Page Ho^ BEFORE THE HONOURABLE HIGH COURT OF CHHATTISGARI±AT BILASPUR MISC. APPEAL N0. ^C7^ OF 2006 APPELLANTS CLAIMANTS 1. 2/ 3. > 5. 6/ ^^ Rajeshwar Singh, Son of Shri Shiv Prasad Singh, aged about 58 years; Shiv Dulari Devi, Wife of Shri Rajeshwar Singh, aged about 53 years; Gaura Devi, Wife of Late Shri Kamlesh Kumar Singh, aged about 33 years; Prashant Singh, Son of Late Shri Kamelsh Kumar Singh, aged about 11 years; Ku. Divya Singh D/o Late Shri Kamlesh Kumar Singh, aged about 13 years; Uma Devi Wife of Late Shri Kamlesh Kumar Singh, aged about 28 years; Ku. Kamna Singh, D/o Late Shri Kamlesh Kumar Singh, aged about 5 years; Appellant No.4 and 5 minor, through natural guardian mother Gaura Devi Wife of Late Shri Kamlesh Kumar Singh, and Appellant No.7 (Since wrongly shown 6) minor, through natural guardian mother Uma Devi, Wife of Late Shri Kahnlesh Kumar Singh. Page No.. ®«^ RESPONDENTS NON-APPLICANTS 8. Ku. Priya Singh D/o Late Shri ^ Kamlesh Kumar Singh, aged about 4 years, through natural guardian mother Uma Devi Wife of Late Shri Kamlesh Kumar Singh; All resident of Village Soan Tarayee, Police Station and Tahsil Seetapur, District Surguja (C.G.). VERSUS 1. Shiv Nath, Son of Shri Yogendra Jha; aged about 33 years, Resident of Madhuvani Bihar; Presently residing at House No. 59/3, King's Road Gola Bari Haawra, West Bengal. Surendra Paal Singh, Son of Shri ^ Indrajeet Singh, Resident of 139 Narbel Daaga Main Road Calcutta (Kolkata) 11, Calcutta (Kolkata). 3^-^ New India Insurance Company ^% -imited, New India Insurance Building Mahatma Gandhi Maarg Post Mumbai-400001, Bombai. A MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT. 1988 s ^w-.-^.j ^^••-. / w ^r^. HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal No.692 of 2006 Appellants versus Respondents Rajeshwar Singh and others Shiv Nath and others Present: ShrrR.N.Jha, counsel for the appellants. Shri Sourabh Sharma, counsel for respondent No.3. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORAL ORDER (Passed on 5th January, 2011) Per I.M. Quddusi. J.: Heard. 2. This appeal has been filed by the claimants challenging the award dated 12-1-2006 passed bythe 1stAdditional Motor Accidents Claims Tribunal, Ambikapur in Claim Case No.60/2003. 3. Facts of the case, in brief, are that on the date of accident, i.e., 23-5-2003, one Kamlesh Kumar along with Gaura Devi were coming home in Village Sontarai in a jeep bearing registration No.MP- 27B/3041. The jeep was being driven by Kamlesh Kumar. When the jeep was being driven on a public road near Sitapur Police Station, a truck bearing registration No.WB-33/2001, which was being driven by Shiv Nath rashly and negligently, dashed the jeep. Kamlesh Kumar, driver of the jeep suffered serious injuries on his -CT /r/"^ \ j'la^l '^.te^ person in the accident. He died during treatment in the hospital. The claimants preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.9,58,000/-. 4 . The Claims Tribunal has dismissed the claim of the claimants and has awarded compensation to the claimants only under no fault liability. 5. The claim of the claimants has been dismissed mainly on the ground that the deceased was not having a valid and effective driving licence but the Claims Tribunal, in paragraph 12 of the award, has made observation that the burden to prove that the deceased was having a valid and effective driving licence was on the claimants. This is not correct. The burden to prove that the deceased driver was not having a valid and effective driving licence was on the insurance company or the owner, as the case may be. 6. Further, learned counsel appearing for the appellants/claimants has moved an application under Order 41 Rule 27 of the Code of Civil Procedure with a prayer to take on record the additional evidence, i.e., the driving licence ofthe deceased. 7. We allow the application under Order 41 Rule 27 of the Code of Civil Procedure. The copy of the driving licence shall form part of the record. 8. However, since the learned Claims Tribunal has committed manifest error of law in deciding the claim petition as mentioned .^•"i^^,. .. "6^ y:.^- j <. ^.. J/ ^.::K-iy h» ^ ^' above, we are of the opinion that the matter may be remitted back to the Claims Tribunal for decision afresh. 9. In the result, the impugned award is set aside and the miscellaneous appeal is allowed in part. The matter is remitted back to the Claims Tribunal for decision afresh. The parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified etc. and thereafter the decision shall be taken afresh as early as possible. It is, however, directed that the amount which has already been deposited by the insurance company shall not be allowed to be withdrawn by the claimants and it shall remain in deposit till the decision afresh. The parties, who are represented before this Court today, may appear before the Claims Tribunalon 21st Februarv. 2011. There shall be no order as to costs. Sd/- I.M. Quddusi Judge Sd/- Prashant Kumar Mishra Judge Gopal