-28 HIGH COURT OF CHHAmSGARH AT BILASPUR DIVISIONBENCH CORAM: HON'BLE MR. T.P. SHARMA 6& HON'BLE MR. R. L. JHANWAR. JJ. M.A. (C.l N0. 485/2009 APPELLANT RESPQNDENTS: VERSUS 1) 2) Harenpal Aged 55 years S/o Shri Gopalpal R/o Santoshi Nagar, Bhairav Nagar, In front of Tandon Kirana Store, Raipur, Tahsil & District Raipur (C.G.). Shankar Dubey S/o Kailash Dubey, Occupation Tempo Driver, R/o Village Umariya Mandir Hasoud, P.S. Mandir Hasoud, Tahsil 85 District Raipur (C.G.). Samir Samant S/o Radha Nath Samant R/o Santoshi Nagar, Bhairav Nagar, In front of Tandon Kirana Store, Raipur, Tahsil & District Raipur (C.G.). The Oriental Insurance Company Limited, Through Divisional Manager, Division Office No. 1, Kachahari Chowk, Jail Road Raipur (C.G.). MEMO OF APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT,1988. Present:- Shri S.K. Guha, Advocate for the appellant. Shri B.N. Nande, Advocate on behalfof Shri A.K. Athaley, Advocate for the respbndent No. 3. 3) ORAL-JUDGEMENT (Passedon 15/07/2010) The following iudgment of the Court was passed by T.P* Sharma, J:- 1. Challenge in this appeal is to the award dated 4/9/2008 passed by First Additional Motor Accident Claims Tribunal, Raipur (in short 'the Tribunal') in claim case No, 13/2008 whereby learned m r ^ tribunal has dismissed the claim petition on the ground that respondent No. 1 is driver was not negligent at the time of motor accident. 2. Award is challenged on the groun{i that while dismissing the claim petition learned tribunal has not considered the evidence of the appellant and thereby committed an illegality. ; 3. Brief facts necessary for disposal of this appeal is as per pleading and admitted facts appellant was sitting in tempo No. CG- 04/J/4723 on 20/4/07, which was driven by respondent No. 1, owned by the respondent No. 2 and was insured with respondent N0. 3, some unknown vehicle dashed the tempo and caused accident resulted into serious injury to the appellant. First Information Report was lodged. Medical treatment was given to the appellant. Appellant received serious injuries including fracture and permanent disability. Present appellant has filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 for compensation of Rs. 17,00,OOO/- on account of permanent disability. Respondents No. 1 & 2 have admitted the allegation of accident and injury caused to the appellant and specifically alleged that driver of alleged unknown vehicle was liable for such accident. 4. After affording an opportunity of hearing to the parties learned Tribunal dismissed the claim on the ground that respondent No. 1 was not liable for accident and driver of unknown vehicle was liable for accident. ^o 5. Shri S.K. Guha, Advocate for the appellant and Shri B.N. Nande, Advocate on behalf of Shri A.K. Athaley, Advocate for the respondent No. 3 are heard. 6. Award impugned and record perused. 7. Learned counsel for the appellant vehemently argued that evidence of appellant himself is sufficient for drawing an inference that respondent No. 1 was negligent in driving the vehicle resulted into an accident. \ 8. On the other hand, learned counsel for the respondent No. 3 opposed the appeal and submits that evidence adduced on behalf of the appellant is not sufficient for drawing an inference that respondent No. 1 was negligent in driving the vehicle. 9. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence available on record. In the present case injured witness i.e. appellant who was sitting in tempo No. CG-04/J/4723 at the time ofaccident has specifically deposed that respondent No. 1 was driving the vehicle, one unknown vehicle dashed the tempo and caused accident. He has further deposed that respondent No. 1 was driving the tempo rashly and negligently. Paras -5 & 6 of his cross examination he has speciflcally admitted that some unknown vehicle has dashed the tempo and caused accident, if we examined the evidence of PW1 Harenpal injured and sole eye witness who was sitting in the tempo then it would be clear that respondent No. 1 was driving the tempo rashly and negligently and some unknown vehicle dashed the tempo which was driven by respondent No. 1. It clearly shows that respondent No. 1 and driver of offending 1 -lwfil .1 ^-J/ ^ unknown vehicle both were negligent and this is a case of contributory negligent for which respondent are liable for compensation up to some extent. While dismissing the petition Court below has not considered the evidence of sole eye witness and injured witness appellant and thereby committed an illegality. 10. For the foregoing reasons, this appeal is allowed. Award impugned is hereby set aside. Court below is directed to determine the claim and liability of the respondents. Considering the percentage of contributoiy negligent and decide the claim afresh. 11. Parties are directed to present before the Claims Tribunal on 26/8/2010 for further progress ofthe case. 12. No order as to costs. Sd/- T-P. Sharma Judge Sd/- R.L. Jhanwar Judge r-'i