V^Mm IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.l M.A.NO. /d5>$/2004 APPELLANT LAIMANT / ^ Manqj Kumar Pandey son of Shri Kashinath Pandey, aged about 26 years, occupation driver, residence Mohalla Bauripara, P.S. 8& Tah. Ambikapur, District Surguja (C.G.) VERSUS ^/ . RESPOINDENTS /r,v\ ./w ^/ v<// ^y/i' n'w ff/}iA '^ ./. XV /'^••'^ s-\^ 2. € Smt Pushpa Devi, daughter of Shri Ramprakash Dubey, wife of Virendra Nath Pandey (Patwari), aged about 35 years, owner of vehicle Marshal Jeep No. CGO 15/2610 resident of Mohalla Bauripara, Near Heera Hardware Gully, P.S. and Tah. Ambikapur (CG) Branch Manager, the >riental Insurance Co. Ltd., Branch Anibikapur (CG), Office Near Ambedkar Chowk, Ambikapur, Distt. Surguja (CG) ^-- MISCELLANEOUS APPEAL UNDER SECTIQN 173 OF THE MOTQR VEHICLE ACT, 1988 1. Amount claimed before learned Clainis Tribunal.. Rs. 14,02,478/- c Y..,-' HIG»CiOIBBT OBI CSIHATTIfifiARHs BI1A8WIR D.B.: Hoa'bte ^ri L N. Quddiwl» Honlrfe «urlNantnAa Noluua Itorlwartwa, JJ. Aw»eaant tf^tftlimittttt' Rewiondente MJLNo.1055 of 2004 Manoj Kumar P&ndey Veiwu? Smt Pushpa Devi and anofher ptUaceBaneoua iq e<d luulcr Scctloa 173 <rftke Motor Vchlcte Act, 1^88] PrCTMeat: - Shri Tarun Daiisena, counsel for the appellant Ms, Pushpa Dwivedi, coiiasel for icspondent No.l. Shn Avixiash K, Mishra, couiisdl for respfflideat No,2- Insurance Company, ORDBR (ORAU (Passed oa thte 21rt day ofOctobcr, 2010) Pe»LM. OUDDU8I 1. Tfais appeal has been fited by the agaiost tfae impiigiied award dated 03-09-2004 passed by fhc Motor Accident Claims Tribunal, Siirguja at Ambftapur (hereinafiter referred to as <tftihe TribuiiaF) ia Motor Accident 1 Claim Case No, 126/2003 dismissing fhe claiin petitk>n on fhe giound fhat fhe accident in question had taken place due to negligeitoe of the mjured- claiaaant himself, who was driver ofthe vehicle. 2. Brief facts of fhe case as per fhe veisi&n of the appellant-claimant arc fhat on thc date of incidcnt ie.24-07-2003 at about 10.30 P.M. whilc he was rcturamg j6x>m Raipur to Ambikapur by driviag fhe vefaicte in question Le.MarshaUt Jeep bearing RegjstratiMi No.C.G. 15-2610, maL the highway near Dharsiwa, fhe st^rii^ of fhe vehicle was jammed and as a lesiilt of which, vehicte became uncontrolted a&d coMided with a tnick beariog Registeatfon No.M,P.23-B-372l, which was standi&g 011 xt tti Triangle and not visible due to lieayy darkxiess* As a xesult of the said ac^ident, ihe appeBaat had recewed severc iojiiries aod s^fflfercd with perDianent disablement The present appeflaat is fhe driver of respondent No. 1, As AppeUant has fited a claini petition against fhe respoiidents under various heads as piovided under fhe Motor Vehwle Act, but fhe same was dismissed. Heiice fhis petition. 3. We have perused fhe lawer Court recoid which shows fhat fhe claim petition was fOed under Sectibn 166 rcad wiffa Section 163-A of the Motor Vehicles Act, 1988 (In ahort <<fhe Ac€}wherein the mcome of the claimant was mentioned as Rs.3,000/- per monfh meanmg thereby fhat the arimial income wouM come to Rs.36,000/- Le. tess than Rs.40,000/-. OWSK thc claitiiaiit has filed a claiai appKcatioa uader Section 163-A ofthe Act^ there would have beeii 210 question of dismissitig the same by faoldiag fhat fhe accident in question had tsdcen place due to ncgligencc cxfdriver as sub sectioa (2) of Section 163-A of fhe Act provides tiaat in any claim for compensadon under sub-section (1), fhe claiinant shaU not be rcquircd to plead or establlsh fhat fhe deatti or penaaneiit dfeabtemeat ia respect of which fhe claim has been inade was due to any wxoaigfiil act or xieglect or defeult of the owner of fhe vehicle or vehictes concerxied or of any ofher person. Permanent disabiUty certiDcate is available with the reconl of the lower Court which is Ex.P-115, 4. Learaed couiuselappearing for respondciit No,2/Iiisurance CotELj^ay has suhxnittal fhat in the application filed under ^ctiom 166 of the Act, Sectioa 163-A offhe Act lias also been mcntaoned. If Scction 163-A of fbc Act witt be mentioncd in fhe appUcatfon filed under Sectfa>n 166 of fhe Act, it wiU eflFect fhe claim. Sub Sectioxi (1) ofthe Section 166 ofthe Act clearty pixwides fhat da application fbr coixipeasation arisixig out of aii accideat of the nature specified in sub scction (1) of Sectaoa l^> nuy be made: ^./ V.-- (a) by the person who has siistamed the mjmy; or (b) by fhe owner offhe property; or (c) where deatti has resxilted jGpom fhe acscident, by aU or a&y of the legal representatives ofthe deceased; or (d) by any agent diily au1iiori2»dby the ,persoxi iajured or aU or aaiy of fhe fcgal representatives ofthe decefi^ed, as fhe case may be. Therefore, movin^ an application for gyaoit of CQmpensation tmder ^ction 166 of fhe Act piayer fbr coiifiaement of titie same onfy to fhe exteat of Sectk)ii 163-A offhe Act is uot an iBegality, but it would be termad to be aa iUegality if fhe application is tpeated anty under Section 166 of the Acfc Morcover, when the income of fhe applicant assessed is less thaai Rs,40,000/-, it was incuiabeiit on fhe yart offhe Cfaims Tribuxial to decide fhe same by applyiag fhe proviskms ofScction 163-A ofthe Act 4. In view of the above, we alfcw fhe appeal in part, set aside fhe impugiied awaid dated 03-09-2004 aad reixiit fhe matter back to the Tribunal for decidixig fhe claim petition aJ&esh after piovMlmg opix>rtii2iity to fhe pardes coiiceraed to adduce further evidence, if aay, or to mcwe an applicatioii by the claimants Jfor amendment if fh^r so desirc to saaend fhdir pleadiags, The Tribimal shaU decide fhe claim petitk>n afesh as eariy as poss&le prefeiably wifhm a period of four months froni fhe date of receipt of record, The records of fbe TribiiDal shall be sent back to fhe Ttibunal forthwith. The Tribunal shall issue notice to tte appeUaat aad the Insurance Company afi^esh, The appellant and fhe Iiisiuramce Conipany, who arc prcsent here, shaU appear beforc the conceraed Trflbunal on 15-11-2010. No orders as to cost Sd/- I.M.Quddusl Judge Sd/- Manindra Mohan Shrivastava Judge