^' Dl^S?OT ..•'..,. '»... IN THE HON'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR M.A. (Cl No.'~7^ ^ /2008 APPELLANTS ^^. Q?-M" 9H^3. ..-•:^w ,..^y ^^••A' ^.^^' 1. Sewaram D^wangaa, aged about 50 years, S/o Shri Dauaram Dewangan, ^2. Smt. Meena Dewangan, aged about 46 years, W/o Sewaram Dewangan, Anil Dewangan, aged about 28 years, S/o Shri Sewaram Dewangan AU appeUants are resident of Ramkund, Uchhla Talab, Raipur,. Tahsil & District-Raipur (C.G.) VERSUS 1. Suraj Prasad Yadav, S/o Shri Ramniwas Yadav, aged about 55 years, R/o Near Itabhatta, "s" Durgapara, Raipur, P.S. Khamtarai, TahsU & District-Raipur (C.G.) ^ 2. Purushottam Solaald, S/o Shri Monji Bhai Solanki, R/o PhaphadiEi, Raipur, TahsU & District-Raipur (C.G.) ^—3. The Oriental Insurance Company Limited Through : Divisional Office ' D.O.-2 Chabra Complex, Devendra Nagar Road, Sai Nagar, Raipur, c TahsU & District-Raipur (C.G.) MEMO OF APPEAL UNDER SECTIOlfl73 OF THE MOTOR VEHICLE ACT 1988 FOR ENHANCEMENT RESPONDENTS Driver Owner Insurer HIGH COURT OP CHHATTISGARH, BILA8PUR DB: Hon'ble I. M. QUDDUSI & Hon»blePRASHANT KUMAR MISHRA, JJ APPBLLANT: M.A(Cl.No.655/2008 Purushottain Solanki Vs. u RESPONDBNTS: The Oriental Insurance Co. Ltd & others APPBLLANTS: ^ ^ RESPONDBNTS: APPBLLANT: RBSPONDENT8: M.A(Q.No.749/2008 Sewaram Dewaagaa and others Vs. Suraj Prasad Yadav aad 2 otitiers M.AfCI.No.1009/2008 Oriental Insuraace Company Ltd Vs. Sewaram Dewaagaa & others MI8C. APPEAL8 UNDBRSECTION 173 OF THB MOTOR VEHICLES ACT. 1988 Appearance: Mr. Sachia Siagh Rajput, counsel for the appeUaat ia M.A(C).^No.655/2008 and respondent -owner in MJ Nos.749 & 1009 of 2008. Ms, Sunita Jam, counsel for the appeUants m M.A(). No.749/2008 aad respondents/claimaiits in M.A(C ). N0.655/2008& 1009/2008. Mr. Sudhir Agrawal, counsel for the appeUant ia M.A © No. 1009/2008 and respondent msiirer in M.A(C). Nos. 655/2008 & 749/2008 ORAL ORDER (10.03.2011) As per I.M. QUDDUSI, J, 'b 1. These are 3 appeals filed against the iolpugned award dated 18.02.2008 passed by X Additional Motor Accident Claims Tribimal (F.T.C), Raipur, ia Claim Case No.54/2007. 2. M.A(C). No.655/2008 has been filed by the owner chaUenging the direction of the Tribunal regarding pay aad recover. M.A (C) No.749/2008 has been med by the claimaats for enhancement offhe compensation aad M.A(C). No. 1009/2008 has been fUed by the Insurance Coinpaay on fhe ground ofvaUdity ofdriving Ucenseas also quaatuin, 3. Brief facte of the case as per the version of claimants are fhat in the night of 03.02.2007 at about 10.30 deceased Suiul Kuniar Yadav was coiniag on cycle to his house at Ramkund froin Madhuban Furaiture Pandri, Raipur where he was workuig as accountant On ftie way at Devendra Nagar Chowk one Tata Indica Car bearing C.G.No.04-7211 which was beiag driven by non-applicant no. 1 m a rash and negUgent maaner dashed fhe cycle of Suiul Kumar, as a rcsult which, he sustained serious mjuries aad died. At the ticae of accident, the deceased was a'young man of 25 years old; he was workmg as Accountant in Madhuban Fumiture Pandri aad ia leisure times, he was also undertakiag tuitions. As such, he was eaniing Rs.7,500/- per month. The claimants being dependents/legal representatives offhe deceased have made claim to the tune ofRs.49,00,000/- on various heads. 4. Leamed Claims Tribunal has held that the offendiag veliicle was involved in fhe accident ia which deceased sustamed mjiuies aad died. However, fhe Tribunal has held that it is partiaUy proved fhat fhere was breach ofpoUcy coiaditions as the driver was not haviag valid aad eflfective driviag Ucence. 5. We have heard learaed coiinsel for fhe parties aad have gone through records offhe Tdbiinal. ; H 6. A perusal of fhe record shows fhat it is not kaown as to whefher the license was issued and renewed at any point bf tune by fhe R.T.0, Bilaspur aad ordy exaiaiaation of an eiiiployee of R,T.0. Raipur nauiely Rajesh Kuniar Bhargav, has been done. But no reason has been assigned as to why aa order for pay and recover has been uiade to fhe Insuraace Company as fhere is only a decision of fhe Apex CouLrt ia National Insurance Company Vs. Swarn Singh & others reported in (2004) 3 SCC 297 by which a direction was issued to fhe Insuraace Com-paay to pay aad recover, therefore, such direction was not li&ble to be issued in all cases except ordy ia similar set of facts aad circiimstaaces as mentioned m Swam Singh Case (supra). In view of the above, the clauns Tribunal should have made a scrutiny of fhe case in fhe Ught of the Swam Singh's Case asid only fhereafter should have taken a decision regardiag direction to pay aad recover to fhe Insiiraace Coiapaay raore so when fhere is an aUegation of fhe Insurance Coinpaay that there was no Ucense issued to the driver ofthe offending vehicle. 7. However, leanied counsel for the owner has subniitted that ia fact, the driver was having valid aad effective drivmg license but fhe matter remained ia dlspute m absence ofaay prbper enquiiy by the Tribunal. He further submits that the Tribunal has not examiaed any official from R.T.0. Bilaspur to enquire iato fhe docuiaents filed by fhe owner aad driver </' ^ 1 ./ regardiag issuaace of driving license, fhereforc, it has not recorded a definite fmdiag on issue No.2. ^ 8. It appears ftiat fhe Tribuual has not conducted proper enquiry as provided ia statate on fhe above poiats. 9. Rule 226 of C.G. Motor Vehicles Rules, 1994 provides that fhe Clamis Tribunal shall obtain whatever mformation aad documents which may be found necessary from fhe poUce, raedical aad other aufh.orities aad proceed to award fhe claiin whefher ftie parties who were given uotice, appear or not, on the appoiated date. Further we cannot ignore ftie provisions of sectionl68 of the Motor Vehicles Act, 1988 which provides fhat on receipt of an application for compensation made u/s 166, fhe Cl^aims Tribunal shatl after giviag fhe parties (iacludmg the iasurer) aa opportuiuty of beiag heard, hold aa iaquiiy iato ftie claim and subject to fhe provisions of section 162 inay inake aa award determiaiag the amount of coxnpensadon which appears to it to be just. However, fhe Tribunal has not c^nducted any enquiry m fhe manner mdicated above. 10. Hon'ble the Suprcme Court in Raj Kumar -vs- Ajay Kumar and another decided on 18th October, 2010 aad rcported m IV (2010) Accident 8s Compensation Cases 81S (SC) held that sections 168 and 169 offhe Act make it evident that the Tribunal does not functton as a neiitral lunpire as ra a civU suit, but as aa active explorcr aad seeker of trufh who is required to 'hold aa iaquiry iato fbe claim' for detennmmg fhe 'just compensation'. The Tribunal should therefore take aa active role to ascertaia the true and coiTect position so fhat it can assess the 'just compensation'. 11. The claimants appeal is for enhanceiiient of fhe quantani, therefore, we are of fh.e opioion, first the above uientioned pomts are to be determined by the claims Tribunal aad fhen only fhe question ofquantum would arise. 12. In view of the above, we aUow M.A©Nos. 655/2008 & 1009/2008 ia part, set aside fhe iaipugned award dated 18.02.2008 aad rcmit the matter back to the Tribunal for decision a&^esh ia Ught of fhe | observatfons inade herexaabove. The Tribunal shaU conduct enquiry on ftie above poiats under rule 226 of C.G. Motor Vehicles Rules, 1994 which provides fhat the Claims Tribunal shall obtain whatever mfonnation aad documents which may be found necessaiy. Furtlier flie pardes shall be aUowed to amend the pleadings, adduce further evidence, if aay, file fhe docuinents or get fhe docuinents venfied ete., aad fhereafter fhe Tribiiual shaU decide fhe claim petition afresh at fhe earUest ia Ught of fh.e observations inade hereia above. The Pardes shall appear before the Tribunal on 06th of April, 2011. The Tribunal shall make aa endeavor to decide fhe claim petition as early as possible preferably withia a period Qfsixmonths. • 13. Siace fhe matter is remitted back to fhe Tribunal for decision afresh, fhe claimaats may agitate flieir point of quaatum. Hence, the appeal ffled by the claimaats i.e., 749/2008 has become iafructuous. The appeUaiit/ Insnraace Compaay has uioved aa appUcation for ainendnient ia fhe pleading but ^ Rao siace we have akeady directed fhe Tribunal to allow fhe parties to amend pleadings, it may move appUcation before the Tribunal. 14. The amount which has already been deposited by the Insuraace Company shall remaia ia fixed deposit with any NationaUzed Bank tiU fhe award'is made afresh. 15. In the result, M.A(C).Nos.655/2008 & M.A©No. 1009/2008 are aUowed ia part aad M.A©No.749/2008 is dismissed as iafractuous. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge