3. The ciaunaiit had tlled a petition under- Section 166 of tlie Act, before tlie Clauns Tribuual claimiug a total compensatlon of Rs.4,69,000/- for the mjm'les sustalned by lilm m the acciclent. 4. Learned TiTounal on a close scrutiiiy of evidence led, mateilal placed aiid submisslons ruade by tlie partles, has awai'ded a sum of Rs. l,41,65o/- aloug with hiterest @ 7% per- aiiiiuin fr-oin tlie date of application aiid has held that the Insuraiice Compaiiy is liable to pay the airiouut of compeasation to the clalmaiit. 5. Heard leai'ned couusel for tlie parties aiid perused the record as well as fhe uiipugiied award. 6. Sm-i Sudliu- Agi'awal, leained couiisel for tlie appellaiit subniits Uiat tiie appellarit/Insui'aiice Compariy has specl£lcally pleaded ui the written statement that at the relevaiit pomt of tlme, tiie owner-cum-driver was drivliig the vehicle witliout a valld aiid elTective drivmg licence and ui additioa to Uiis, Uie veliicie (QuaJls) was beiug plied as a Taxi iii couti'aveutlon of the couditions of the policy of msuraiice aiid as such, tue InsLU'-ai-ice Compaiiy is not liable aiid should have been exoner-ated fiom its liabillty. He has fuither coutended that Uie owner-cum-diTver appeai'ed before tl-ie Clakus TiTomial aiid after filMig wTitten statemeut had remained ex--paile aiid hau not supplied the pai-tlculai's of tlie Ucence which he was duty bound to supply the saiue iu view of SecUon 134 of tlie^Act aiid as such it was uot possible for tlie \ appellatit/ulStUraiice Compaiiy to ver-ify tlTie genuiiieness of the sald drivnig Ucence. He also contended tliat desplte there beiug a speciflc pleadliig regaixliiig flie veliicle beuig plied as a Taxi in conti'avention of the conditlous of III;: '^. 9^ w ; t-1 ^J lusuraiice • pollcyy no issue was fraiued by tiie Claiius Trlbmial iii tl-iis regaixl aiid witiiout fmTiisliing pai-ticulai-s of the driving llceuce to the lusui'aiice Compaiiy by tlie owuer-cuni-driyer, the Claiins Tribuual has glveu lliidiiig that the appellaiit/Insuraiice Compaiiy has been uiisuccessful in proviiig that the owner-cuiii-driver was not possessing a valld aiid efiective driviiig licence. Leai-ned counsel next contends that despite taklng a.speciflc plea m the wr-itteu statement that. tlie llablllty If aiiy, of tlie appeUaiit/Insuf-aiice Compaiiy is not unluiiited but Imilted. No issue has been u'aaied m tiiis regar-d. 7. In tlie state of afTairs; leai'-aed com-isel for fl-ie respondents agree Uiat ti-iis case needs to be remitted back to the Claiiiis Triburial for- reconsideratlon" atter—glvmg opportunitj'7 to the paTtles to adduce evideuce. 8. It is cieai- tiiat. Clalms Tribunal has not conducted proper euqUM-y as per provisions of Sections 168 aiid 169 of tlie Motor Vehicles Act aud Rule 226 of tlie C.G-. Ivlotor Vehicle Rules, 1994. 9. In tliis connection, it is necessaiy to meution tlie obsei-vation of HonTble the Supreme Cour-t in tlie matter of KtMnwr ¥s. Aj9a^ Kum.wr ond c^nother, reported ui 2G1G . SC 996 .- 2010(12) Scale 26S, tlie Hon"ole Supr-eme Com-t, In pai'-a-ll, has held tiius: "11. The Tribunal should not be a silent spectator when medical evidence 1s tendered in regai'-d to the mjm'ies aiid their elTect, iii paillculai' tiie extent 'l of permaneiit disablllty. Sectious 168 aiid 169 of tiie Act make it evident that , tiie Tribunal does aot functlon as a ueutral umpire as ui a civll suit, but as aii active explorer- aiid seeker of^Lrytii. ^> II lfi;l; who is requiTed to tiold an enquiry iiito the clahu? for determining the just compensation'. The Tribunal should therefore take aii actlve role to ascertaiii tlie true aiid coirect position so that it caii assess the 'just compensation'. Whlle dealuig witli personal mjm'-y cases, tl-ie Tribuiial should preferably equlp itsetf witli a Ivledical Dictlonaiy and a Haiidbook for evaluatlon of permaiient physlcal uiipair'ment (for exaiuple the MaiTaal for Evaluation of Permaiieut Physical Impairment for Orthopedlc Sm'geons, prepai'ed by Americaii Academy of Ortliopedic Surgeons or- its Indiaii equivalent or other aufliorized texts) for understaiiding Uie niedical evidence aiid assessing. the physical aiid functional disability. Tuc Tribmial may also keep iii view ti'ie first schedule to tiie Workmen's Compensation Act, 1923 which gives some indicatlon about tiie extent of permaiient disabllity m difierent types of uijuries, hi the case of workmen. If a Doctor giviiig evidence uses techuical medical terms, Uie Tribunal should instruct hiui to state hi additlou, ia siiiiple non-medical terms, tiie nature aiid tlie efiect of tl-ie mjuiy. If a doctor .gives evidence about the percentage of permaiient disability, the Tribmial has to seek clai-ification as to whether such percentage of disabili^ is tlie ^ fuuctional disabllity wlth reference to the whole body or whether it is orily with r-eference to a Umb. If the percentage of per-maiient disabilily is stafced witli reference to a luuu, tiie Tribmial wUl have to seek tlie doctor's opiruon as to whetlier it is possible to deduce the con-espondmg functional permauent disability with reference tu tl'ie whole body aiid tf so tiie percentage." 10. In tiie resLilt, the appeal is atlowed iri part aiid tlie awai'd impugued 1s set aside aiid the matter is remltted back to tlie Clalrus Tribuiial for couductiug proper enqulry, for reconsideration aiid for passmg aii awai'-d afi-esh. 11. Needless to mention that tl-ie pai-ties shall be pr-ovided oppor-tuiiity to amend the pleadiiigs, adduce further evidence, flle docuiuents or get tiie docuruents verified etc., on tlie basis of the pleadiiigs ali-eady on record^ Thereafter, fui'tlier enquuy may be couducted by fhe Clalms Tribunal as provided under Sections 168 & 169 of ti-ie Act, 1988 ai-id Rule 226 of the C.G. Motoi- Veliicle Rules, 1994. Issues regaixling br-each of conditions of insuraiice policy aiid regai-dmg extent of Uablllty of the lusuraiice Couipaiiy be fraiTied aiid then awai'd shall be passed afresh, 12. The ainount deposited by tiie appellaiit/Insuraiice Corupaiiy ^hall r-erualu iii deposlt aiid if disbLU'bed to flie claluiaat, ^lie saiue shall be subject to the awaixl to be passed afr-esh. In case, the appellaiit/Insm'aiice Compai-iy is exonerate^l, tlien it shall have rigl'it to r-ecover- tlie "aiuount disbui:sed to the clalmaut froua fhe owner of the veliicle. zr ^ 13. The paitles shall appeai' befor-e ti'ie Claims Tribm-ial on 05th September, 2011. 14. The r-ecords of the Clau-ns Tribunal shall be sent back wiUiout aiiy fm-tlier delay. 15. No or-der as to costs. Sd/- G.Minhajuddm Judge \