^ OF JUDICATURE AT BILASPURjaG.l c. rc t^ s 1 Miscellanioiis Appeal (Claim Wo-^o^ /20 ic Orienta! Insurance Company ^: ^^, .^%" .^.^--L:;^-'1.AA^' ^^-^ Lim&ted^ Parmanand Bhawan Rajendra Park Chauk ,Durg Dist- Durg(C.G.) Through Divisiona! Manager, DMsioiiai Office Durg, Durg(C.G.) ^. ^- SIiobba Siiigh , S/0 Sawindar Singh, aboiit 28 years^ R/o Hoiise No. 9 Kailash Nagar, Near Aketa Chook ^Kiiriid Road Bhilai Tah. & Distt Durg (C.G.) Sita Ram Yadav S/o Late Shri Itwari aboist 29 years^ R/o SasijayNagar SiipeIa^BhSai Tah- & Distt Durg(C.G.) ^.-3- R/o 48/5 Neharu Nagar East Btilai & Distt Durg(C.G.) L.. . APPEAL (CLAIM) SECTION OF ACT, 1988 HIGH COURT OF CHHATTISGARH : BILASPUR M.A. (Q No. 753 of 2009 Appellant The Oriental Insurance Company Limited Versus Respondents Shobha Singh & others .7.° ^" MISC. APPEAL UNDER SECTION 173 OFTHE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Sbri I. M. Quddusi 8& Hon'ble Shri G. Minhajuddin, JJ Shri Kamal Narayan Chatur^edi, Advocate for the appellant. Shri Amiyakant Tiwari, Advocate for the respondent No. 1. Shri S. K. Guha, Advocate for the respondents No. 2 & 3. ORDER (Oral) ( Passed on this 23rd day of September, 2011 ) Per I. M. Quddusi J. 1. The instant appeal, filed by the appellant/Insurance Company ariscs from the award dated 28.3.2009, passed by the Seventh Motor Accident Claims Tribunal (FTC), Durg in Claim Case No. 29/2008, awarding a total sum ofRs. 3,26,736/-. 2 . The claimant has also filed cross objection for enhancement of award. 3. The facts, in brief, are that on 29.7.2006 the claimant was going to Durg from Bhilai by his motorcycle. On the way, when he was talking with someone on the road side, due to rash and negligent driving of the non-applicant No.l a wheel of the Truck, bearing registration No. C.G. 07-C/1768, ran over the left leg of the claimant, resulting in grave fracture. 4. The claimant/injured filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award ofa total compensation ofRs. 10,36,OOO/-. -•;-:'«®il^'.- ''^. 'tt;?f''' 8. Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded a total sum of Rs. 3,26,736/- along with interest @ 6% per annum, holding the non-applicants, including the present appellant/Insurance Company, as liable to pay the amount of compensation. We have heard learned counsel appearing for the parties and perused the lower Court's record. It is evident that the claimant had already suffered polio in his right leg and further due to permanent disability in his left leg, both the legs of the claimant became non-functional but the Tribunal has assessed the disability only to the extent of 15%, whereas the percentage of functional disability was to be ascertained on the basis of the medical evidence, which has not been ascertained. The Medical Officer, who came in the witness box to prove the permanent disability should have been asked the question about the functional disability of the injured but it has not been done. It appears that the Tribunal has not conducted a proper enquiry as provided under Sections 168 and 169 of the Motor Vehicles Act, 1988 and Rule 226 ofthe M.P./C.G. Motor Vehicles Rules, 1994. Hon'ble Supreme Court in Raj Kumar Vs. Ajay Kuinar 8& another {2010 (12) 8CALE} in para 1 1 has held that "The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 ofthe Act make it evident that the Tribunal does notfunction as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. Therefore, in view of what has been observed by this Court hereinabove, we are of the opinion that the matter requires reconsideration at the end ,..-^^^. ^:^^^. 1. ^' '^Ha^ of the Tribunal after conducting an enquiry and summoning the Medical Officer and marshaling the medical evidence. 10. For the reasons stated hereinabove, we allow this appeal in part, set-aside the impugned award dated 28.3.2009 and remit back the matter to the Tribunal for decision afresh in view of the obser^ations made hereinabove. No order as to costs. 11. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified etc. 12. The Tribunal shall make an endeavor to decide the claim petition, as early as possible, preferably within a period of three months from the date of appearance of the parties before it. 13. The parties shall appear before the Claims Tribunal on 16th November, 2011. 14. The lower Courts record shall be sent back forthwith. <&v Sd/- Dr. I.M. Quddusi Judge Sd/- G. Minha]uddin Judge Thakur