.1 £>• HIGH COURT OF CHHATTISGARH AT BILASPU Sjngie5Anch : HQn'bleShri DjllB Raosaheb ^L Miscellaneous Appeal !C.) No.332 of 2006 daimants 1. 2. 3. versus Respondents Non-ApDlicants Smt. Kunti Bai, W/o Rewa Ram Sahu, aged about 40 years Rewa Ram Sahu, S/o Late Shyam Lal Sahu, aged about 45 years Shankar Lai Sahu, S/o Rewa Ram, aged about 16 years Appeilant No.3 is represented by Isga! guardian mother Smt. Kunti Bai. All resident ofUrala Basti, Post & P.S. Urala, Tah. & Distt. Raipur (C.G.) Raj Kumar @ Anil Kumar, S/o Jagan Singh, R?p N.E.C. Co. Chakeri Mod, P.S. Chakeri, Kanpur Nagar (U.P.) Nav/yug Engineering Co. Ltd. Through Managing Director, Divisional Office, Wo G.T. Chakeri Mod, Post Ahiwara, P.S. Chakeri Kanpur (U.P.) The New India Insurance Co. Ltd., Branch Office Vishakhapatnam Field,. Through Divisional Manager, Divisional Office No.1, Kachahari Chowk, Jail Road, Raipur (C.G.) ARDeal under Sectipn 173 ofthe MotorVehicles Act Present: Shri S.C.Verma, counsei for the appellants. Shri Ajay Mishra, coynsel for respondent No.3. ORAL ORDER (Passed on this 08th day-of July, 2008) Respondent No.1 could not be seroed due to incomplete address and process of respondent No.2 has been returned with an endorsement that his office has been closed. Learned counsei for the ^" ^s 1 i gs appellants prays fpr dispensing with service on respondents No.1 and 2 on the ground that both these respondents did not contest the application for compensation under Section 166 of the Motor Vehicles Act (henceforth 'the Act') and were proceeded ex parte by the Xllith Additional IVIotor Accidents Ciaims Tribunal (F.T.C.), Raipur (henceforth 'ths tribunal'). Prayer is not opposed by iearned counsei for respondent No.S/insurer. Service on respondents No.1 and 2 is dispensed with. (2) The appea! is finaily heard today. (3) The appellants/claimants are aggrieved by an award dated 31- 08-2006 passed by the tribunal in Claim Case No.40/2005 whereby the application for compensation was dismissed by the fribunal on failure of the ctaimants to prove culpable negligence on the part of Raj Kumar, i.e., the driver of Miliar No.UP78/A.N.-2676 (henceforth 'the millar'). &. (4) Brief facts are that on 20-10-2004 the deceased Ghanaram was working as a conductor in the millar driven by Raj Kumar alias Anil Kumar. At about 2.30 P.M., Raj Kumar parked the millarby the side of the road and went for iunch. The deceased Ghanaram got underneath the millar for having a siesta. Not knowing this fact, Raj Kumar started the millar thereby crushing Ghanaram to death underneath the, millar. The claimants, i.e., the parents and the minor brother ofthe deceased fiied an apptication under Section 166 of the Act for compensation. On 21-08-2006, the tribunai recorded the evidence of Smt. Kunti Bai, the mother of the deceased and granted adjournment for adducing further evidence. On the next date, i.e., 25-08-2006, the matter was adjourned as judicial work was suspended after condo!ence meeting. On the next date, i.e., 29-08-2006, the counsel for the claimants ciosed the ^^y'-f^ 1 i,. ,v y , f5"'"..*1 '<;"-A-.-1--^" •5 evidence for the claimants. The matter was fixed for final arguments. On 30-08-2006, the tribunal noticed that issues have not been framed. !t framed issues. The tribunal without further enquiring from the claimants as to whether they desire to lead any other evidence, heard final arguments and passed the award on 31-08-2006. (5) Shri S.C.Verma, tearned counsel for the appellants/claimants urged that the claimants were very poor and illiterate persons and an opportunity ought to have been granted to them to adduce evidence for proving culpable negligence on the part of Raj Kumar, i.e., the driver of the mil!ar. Learned counsel for the appeltants/claimants prayed that the impugned award be set aside and the matter be remanded to the tribunal with a direction to give opportunity to the claimants to lead evidence for proving the culpable negligence of the driver. (6) Shri Ajay Mishra, learned counsel for respondent No.3/insurer does not oppose the prayer. (7) Having considered the submission of the learned counsel for the appellants/claimants, ] am of the considered opinion that in the interest of doing complete justice between the parties, it is a frt case in which an opportunity should be granted to the appellants/claimants for adducing evidence for proving culpable negligence of the driver of the millar which resulted in death of Ghanaram. After framingof issues, the tribunal ought to have seen that no evidence whatsoever had been adduced by the claimants for proving culpable negiigence of the driver of the millar and the tribunai, therefore, ought to have granted an opportunity to the claimants to lead evidence in that regard. In this view of the matter, the appeal deserves to be allowed. J''-2"'-^:.. Jl ''~3E^i ^ i A ~~y^ ^;.,. ',i;a-'/'?<!?i "'"^&saie'''' (8) In the result, the appeal is allowed. The impugned award dated 31-08-20W is set aside. The tribunal shafl give a reasonable opportunity to the claimants to adduce evidence, both orat as wel! as documentary to prove culpable negligence of the driver of the millar in causing death of Ghanaram. Opportunity to adduce evidence in rebuttal, if any shall a!so be given to the insurer. Learned counsel for the appe!!ants/c!aimants as also for the insurer are directed to appear before the tribuna! on 9 of September, 2008. Sd/- Dilip Raosaheb Deshmukh Judge Gopai 1