^Tf^ IN THE HIGH COUftT OF JUDICATURE AT BILASFURIC.G.l ^ i MISCELLANEOOS. A BifliL 1X0. /2003 APPEAL UNDER SECTION 173 OF M.V. A!2T. 1988 (Claun in Appeal Valued at Rs.3.Y7.000/-l /' APPELLANT/ (INSURER) RESPONDENT DRTVER RESPONDENT OWNER RESPONDENTS CLAIMANTS <c ^^ ^^ ^ ^•">%- . '••""c^'^y' -^A'^'3^ -ff" .••"' <;v ^•'-~ -.. s>*s' ^' •»* ^ .-< <: 2. 3. The Oriental Insur^nce Co.Ltd., Through Sr.Divisional Manager. Divisional Office, Opp. High Court, Bilaspur (C.G.) Vs. Baldev Singh, S/0. Ajab Singh, Aged about 26 years, R/o. Sector - 6, Bhilai, Tahsil 8s Dist. Durg (C.G.) Awtar Singh, S/o. Baldev Singh, R/o. Santrabadi, Durg, TahsU 85 Dist. Durg (C.G) Sahdunisha, W/o. Magdum Ali, Aged about 65 years, Occupation - House wife, Ku.Sakila Bano, D/o. Magdum Ali, Aged about 17 years, Ku.Nasiina Bano, D/o. Magdum Ali, Aged about 15 years, No. 4 8s 5 minors fhrough Mother/natural guardian Respondent No.3 AU R/o. House of Prakash Masih, Opp. Dargah, Income Tax Office, Raipur (C.G.) 6. Pradeep Choubey, .5<- RESPONDENT MOTOR CYCLE OWNERS/o. Ramji Choubey, R/o. Pandri, -" Near Shiv Mandu", Raipur (C.G.) '.5^i^~>^< . ^—^.~^.^.... RESPONDENT 7 INSURER OP M/CYCLE •'^The New India Ass. Co.Ltd., rhrough its Divisional Manager, Divisional Office, Jail Road, Raipur (C.G.) !.!^ a.sat,, BW !'1^<^~ "]E~"l^ HIGH COURT OF CHHATTISGARH AT BILASPUR s'WgJH lil;B:niM1aSH D.B.: hlon'ble Shri Justice I.M. Qyddysi and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.212 of 2003 Appellant Respondents versus The Oriental Insurance Co. Ltd. 1 Baldev Singh and others Present: Shri Vinay Harit, Senior Advocate with Shri Vinod Deshmukh, counsel for the appellant. Shri S.C.Verma, counsel for respondents No.3 to 6. Shri Parikaj Agrawal, cpunsel for respondent No.8. None for other respondents. Miscellaneous Appeai. ynder Section 1 73 of the Motor Vehicles Act Miscellaneous Appeal No.213 of 2003 Appeliant Respondents versus The Oriental Insurance Co. Ltd. Baldev Singh and others Present: Shri Vinay Harit, Senior Advocate with Shri Vinod Deshmukh, counsel for the appellant. Shri S.C.Verma, counsel for respondent No.3. Shri Shree Kumar Agrawal, Senior Advocate with Shri Pankaj Agrawal, counsel for respondent No.5. None for other respondents. Miscellaneous Appealjjnder Section 173 of the Motor Vehicles Act IVIiscellaneous Appeal No.214of2003 Appellant Respondents versus The Oriental Insurance Co. Ltd. Baldev Singh and others 't6SI •?!!» n.'ss Present: Shri Vinay Harit, Senior Advocate with Shri Vinod Deshmukh, counsel for the appellant. Shri Pankaj Agrawal, counsel for respondent No.7. None for other respondents. MiscellaneQys.Ap£eaLunder_SectiorL173 of the Motor Vehicles Act ORAL ORDER (Passedon 30th March, 2011) Per I.M. Quddusi.J.: Heard. 2. Miscellaneous Appeal No.212 of 2003 has been preferred by the Oriental Insurance Company Limited against the award dated 26-9-2002 passed by the 5h Additional Motor Accidents Claims Tribunal, Raipur in Claim Case No.15/1993. 3. Miscellaneous Appeal No.213 of 2003 has been preferred by the Oriental Insurance Company Limited against the award dated 27-9-2002 passed by the 5* Additional Motor Accidents Claims Tribunal, Raipur in Claim Case No. 16/1993. 4. Miscellaneous Appeal No.214 of 2003 has been preferred by the Oriental Insurance Company Limited against the award dated 25-9-2002 passed by the 5th Additional Motor Accidents Claims Tribunal, Raipur in Claim Case No.14/1993. t 5. Case of the claimants of all the three claim cases, according to them, is that on the date of acddent, i.e., 4-5-1993, at about 12 O'clock in the night, non-claimant Batdev Singh had parked a truck bearing'registration No.MBR 8648 negligently on the middle of the road without putting the parking light on. At that time, Suresh Kumar ;:^tefeT^\ ts^ iatita!- Chhura, Rajesh Kumar Bundela and Jameel Ahmed were coming from Mandirhasaud to Raipur riding together on a Yamaha Motor Cycle bearing registration No.MP 23 F 2000 and as soon as they reached near Chherikhedi turning, they dashed with the said truck parked on the middle of the road. As a result of the accident, all the three riders of the motor cycle died on the spot. The incident was repbrted to the Police Station Mandirhasaud. 6. Legal heirs of the deceased Suresh Kumar Chhura, i.e., wife, two daughters and mother preferred Claim Case No. 15/1993 under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act') claiming compensation of Rs.9,60,000/-. 7 . Legal heir of the deceased Rajesh Kumar Bundela, i.e., mother preferred Claim Case No. 16/1993 under Section 166 of the Act claiming compensation of Rs.7,15,000/-. 8 . Legal heirs of the deceased Jameel Ahmed, i.e., mother and two sisters preferred Claim Case No. 14/1993 under Section 166 of the Act claiming compensation of Rs.6,36,000/-. 9 . In each ofthe three claimcases, the Claims Tribunal awarded compensatiQn of Rs.3,17,000/- in favour of the claimants fastening liability to pay the compensation on non-claimants No.1, 2 and 3 before the Claims Tribunal, i.e., driver, owner and insurer of the truck, respectively, jointly or severally. —^--f -^""^ r"r~^.-: Y. K .R'i'iS!S:!ESt!| 10. Since, all the three miscellaneous appeals relate to one and the same accident, therefore, they are being disposed of by this common order. 11. The impugned awards have been passed by the Claims Tribunal holding liability to pay the compensation on the appellant/insurance company mainly on the ground that the appellant was insurer of the truck in question, whereas learned Senior Advocate appearing for the appellant has denied this fact. In fact, the insurance policy is not on record nor any detail of the insurance pollcy is available on record. In the recordof Claim Case No.14/1993, the seizure memo (Ex.P-5) prepared by the police shows that R.C.Book and other documents/material were seized and seizure of insurance policy dated 6-6-93 has also been mentioned in the said seizure memo (Ex.P-5) as item No.4, but, it is not known as to who had insured the truck and by which insurance company the truck was insured. In the absence- of any material, the appellanVinsurance company has denied that it had insured the truck. 12. In fact, it appears that the Claims Tribunal has not conducted a proper enquiry to find out the truth. It should have summoned the police record.to verify the insurance policy and the insurer of the truck, but that has not been done. -a- 13. It has been provided in Rule 226 of the Madhya Pradesh/Chhattisgarh Motor Vehicles Rules, 1994 that the Claims Tribunal shall pbtain whatever information and documents which ^& M may be found necessary from the police, medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appointed date. Further, we cannot ignore the provisions of Section 168 of the Act, which provides that on receipt of an application for compensation made under Section 166 of the Act, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an enquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just. However, the Claims Tribunal has not conducted any enquiry in the manner indicated above. 14. In Raj Kumar vs. Ajay Kumar and another, 2010 (12) Scale 265, the Hon'ble Supreme Court has held in paragraph 11 of the report thus (only relevant portion is extracted below): "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'. .........." fS'SSS:SS 15. In view of the above, we are of the opinion that all the three claim cases require reconsideration at the end ofthe Claims Tribunal insofar as it has fastened liability to pay the compensation on the appellant/insurance company. 16. Therefore, we are not interfering on the question of quantum at this stage and remit the matters back to the Claims Tribunal for decision afresh setting aside the liability part of the impugned awards. The Claims Tribunal shall frame an issue and conduct an enquiry whether the appellant is liable to pay compensation and in fact insured the truck or not and if it is found that the truck was insured by the appellant, it may hold the liability to pay the compensation as already fastened in the impugned awards, otherwise, it may fasten the liability to pay the compensation on the owner of the truck. The amount, which is already in deposit, shall remain in deposit. 17. All the three miscellaneous appeals are allowed in part to the above extent only. Records of all the three claim cases shall be sent back to the Claims Tribunal without delay. The parties shall appear before the Claims Tribunal on 25 April, 2011. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further eviden.ee, file documents or get the documents verified etc. and thereafter award shall be passed afresh. There shall be no order as to costs. ___---- Sdf- I.M.Quddusi Judgp Sd/- Prashant Kumar Mishra Judge :3opsl