IN THEHIGH COURT OF CHHATTISGARH AT BILSPUR CHHAmSGARH . . Dl^lsic M.A.C.NO. 2_C14 /2011 iS.aO APPELLANT ,s^-" /•'\a^'_- (Insurer) ./-^/tt/ Dhamtari -<y/ ational Insurance Company Limited ^y£^ s-^y <^L^ « ./"^ Through Authorised Signatory Divisional Office B-l Taha Coinplex Priya Darshani Nagar Bilaspm- C.G ^',n^ SPONDENTS :-l^Dhananjay Haldhar S/o (^vina^ (Claimant) Driver Haldhar aged 30 year's R/o Village P.V. 32 P.S. 85 Tehsil Pakhajur District North Bastar Kanker (C.G). Sandeep Bairagi S/o Pulin Bairagi C-- aged 20 years R/o ViUage P.^fii^p.S SE Tehsil Pakhajur District North Bastar Kanker (C.G). 3. Pulin Bairagi S/o Tarpad Bairagi R/o VUlage P.V 32 P.8 & Tehsil Pakhajur District North Bastar Kan^er (C.G). MEMOOF APPEAL UNDER SECTION 173 OF THE Owner -•-.^^t -^- '^ /- fc-. ^- ^- .--rt·^TU?^'^ ^J ^.:'/^.^Tl^i^J' f'.^'r:r\^\ l. 't-a2^£!^ l? S. fr3^ 't-^'^' ''•'Ei^TA^- HIGH COURT OF CHHATHSGARH, BILA8PUR DB: Hon'ble I. M. QUDDUSI & Hon'ble GHULAM MINHAJUDDm, JJ APPELLANT: RESPONDBNT8: M.AtCl Mo. 294/2011 National Insuran<;e Coiapaay Limited Vs. Dbanaajay Haldhar & others MISC. APPEAL UMDER SBCTION 173 OP THE MOTOR VEHICLES ACT. 1988 Appearance: Mr. S. N. Nande, coiinsel for the appeUant. None for the respondents thoilgh served. Per I.M. QUDDUSI. J. ORAL ORDER (04.07.2011) 1. List is beiag revised. Case is again called out. No one appears on behalf of the respondents even when the matter is taken up twice. However, leamed counsel for the appeUaat is present. Therefore, we proceed exparte agamst the respondents. 2. This appeal has been filed by tbe Insuraace Coiapany agauist the impugned amaid'd&ted 30.11.2010 passed by Addl. Motor Accident Clauns Tribuiial, Bhanupratappiir, Distnct Kaaker (North Bastar) (C.G) m Claim Case No. 30/2010 inter-alia rejectmg fhe application filed u/s 170 of the Motor Vehicles Act and the unpugned award so far as it relates to the quaatum. [——-r Brief facts of the case as per the version of claiinaat injured are that on 17.07.2009 the claimaat along-wifh his fijend Vishwajit Pal was coming fiTom Paakajur to their hoiae viUage P.V. 32 by Suzki Motorcycle. The claimaat was sittfng as pillion rider whereas his fiiend Vishwajit was drivuig the aaotor cycle. On the way at about 7.30 p.iu. near Pran Dhaba at viUage P.V. 32 one Hero Honda Motor Cycle bearing Regn.No. C.G. 04-DG/5099 which was bcmg driven by its driver Saadeep Bauagi ia a rash and negUgcnt maoner dashed the niotorcycle of the claunaut, duc to which, Dhananjay Haldhar sustained fiactures on his tbigh aad leg bones. He was admitted ia Civil Hospital Pankhajur where he was given prunaiy treatment. Thereafter he was admitted in Christian Hospital, Dhamtari where an operation was conducted on his leg and a rod was inserted. He remained admitted and he stayed fhere for treatment for 3 monfhs. The claimant became pennanently disabled due to fhe injiuy sustained in his both legs. Therefore, he fUed claua petrtion u/s 166 ofthe Motor Vetucles Act claiming coiupensation to fhe tune ofRs.5,65,000/- on various heads. The leamed Claims Tribunal having regard to fhe facts situation and evidence on record has awarded a total compensation ofRs.4,15,000/^. holdiag tfaat respondeat no.2 has driven the Hero Honda Motor cycle in a rash aad negligent manner and dashed the Siizki Motorcycle, as a result of which, claimant sustaiaed serious injuries and became permanenfly disabled aad fhere was no breach of policy conditions in respect ofHero Honda Motorcycle. /. ^' .'''. 6. We have perused the impugned order passed u/s 170 ofthe Motor Vehicles Act. In para 10 ofthe written statement filed by rcspondents 2 & 3 i.e., owner & Driver, itwas aUeged fhat the FIR was lodged against both the vehiclcs that they have coUided with each other but the Tribunal had faUed to consider the question of contnbutoiy negligence. Further the owuer and driver/respondents 2 & 3 iu their written statenient have steted that whatever amoiuit of coiapensation is to be fixed by the Tribunal, the Insuraace Compaay would be responsible to pay. In such circuiustaiices the Tribtmal should have treated ttus part of the written stateiaent as collision betweea the two motorbikes aud fherefore, the application u/s 170 ofthe Act should not have beeu rejected. Further no permaaent disabflily certificate issued by the Medical Board was filcd. Sections 168 & 169 of the Motor Vehicles Act, 1988 and Rule 226 ofthe C.G. Motor Vehicle Riiles, 1994 provide tfaat the Tribunal shall comluct an enquiiy to ascertam the facts and in such circuinstaaces, the Tribunal should have referred the injured claiaiaat to fhe Medical Board to ascertain fhe degree of permaaeitt digabiUty if any aad fhen ordy should have made asscssinent ofcoiapensation but fhat has not been done. Further in Kd/ Kwsnar -va- Ajoy Kumar and cwwther decided on 18th October, 2010 and reported in N (' 10) AcctOent & Cumpensatton Cases 81S (Sf^ Hon'ble the Apex Court held fhat fhe claun pctition should not be treated as a civil suit and it is the duty of fhe Tnbunal to conduct aa enquiry. In para 11 of the said case, it has been further held that Sections 168 and 169 ofthe Act make it evideat that the Tribunal does not function as a neutral umpire as in a civil suit, but as aa active explorer and seeker of truth who is reqtured to liold au iaquuy into the clann' for determiumg the 'just coiapensation'. The Tnbuaal should therefore take an active role to ascertain fhe true and correct position so that it caa assess the 'just coiapeusation'. 8. Therefore fhe matter requires reconsideration at fhe end of fhe Tribuual in fhe Ught of the observations inade above. Hence, we aBow thls appeal ia part aad reinit the mattcr back to the Tribunal for decision afresh. 9. Necdless to inention that thc pardes shaU be allowcd to amend fhe pleadiags, adduce furtfaer evidence, file the docuiuents or get the documents verified etc aad thereafter the Tribunal shaU. take decision at the earliest after conducting enquiry, if uecessaiy. The Records of the Tribunal shaU be sent back without farther delay. 10. The amount which has already been deposited by the lusuraace Compauy shatl reinain in a fixed deposit tiU 6esh decision is taken by the Tnbunal. ——— Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Rao 1