^ ^,Y/^----"-• IN THE HIGH COURT QE JUbICATURE AT BILASPUR ^b /200Q <-< ^ MISC.APPEAL Tc1 N0. /2009 APPELLANTS: (Claimants) .-^' ^.^^^^•" c^A^ ^ ^ t^v %• vs RESPONDENTS: fNon-aDDlicants) 1. Smt. Jaya Ben widow of Maganbhai, aged 47 years. 2. Himmat Patel, son of Maganbhai, aged 23 years. 3. Hitesh Patel, son of Maganbhai, aged 21 years. All residents of Gajmara, Balod, District Durg (CG) 1, Ganeshram alias Kamta Prasad, son of _, aged 39 years, Caste-Rajput, resident of near Bilai Mata Mandir, Dhamtari, bistrict Dhamtari (CG) (Driver of the Honda Ford Car number CG05-5697) 2. Ranodan Golchha, son of Askaran Golchha, aged about 60 years, resident of Balak Chowk, Dhamtari, bistrict bhamtari (Owner of the vehicle) 3. Bajaj Allianz General Insurance Company Ltd., Through bivisional Manager, Divisional Office/ Raipur, District Raipur (C.G.) 4. Bharti Ben Patel, wife of Jagdish Bhai Patel, aged 27 ^ 1P" 1. years, resident of K.M. Patel <& Sons, Fafadih, Raipur (CG) 5. Maya Ben Patel, wife of Aditya Kumar, aged 25 years, resident of K.K. Patel <& Sons, Fafadih, Raipur (CG) MISCELLEANOUS APPEAL UNbER SECTION 173 OF MOTOR VEHICLES ACT. 1988 J....^_. f( ^ HIGH COURT OF CHHATTISGARH, BILASPUR DB: APPELLANTS: RESPONDENTS: APPBLLANT: RBSPONDBNTS: HON'BLE I. M. QUDDUSI 8s HON'BLB G. MINHAJUDDIN, JJ M.AfQ.No. 386/2009 Smt Jaya Ben and ofhers Vs. Ganeshram aHas Kaiata Prasad axid otiiers M.Afd.No. 1548/2009 Bajaj AUiaaz Insurance Co. Ltd. Vs. Smt. Jayabeu aad ofhers MISC. APPBALS UNDER SBCTION 173 OF THB MOTOR VEHICLES ACT. 1988 Appearaace: Mr. Indrasen Saliu, counsel for the appeUajits ia M.A(C), No, 586/2009 & respondents 1 to 3 in M.A(C). No. 1548/ 2009. Mr. Abhishek Smlia, counsel for fhe AppeUaat ia M.A(C), 1548/2009 & respondent no.3 in M.A(C). No.586/2009. Mr. Ashish Suraaa, coxinsel for respondent no.5 iii M.A.C. 1548/2009 and respondent no.2 ia M.A.(C). 586/09. Per I.M. QUDDUSI, J, ORAL ORDER (14.09.2011) 1. Siace both. fhese appeals arise piit of the mipugned award dated 20.01.2009 passed by the Addl. Motor Accident Claims Tribunal (FTC) Balod, District Durg ia Clami Case No,72/2007, tiiey are beuig disposed of by fhis coxainon order< M.A(C) No.586/2009 has been filed by the claimaats for enhancemient of amount of conipensation whereas M.A(C), ^ No. 1548/2009 has been filed by the Insuran.ee Company so far as it relates to contdbiitory negligence aad the quantum part to be on higher side. 2. Brief facts of flie case as per the version of fhe claimaats are fhat on 02.04.2008 deceased MagaxL Bhai was coinin.g on his niotorcycle beariag Regn.No.C.G.07-LC/5081 froin Durg to Balod aiid when he reached near Haii.uinan Teniple situated at viUage Kufhrel at about 11,00 a.ni., a car bearing Regn.No,C.0,05/5697 driven by Gaaeshram, non-appUcaat No. 1, ia a rash aiid negUgent m.anner, dashed the xaotorcycle froin opposite direction, as a result of which Magao.bhai sustained iajunes over his head aad otihier parts of fhe body and died. At fhe tiine of fhe accident, fhe deceased was aged about 48 years aad was earaiag Rs. 1,25,000/- per aanuni by dealmg ia stone innies as also Maruti Traders. The claimaats beiiig dependents/legal representatives have ffled claim petition u/s 166 of fhe Motor Vehicles Act for fhe award of total couipensation ofRs,9,53,334/- onvarious heads. 3. Leained clamis Tribunal has held tliat the vehicle beariiig Regn,No.C,G.05/5697, which was driven by Non-appUcaD-t no, 1 ia a rash aad negHgent inanner dashed fhe niotorcycle of fhe deceased, as a result of which, he died; there was no contributory negUgence on the part of the deceased; fhere was no breach of conditions of tibie iasurance poUcy by non- appUcants no.l & 2 and fhe claiman.ts are entiUed to receive a total compensation of Rs,4,70,000/- from the non-appUcants joiiitly and severally, .,^.^^^^ ^^y^: 1 ll^i;-',' 1 ¥.. .^oc^ ••^^^^' ^- 4. We have heard learried counsel for fhe parties and have also gone fhrough fhe records of fhe Tribunal. S. Learaed coxiiisel for fhe appeUaxit Insuraxice Coinpaay has submitted fhat fhere was head-ou-coUision bet\veen the two vehicles but witliout sunimLoning the spot inap prepared by fhe Investigating Ofiicer aad ofher poUce records, issue of conti-ibutory negUgence has been decided in favour of fhe claimaiits holduig fhat fhere was no coutributo^ negMgence, 6. The Tribunal has held tliat his speed was ver^r slow and he was on his own side and the otih.er offending vehicle coUided witih. it comiug on fhe wrong side, However, on perusal of the records, we have also found fh.at the issue of contributory negUgence has not been decided properly aad ftie real facts have not conie out. If fhere was head on coUision it should have been considered as to whefher fhere was negUgence on tlie part of fhe deceased who himsetf was driviag tlie inotorbike, 7. Learaed counsel for fhe Insuraace Company has reUed upon the decision offhe Supreme Court ia APSRTC -Vs' Hemlata and others {2008} 6 8CC 767 in which it has been held that to detertmiie fhe question as to who contaributed to the happennig of the accident, it becoines relevaat to ascertam who was driviag his vehicle negHgenUy aad rashly aad in case both. were so doiag who was inore responsible for the accident aad who of tlie twro had fhe last opportunity to avoid fhe accident. In case fhe damages are to be appordoned, it niust also be found that fhe plaiatifFs fault was one offhe caiises of :^-i-"5^.., B... /' " 1 ^S^'^ ^ 8. 9. fhe damage aiid once that condition is futfiUed fhe damages have to be apportionedaccordmg to ftie apportioned share of fhe responsibility. If fhe negUgence on tiie plaintiJBTs part has also contdbuted to damage fhis caanot be ignorcd m assessiag fhe damages, He caa be found guUty ofcontributory negligence if he ought to have foreseen that if he did not act as a reasonable, reasoned niaa, he niight hunself be hit aad he inust take iato account fhe possibiUty of ofhers beiag careless. Takmg iato account the evidence of the witaesses it caa certamly be said ttiat fhere was contiibutory negUgence, The propordon caa be fixed at 1:4. Further ia fhe said case, while refeniag to fhe decision m T.0, Anthony Vs. Karvarnan and others (2008) 3 SCC 748, Hon'ble the Supreine Court has reiterated that ia case of coinposite negligence, each wrong doer is joiatiy aad severatly Uable to fhe claimaats for paynient of entire damages aad the claimants have fhe choice of proceediag agaiast all or any of fheux, In view of fhe above discussion, we are of the opiaion that the Tribunal has not conducted any enquiry to ascertaia fhe trufh regardiag contdbutory negUgence as provided m sections 168 8& 169 of the Motor Vehicles Act and Rule 226 of fhe C.G. Motor Vehicles Rules, 1994. Therefore, fhe raatter requires reconsideration at tlie end of fhe Tribunal, The Insuraace Compaay has also challenged the quantum part to be excessive whereas the clamiaats have chaUeuged the quaatuni part aad prayed for enhaiicenient, but as we are ofthe opiiiion tiiat fhe inatter requires reconsideration at fhe ;^:- 1;< ^:?k. - * ii ':;-:S.SI&, end of the Tribunal, we are not incliaed to decide fhe quatitiim. fixed by fhe Tribunal at fhis stage. However, it woiild be open for tlie Insuraace Corapaay as well as fhe Cladiiiaats to press the quaatuin before the Tribunal. 10. Therefore, We allow M.A(C). No. 1548/2009 ia part aad remit fhe niatters back to tlie Tribunal for decision afresh io. the Ught offhe observations niade above. 11. Needless to inention fhat fhe parties shall be aUowed to amend tlie pleadiags, adduce fartlier evidence, file ftie docuraents or get fhe docuiaents verified etc aad thereafter fhe decision shaU be tsken afresh at fhe earUest, The parties shaU appear before the Tribunal on 20th October, 2011. The records of fhe Tribunal shall be sent back without furtlier delay, 12. In the result, M.A(C). No. 1548/2009 aUowed ia part and M.A(C). No.586/2009 staads disposed of. No onler as to cost(s). Sd/- LM.Quddusi Judge Sd/- G. Miuhajuddin Judge Rao