IN THE HON'BLE HIGH CO'URT OF CHHATTISGARHAT BILASPURfC.G.) MISCELLANEOUS APPEAL CC) NO.^^OF 2010 APPELLANT i ^^ ^' -A;<£ \>v .>%^ ^•••'yw ^y^ ^' -..''" r y ^XON-APPLICANTS: 1. 2/- 3. Prameet Kumar, S/o Late Jagdish Ram Sahu, aged about 20 years, R/o Village and Post Barna, Tahsil and District Dhamtari (C.G.) VERSUS Sher Mohammad, S/o Bashir Mohammad, aged about 30 years, R/o In front of Government Hospital, Kurud, Tahsil Kurud, DistrictDhamtari (C.G.) Mahendra Singh Bhatiya, S/o Harvansh Singh Bhatiya, aged about not known, R/o Dayalband, Bilaspur, Tahsil and District Bilaspur (C.G.) The Oriental Insurance Company Limited, Near Aadarsh Bal Vidya Mandir, Dhamtari, District Dhamtari (C.G.) w' Claimed before Tribunal : Rs. 4,25,000/- Amount awarded by the learned Tribunal : Claim dismissed. ^ Claimed in this Memo of Appeal : Rs. 4,25,000/- @ MISCELLANESOUS APPEAL UNDER SECTIONI73 OF THE MOTOR VEHICLES ACT. 1988 HZGH COXJHT GF CHHAmBGAHH AT BIIASPUR M.A. iGI N0. 373 OF 2010 APPELLANT RESPOlfDBNTS Prameet KLimar Versus • : • • • . Sher Mohamiiiad and others. APPBAL USTDER SBCtION 173 OF THB ^OTOH V^CLES ACT, 1988 Division Bench:Hon'bie Shri I.5£.Guddusi & Hoa?b£eShri G. Miahatuddia, JJ. Preseats Sl-ui P.P. Saliu, comisel for the appellaiit. Shri R^eadra Tripathi, counsell fbr respoudent No. 1. Shri Abhishek Sinha, counsel for respondent No.2. Shri Sudhir Agrawal, counsel for respondent No.3. ORALORDER (Passed on 10th Day ofAugust, 201 1) Per i.M.Ouddusi. J. This appeal has been filed against tlie mipugaed awai-d dated 04-03-2010 passed by the Cl-def Motor Accldent Claims Tribmial, Dhaintaii (for short the Tnbunal) m Claim Case No. 39/2010, dismissmg tlie claim petltlon of tlie appellai-it/claimanit. 2. Brief facts of ti-ie case ai'e ti-iat on 25-0 1-2008, tl-ie appeUaiit/cIauiianLt was going from Village Bai'na to Aroud along with une Jhamuram Sahiu to visit his slster?» hoiue by Moped as pillion rider. Near Megha Pulia, Kabii-'dhadi, he was dashed by tlie ofienduig vehicle Jeep bearing registratiou No.MP 26-C/4148 due to rash aiid negligent di'ivuig of the di'iver of the offending vehk^le peep) as a resutt of wtiich he sustaliied fi.'actm'e iii liis riglit aiikle. He was taken to CQmmunity Healtli Centi'e, KtU'ud for- ti'eatnient ai-id thereafter, his leg has been operated at Dhaaitai'i. However, he got permaiient disability. 3. The claunaiit had filed a petition uiider Section 166 offlie Motor Velilcles Act (for short <tlie Act) before the Tribunal claunmg total amomit of compensation of Rs.4,25,000/- on vai'ious heads. 4. We have perused tlie record of flie Tribunal as well as the mipugiied awai'd aiid heai'd leamed couiisel for fhe parties. 5. Leai'ned Claiiiis TiTomial has dismissed flie clalm of tiie appeUaiit/clairuaiit on tlie grouiid that the appellant ui liis statement has stated tiiat the offending vehicle (Jeep) was stationaiy. Wifl'i regai'd to statement of Jliaiiim'ani (AW-3) who was driviiig the Moped on which fhe clalmatit was sitthig as pillion rider, aii uiference has been drawn tliat he drivmg tlie moped, collided wiUi ti~ie Jeep wliich was stationaiy. But after perusing the statemciits of ti-ie witoesses, we find tiiat the fact is dtfferent 6. In ti-ie FIR it was mentioned tiiat tiie di-iver of the Jeep all ofa suddeu taken a tui'n by drivuig the vehicle raslily aiid negugeutly. The appellaiit/clamiaiit iii his exaiiiuiation m-chief (by aii affidavit) has narrated as under: ^—-.«—«-. ^jej ^ d^I ^Ct-^^^di^ ^{^ ^ <{J^{^^ ^Uc} A W^ ^fcll 4,d A Ml^ ^ ^t Kb ^^1 \1-}^ ^}-i}clCt45 0^|icr5-1 -1 c{!^-l \jfti| -i^^-^.tH. 26/^1. 4184 cbsj ^^lRilO a^^ <^4 c-iiM1<4{^ ^<5cr? Tid ^ vi^c<i^ ^lc^^ ^ R^ii ^ij Rl^icl? cbl^? g^{ dl^! \5cK1 c}i^-l 4'iM^ ^ ^ Pl^ M^—-- J" 7. In tiie cross-exaiBliiation, tlie appellaiit has stated as unider: •^ ^---•--""--^g c^^<t ^i^i § ^y}y,d ci? Mi^ ^s^ ^ ^w 7iftrr ^ ^ sft „-„„-— " 8. Jhamuram (AW-3) has stated m l~us exaiiimation in-chief (tlii'ougli affidavit) as under: ^^ l^ ^-I 2b.1.08 01 ^ ^M^ ^^ ^ 3lic|Ct0 ^^ia ^{^ W^ W ^ ROJ 0^ ^g-t ^l-ic|?M{4 ^{^ ^ Rd;l ill^ ^^<<, ^l'li WWW ^vi[^W^3{^^ WSs'S ^ ^,-^ ,y1l ^ ^ ff^l'ti^^ 11: 4& ?<y1 ^c; W^W ^ ^ ^WifA c^ 41'ti R^lfl ^dcll^ 41 i)|^ <a>$| yyiM <to*1 wTi, 26 '<?!. 4184 <M ai'1|c)CtC{5 <j3«1 1 T||<^ ct?<< ^W ^W WW^^ ^\^ -i\ v\ww\€\ ^ ^vi\ ^< Sye'11 ys-fl ^ f^^i Ki^ ^ d^I ^IM^ ^ ^tTl Rl^ M^ 3?I^ <}^ ^I^ ^li'? 9. in his cross-examinatioii Jhamuram has stated as under: !K————yg ^-11 'M^! ^ & Kh'rt ^14 ^ ^ri-ll ^ ^ w ^ ^i ^ig 0^i<ida § Rh?) ^^ Ti{d<t) gi^i ^M c^ a<^i ^cj di4^c)!^*t ^?cr> ^idia ^^ c^i ^1^1 siawi ^ ci$ <ida ir 10. In view oftlie above, a bare readlug ofthe whole statement of fhe appellaiit/claunant would show ti-iat eai'lier the jeep was stationaiy but all of a sudden the driver of tl-ie Jeep stai'-ted tlie jeep aiid took (U' tui'ii by driving the vehlcle raslily aiid negugently. Tlie whole statement of Jhamuraiii (AW-3) also shows tiie saiiie fact. However/ with regai~-d to lus denial, tlie learued Claims Triljuiial has iiiterpreted flie saiiie wrongly. He has told about rash and negligent driviiig of tiie driver was wrong. Tlierefore, two negatives wlll make one positive and flierefor-e, it will be read as l~iis statement regai'dmg rash aiid negligent di'ivmg of fce cli'iver of thejeep was conect \ ^:.^ & ^' €.• 11. Besides tiie above, tlie Claiins Tribunal has also not Iramed uiiportant issue regai'dmg eomposite negligence by flie .di'ivers ofJeep aiid Moped. 12. HonTjle the Supreme CoLirt in the matter of T.O, Anthony vs. Karvcsrnesn and Oth^r^; reported iii (SOGSi 3 SCC 748 has held m pai'a 5 of its judginent the difierence between contiToutoiy negligence and composite negligence wliich is as follows: (The Tribmial assunied fliat tiie extent of negligence of the appeUaiit aiid the fli'st respondent is 50:50 because it was a case of composite\negligence. The Tribunal, we find, fell iuto a couimon error coiiiiultted by several ti-ibiLmals, m proceedmg on the assumption fliat composite negligence aiid coutributory negligence 'are the sauie. In an accident involving two or more vehicles, wher-e a tiiii-d pm-ty (otlier tliaii tlie dnvers aiid/or owiiers of the vehlcles involved) clauns dai-Aages for loss or injm'ies, it is said tl-iat compensation is payable ui respect of fhe composite uegligence of the drivers of tliose velilcles. But in respect of such an accideut, If tlie claim is by one of the drivers hims^tf for persbnal mjuries, or by ti'ie legal heirs of one of the dr-ivers for loss on accomit of 1-ils deatii, or by the owner of one of the vehicles in respect of damages to his vehlcle, then the issue tiiat ai'ises is not about tiie composite negugence of all tiie di'ivers, but about the contiToutory negllgence oftlie di'iver concerned." 13. In the Ught of the obsei-vations made above, we allow this appeal in part, set aside tiie impugaed awanl aiid remit back the matter to flie Tribunal to decide afresh. While taking decision, the earlier fladings gwen by fhe Tribunal shaU not be taken into jconsideration and afi'esh findmgs shall be glven on all tlie issues and the additional issues wliich may be framed by it. 14. Needless to mention that the pairties sliali be provided opportumty to aniend tlie pleadmgs, addyce further evidence, file docuiiients or get tiie docimients verlfied etc., on issues on flie basis of tlie pleadmgs already on record and thereafter, award shall be made airesh. 15. The records of the Tribuiial shall be sent back without any furtJier delay. 16. Partles shall appeai' before fhe Prmcipal M.A. C.T., Disti'ict Judge, Dhaiiitm-i on 15th September, 2011. 17. No or-der as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge