;^r- ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH M.A<NO. -rLLO /2006 APPELLANT ^ ;~J?"" The Oriential Insurance Co. Ltd. through Branch Office, Bhilai Block No.2 Street No. 31 Sector 1, Bhilai Pox Box No. 13 Tahsil and District Durg [C.G.] VERSUS RESPONDENTS , 1^,. Smt. Pushpa wife of Late Bhartari ^^•;.J- Sahu Aged 32 year's ^ 2.^, Rajesh S/o Late Bhartari Sahu Aged about 14 year's ^_3. Ku. Kavita D/o Late Bhartari Sahu Aged about 11 year's ^-4. Ku. Navita D/o Late Bhartari Sahu Aged about 10 year's 1^5^. Ramesh S/o Late Bhartari Sahu Aged about 5 year's Respondents No. 2 to 5 are minor's through Guardian mother Snit. Pushpa Sahu All R/o village Tedesara P.S. Lalbagh Tahsil and District Rajnandgaon [C.G.] @ 6. Hariram S/o Dhannu Nishad Aged about 38 year's R/o Camp No. 1 Bhilai Near 3- Darshan Mandir Bhilai P.S. Cont. Tahsil and District Durg [C.G.] T^/G.S. Ahluwalia Aged ,ab'ut 41 years R/o R.S.S. Power House Bhiali Market District Durg [C.G.] MISC APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT .^ 7 HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M^Qyddusi and Hon'ble Shri Justice Prashant Kumar Mishra ApBejlant IVIiscellaneous Appeal (C.) No.540 of 2006 The Oriental Insurance Co. Ltd. versus Respondents Smt. Pushpa and others Present: Shri A.K.Athaley, counsel for the appellant. Shri Basant Dewangan, counsel for respondent No.6. None for other respondents. MiscellaneoysADDeal underSection 173 ofthe Motor Vehicles Act ORAL ORDER (Passedon 20th April, 2011) Per !.M. Quddusi, J.: Heard. 2. This appeal has been preferred by the Oriental Insurance Company Limited against the award dated 21-4-2006 passed by the Motor Accidents Claims Tribunal, Rajnandgaon in Claim Case No. 134/1995 raising the question of contributory negligence. 3. Case of the claimants, as stated in the claim petition, is that on the date of accident, i.e., 9-10-1995, at about 9 P.M., deceased Bharthari Sahu was coming back from Bhilai to Village Tedesara on a Scooter bearing registration No.MP 24 D 8386. At that time, a Truck bearing registration No.MPS 5225 was wrongly parked on the public road at the petrol pump situated near Village Tedesara. The deceased's scooter dashed with the said truck. As a result of the ^ accident, the deceased sustained grievous injuries on his person and died on the spot. The incident was reported to the Police Station Lalbagh, Rajnandgaon. The daimants, i.e., wife and children ofthe deceased preferred an application under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act') claiming compensation of Rs.17,00,000/-. 4 . The Claims Tribunal awarded a sum of Rs.7,50,000/- in favour of the claimants holding liability to satisfy the award on the non- claimants jointly and severally. 5. Earlier the claim petition was dismissed against which an appeal, registered as Miscellaneous Appeal No. 1093/97, was filed before this Court. The same was allowed in part, the impugned award was set aside and the matter was remitted back to the Claims Tribunal for decision afresh. However, this Court, while remitting the matter back, had given the finding as under: "2. ................. The accident took place during the night and it has not come in the evidence whether at the relevant point of time there was moonlight which could have guided the deceased to avoid the accident. In the absence of such evidence and having regard to the evidence that the offending vehicle was parked on the road without light on, we are of the considered opinion that the appellants have satisfactorily proved the actionable negligence on the part of the driver of the truck and therefore he was responsible for causing accident and is liable to pay the compensation to the dependents of the deceased." J ^MS^:\ I "^f-: fi.^ 6. In view of the above finding, there was no scope for the Claims Tribunal to decide the issue of contributory negligence. That finding of this Court was not challenged further by the appellant/insurance company. 7. In the impugned award, the' Claims Tribunal has not decided the issue regarding the contributory negligence after remand and had only observed that since this Court has already^ decided the actionable negligence on the part of the truck driver, the question did not remain open to decide by the Claims Tribunal. We find no illegality in the observation made by the Claims Tribunal in view of the fact that the finding was already given in the appeal and on that basisthe matter was remanded. 8. In view of the above, the instant appeal fails and is hereby dismissed. There shall be no order as to costs. Sd/- I.M. Quddusi Judge Sd//- Prashant Kumar Mishra Judge Gopal w