^.Sr^^s^^vwsi^aiiaswsi^... !'''• /•^. IN THE HON'BLE HIGH COURT OF CHHATTESGARH AT C ^ ?; ^ BILASPUR MISC. APPEAUC) N05300F 2009 ^§(^1 MISCELLANEOUS APPEAL UNbER SECTION 173. MOTOR VEHICLES ACT. 1988 Appellant l^on-Applicant No. 3 Respondents ^ (^AS^ ^"u^" ^••^^ yy s^'"' Branch Manager, United Insurance Company Limited, Anupama Chowk, Jagdalpur, Distt. Bastar (CG) Versus ^ B. Apparao, S/o Shri B. Paraiyya, aged 44 years, R/o Shanti Nagar Ward, P.S. Bodhghat, Jagdalpur, bistt. Bastar 2. Shri Satveer Singh, S/o Shri Jagar Singh, aged 10 years, Minor through through his father Jagar Singh, R/o Shantinagar Ward, Jagalpur, Distt. Bastar (C(5) Non-Applicants no. 1 & 2 M.b. Thakur, S/o Late Ranjeet Singh Thakur, aged 50 years. R/o House No. 17, Borsi Road, Adarsh Na9ar, bistt. burg (Chhattisgarh) Claimants "^' ^ .4' i S- 1"^is^<^ HIGH COURT OF CHHATTISGARH AT BILASPUR ^ DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. M.A. M No. 530/2009 Appellant Non-apDlicant No.3 Respondents Vs Branch Manager, United InSurance Company Limited, Anupama Chowk, Jagdalpur, Distt. Bastar (CG) B. Apparao and others ^»18fl hir Present: Mr. Sanjay Shyam Agrawal, counsel for the appellant. None for the respondents, though served. ORDER (Orall (19th August, 2011) Perl.M. Quddusi.J This appeal has been filed under Section 173 of the Motor Vehides Act, 1988 against the award of the II Additional Motor Accident Claims Tribunal, Durg (in short 'the Tribunal) dated 31 October, 2008 passed in Claim Case No.38/07 by the appellant/insurance company, fastening the liability to pay the amount of compensation on the appellant/insurance company, jointly and severally, along with the owner and the driver of the vehicle. 02) Brief facts of the case are that on 30.8.2006 at about 2.30 pm the applicant-M.D.Thakur/respondent No.3 was coming back from Kanker to Raipur by his vehicle bearing registration No.CG07/3456, which was being driven by his driver. At that time, near Village : Satpara, FCI Godown. PS : Abhanpur, respondent No.1 came from opposite direction by driving Truck bearing registration No. CG 08 ZC/0364 (hereinafter referred to as "the offending vehicle") in a rash and negligent manner and dashed the vehicle of respondent No-3/applicant from wrong side, resulting in grievous injuries to respondent No.S/applicant and his driver. However, on account of the grievous injuries, driver of respondent No.3 namely Gopidas died on the spot and respondent No.S/applicant has sustained permanent disability. r ':^ -ll y/ 2. ^ 03) At the time of accident, respondent No.S/applicant was 50 years, who was earning Rs.15000/- per month by working as Town Inspector. Therefore, he filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "(he Act") for a total compensation of Rs.41,45,000/- for the injuries sustained by him in the accident under various heads. 04) However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, by the impugned award granted a total compensation of Rs.3,82,279/- in favour of respondent No.S/claimant, fastening the liability upon the appellant/insurance company, jointly and severally, along with driver and owner of the offending vehicle. 05) We have heard learned counsel for the appellanVinsurance company, perused the LCR as also the impugned award. 06) Learned counsel for the appellant has submitted that permission under Section 170 of the Act, 1988 has been granted to the appellant and in this appeal, he is challenging the award only in respect of quantum. He has contended that the claims Tribunal has awarded exorbitant amount under various heads without any basis. 07) From perusal of the LCR and the impugned award, it is found that on the basis ofdisability certificate (Ex.P/13), the Tribunal has held that on account of the accident, respondent No.S/claimant had sustained 20% permanent disability, he was admitted in hospital for about 25 days and after being discharged from hospital, he was not in a position to attend his duties for a further period of 4 months. The Tribunal has awarded various amounts under different heads as under: (i) For treatment (ii) For loss of future income (iii) For future treatment (iv) Transportation charges (v) Expenses of Attendant (vi) For pain and suffering 1,46,279 1,76,000 25,000 5,000 5,000 25,000 Total 3,82,279/- 3 -^s^. s v:^ \ ^ 08) The Tribunal on the basis of disability certificate (Ex.P/13) has assessed the permanent disability as 20% but has not assessed the loss of earning capacity. In addition to this, the Tribunal has also not conducted any enquiry in respect of the fact whether 20% disability is with reference to a particular limb or with reference to the whole body. 09) As per provisions of Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994, the Tribunal is duty bound to conduct an enquiry for ascertaining truth for the purpose of awarding just and proper compensation. However, the same has not been done in the present case. At this stage, the observations of Hon'ble the Supreme Court in the matters of Raj K^mar Vs. Ajay Kumar and another, reported in 2010 INDLAW SC 996 : 2010(12) Sca/e 265, in para-11 , are relevant, which are reproduced as under: "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 Tribunaldoes 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 deating 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 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." 10) In view of the facts and circumstances of the case, we are of the opinion that the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this appeal in part and remit the matter back to the ctaims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. Needless to mention that the pariiies 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 conduct an enquiry into the claim for determining the just compensation as provided under Sections 168, 169 of the Act, 1988 and Rule 226 ofthe CG MotorVehicle Rules, 1994. It is made clear that the amount deposited by the appellant/insurance company, if not disbursed, shall be kept in fixed deposit in a nationalized bank for a period of one year and the same ^ shall be subject to the award to be passed afresh by the Tribunal. However, if the amount so deposited has been disbursed, the same shall not be recovered from the claimant but shall be subject to the award to be passed afresh. 11) Parties shall appear before the Tribunal on 22nd September, 2011. 12) LCR shall be sent back to the Tribunal without further delay. 13) No order as to costs. 14) Certified copy as per rules. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge ^f