J L -I/'V^\/!V;.V/-^-^-L,^. c<F< IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR ivis M.A. (C1 N0. rl APPELLANTS (Claimants Before the Tribunal) ^.^' ^ ^- .^ •^•^' ^••- RESPONDENTS Non-Applicants Before the Tribunal /2010 (D.B.I :^1. Smt. Nanda Devi, W/o Late Shri Ramji Verma, aged about 45 years. 2. Urvashi Verma, D/o Late ^ Shri Raniji Verma, aged about 22 years. 3, Lokesh Kumar, Verma, S/o Late Shri Ramji Verma, aged about 13 years Minor Guardian through mother Smt. Nanda Devi, appellant no. 1 All are residents of Devendra Nagar, Sector - 3, Janta Quarter No. 12, Raipur, Tahsil & Distt. Raipur (C.G.) VERSUS ^'1. Manoj Verma, S/o Tangu Verma, aged about 28 years, R/o Kurra, Post Nandghat, Distt. Durg (C.G.) (Driver of Vehicle No. C.G. 04, ZB-2439) 2. ^" <%- x Smt. Anjum Bano, W/o Haji Gulam, aged about unknown, R/o Subhash Nagar Modahapara, Raipur Tahsil & District Raipur (C.G.) (Owner of Vehicle No. C.G. 04, ZB-2439) Shikumai1—DhiwarT- ST^TT '<Sr- fcate—§hri—Sukhdiaiid- Chiwar,—aged —about unknown,—R/u—fafadih ©liuwk,—Raipur, —-Bistt: Ra^ur [C.Q.) ^mtttedh ^.^ @).S. Branch Manager, ^' The New India Insurance Company Limited. Branch Office Civil Line, Baloda Bazar, Distt. Raipur (C.G.) MISCELLANEOUS APPEAL U/S 173 OF THE MOTOR VBHICLE ACT. __T!»5.— HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants/ Claimants before the Tribunal Respondents Non-applicants before the Tribunal M.A. M No. 29/2010 Smt. Nanda Devi and others Vs Manoj Verma and others ORDER FOR CONSIDERATION Sd/- G. Minhajuddin Judge ^"9r2011 HON'BLESHRI I.M. QUDDUSI. J 3-3 Sd/- I-M.Quddusi Judge ^.9.2011 POST S=OR ORDER ON 2-7 SEPTEMBER. 2011 Sd/- G. Minhajuddin Judge ^' ^^•^^. ,;?,f-<'^ %.. /y .j ^s"i:y HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants/ Claimants before the Tribunal Respondents Non-applicants before the Tribunal M.A.rclNo. 29/2010 Smt. Nanda Devi and others Vs Manoj Verma and others Present: Mr. C.R. Sahu and Mr. Anil Sonmani, counsel for the appellants. Mr. Shailendra Sharma, counsel for respondent No.3. ORDER (Passedon^-^ September, 2011) Per G. Minhaiuddin. J; 1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the award of the 9th Additional Motor Accident Claims Tribunal (FTC), Durg, dated 11th December, 2009 passed in Claim Case No.50/2008 whereby the claim petition of the claimants for compensation under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") has been dismissed. 2. Brief facts of the case are that on 2.5.2007 Ramji Verma, was going to Raipur from Bhilai on his motorcycle. At that time, at about 1.30 pm, respondent No. 1 by driving the vehicle bearing registration No. CG 04-ZB 2439 (hereinafter referred to as "the offending vehicle"), which was owned by respondent No.2 and insured with respondent No.3 at the relevant time, in a rash and negligent manner, dashed the motorcycle of Ramji Verma near Kanji House Chowk, Kumhari. On account of the accident, Ramji Verma sustained grievous injuries and thereafter, he was taken to the hospital, where he succumbed to the injuries. Report of the accident was lodged at Police Station - Kumhari for the offence under Sections 279, 337 /£^"\ ! 9^^ 1 '^^i^\ 'S I.!. lj i '^,'"'—"'...,." '~-'^~ , .^.^ and 304A of the IPC and after completing investigation, charge sheet was filed before the competent Court. 3. At the timeof incident, the deceased was 51 years of age and was drawing salary of Rs.21,200/- per month by working as CTO in Central Bank of India, Branch Sadar Bazar, Raipur. The claimants, who are his widow and children, were dependent upon him. Therefore, they being the legal heirs of the deceased, filed a claim petition under Section 166 of the Act, 1988 for a total compensation of Rs.21,90,600/- under various heads. 4. However, learned Tribunal, after hearing counsel for respective parties, after close scrutiny of the evidence adduced by the parties before it, dismissed the claim petition of the claimants on the ground that the deceased himselfwas negligent. 5. We have heard learned counsel for the parties, perused the LCR as also the impugned award. 6. In support of their claim petition under Section 166 of the Act, 1988, the claimants/LRs of deceased Ramji Verma have examined Smt. Nanda Devi, widow of the deceased as AW-1 and J.P. Hedau, Sr. Manager, Central Bank of India, Branch - Sadar Bazar, Raipur, as AW-2 as well as Ravindra Kumar, independent eyewitness as AW- 3. In addition to the oral evidence, documents Ex. P/1 to P/20 have been filed which are certified copies of the documents filed along with the charge sheet, which has been filed against respondent No.l/driver of the offending vehicle for the offence under Sections 279, 337 and 304A ofthe IPC. 7. The Tribunal while deciding Issues No. 1 & 2 with regard to negligence of the driver of the offending vehicle and the deceased has recorded a finding that the accident had occurred solely on account of negligence of deceased Ramji Verma and on the basis of this finding, dismissed theclaim petition filed by the appellants/claimants. 8. It is not in dispute that immediately after the accident, which had taken place on 2.5.2007, on the report of respondent No.l/driver of the offending vehicle, offences were registered against injured Ramji Verma, who subsequently succumbed to his injuries on the very same day. On account of death of Ramji Verma, the police submitted the final report (khatma report). At the time of accident, the presence of Ravindra Kumar (AW-3) has not been denied or challenged on behalf of the owner and driver of the offending vehicle. Although FIR (Ex.P/2) was lodged belatedly by the eyewitness Ravindra Kumar, but from the evidence of Ravindra Kumar, it is clear that at the time of accident he was hardly 20-25 paces behind the offending vehicle and was riding a motorcycle and at that time, the deceased was also ahead of him and in between Ravindra Kumar (AW-3) and the offending vehicle, which came from the side of approach road and was in the process of crossing the four lane with intent to go to the other side, the deceased was riding his motorcycle. Ravindra Kumar has stated in very clear terms in his statement that while crossing the divider with intent to go to the other side of the road, the driver of the offending vehicle i.e. Manoj Kumar, without giving any indication, all of a sudden, applied the brakes, on account of which deceased Ramji Verma, who was going just ahead of Ravindra Kumar (AW-3) could not stop his motorcycle and collided with the offending vehicle, which was in the process of crossing the divider. From the statement of Ravindra Kumar (AW-3), when taken as a whole, it is clear that the accident had occurred on account ofabrupt applying of the brakes by the driver ofthe offending vehicle i.e. respondent No.1 Manoj Verma. 9. From the totality of the facts and circumstances as well as the statements of eyewitness Ravindra Kumar (AW-3), it is prima facie apparent that there has been negligence on part of respondent No.l/driver of the offending vehicle to whatever extent it may be, which had also contributed towards the accident. 10.It appears that the claims Tribunal has not discharged its duty enjoined upon it by conducting a proper enquiry as envisaged under Sections 168, 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994. In deciding the applications for compensation under Section 166 of the Act, 1988, the claims Tribunal has not to act as an umpire as in a civil suit but as an active explorer and ^^. 1. ks^.. seeker of truth for ascertaining the fact with a view to award just compensation. At this stage, it would be appropriate to quote what the Hon'ble Apex Court has observed in para-11 in the matters of Raj Kumar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Scale 265: "Para 11 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 of the Act make it evident that the Tribunal does not function 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'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence /f' ^. "'^ ^ ^ \ ? ISE:'^ I 5' k K JJ '%.. ^ff^^^ ^^^^' ^NKII^ about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 11.In view of this, we are of the considered opinion that the matter needs to be remitted back for reconsideration to the claims Tribunal. 12. In the result, the appeal is allowed in part, the impugned award is set aside and the matter is remitted back to the claims Tribunal with a direction to conduct a proper enquiry as per provisions of Sections 168, 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994 and then pass an award afresh, as early as possible, preferably within a period of three months from the date of appearance of the parties before it. 13. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall, if necessary, also call for record of the criminal case pending against respondent No-1/driver of the offending vehicle Manoj Verma and if necessary, may also summon the eyewitnesses for ascertaining the truth. 14.Parties shall appear before the Tribunal on ...l.^.T:, 15. LCR shall be sent back to the Tribunal without further delay. 16. No order as to costs. 17.Certified copy as per rules. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge ^n ^ J