cr( IN THE HIGH COUR_T_OE^UDICATURE AT BILASPUR ^^1- CHHATTISGARH M.A. (0 No. IOCL^ / 2009 itssSion Sansk APPELLANT NON-APPLICANT N0. 3 ^•^••••^'^K^^. -'p^*M SWUH^^2^^ /" RESPONDENT/ APPLICANT N0. 1 RESPONDENT/ APPLICANT N0. 2 RESPONDENT/ APPLICANT N0. 3 RESPONDENT/ APPUCANT N0. 4 RESPONDENT/ APPLICANT N0. 5 RESPONDENT/ APPUCANT N0. 6 RESPONDENT/ NON-APPLICANT N0. 1 RESPONDENT/ NON-APPLICANT N0. 2 The Oriental Insurance Company Limited, Through : Divisional Manager, Divisional Office, Malviya Nagar, Durg (C.G.) VERSUS :^-1. Mehtarin Bai W/o Late Barsati Lal Verma, aged about 30 years 2. Narsing S/o Late Barsati Lal Verma aged about 11 years 3. Gajendra S/o Late Barsati Lal Verma aged about 09 years 4. Ku. Dakeshwari D/o Late Barsati Lal Verma aged about 7 years Respondent no. 2 to 4 are minor through :- Mother Mehtarin Bai ^ 5. Dal Singh Verma S/o Shri Bhukhan Singh Verma, aged about 50 years ^- 6. Smt. Bhagmati Verma W/o Shri Dal Singh Verma, aged about49 years All R/o Baiji, P.S. Bemetara Tah. Bemetara Disst. Durg (CG). ^r- 7. Abdul Raseed.S/o Abdul Vahid R/o 9 Niyamatpura, 12 Mahal, S. B. A. D., Shahjahanabad Bhopal (MP) 8. Prem Singh S/o Shri Jahar Singh, HNO 7311, Shakti Niketan, TT Nagar Bhopal (MP) •WE &s^"l^(Eg^^" '^-.EEE-:'- -• SBa^ui^t<®lKiEiUUINy81!W^iil»^na IVIISC APPEAL (CLAIIVI) UNDER SECTION 173 OF MOTOR VEHICLE ACT, 1988 HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'bte Shri I.M. Ouddusi, J. & Hon'bte Shri Prashant Kumar Mishre. .1. MAtClNo. 1097 of 2009 APPELLANT The Oriaital InsuranceCQmpanyLimlted. Versus RESPONDENTS Mehtarin Bai and othere. Shri Manish Upadhyay, counsd for the appellant. Shri SudhirVerma, counselfor respondents No. 1 to 6. Foltowing oral order I. M. Quddusi. J. ORAI.ORDER (05W4Q011) of the Coyrt was (assed by Thisappeal hasNeBlpNaried.lwtheOrierrtaI InsMrance C^npany Limited chaltenninfl ttie award dated3(]W)4i2009 passal t»ythe AddMjonal Motor Acctelent Claims Tribunal, Bem^ira. District Durg (C.G.) In Clahn CaseNo. 71/2008. (2) Brief facts of ttie case, as per the vereion <rf c|ilmarts, are U^ft on 06/09/2008 at about 5.15p.m, deceased Barsafitel alftl^l vnttl his aunty Chitrarekha and sistere were going to BCTnetara In his Hero Honda M<rtorcycle. Truck bearing regi^raffion No. M.P. 04 hE 0112 entormg the Nafional Highway from petrol pump which was driven rashfy and neoligently by non-awlicant No.2 dsshed Barssrtilal, as a resutt of whteh he died on the sp<rtand hisaunty andsi^rs received injuri^. De^^ aged about 32 yeare and he used to eam Rs.500/- per day from agricultural work wfth tte help of tractor. Claimante teve claimed compengalion of Rs. 52,60,000/-. £ ^^-^' ;^ ^ 't^ffK.W .^-ff ':vsy ^/ ^ (3) The Claims Tribunal has allowed compensatton of Rs.4,25,50W- and has tastened the liability to safisly the award on the Insurance Company. (4) Leamed counsel for the appellant has argued thatflift decgased was driving the motorcyde along with three other pHlton ridere and ftirther ttiat Uie present Is a case of coniston b^ween the nfK!itoK^cte..iancl truck, thefefbre firstly the deceas«l Wmseff was responsibte forcai^ng tt»e accklent and secondly ft may be a case of contributory, mgluence. However, the Tribuna) has rK^consideredthisaspect afthe matter,and has UlegaHy fastened the liabitity on tbe Insurance Company. (5) We have seen the ewdence .avatlabte cmrw<ffd,M piffion riders havenot beenexamined In the matter. In thereply Bted twtfre Insurance Company it Is categortcalfy ^ated in para 6 thereof jhat four persons were riding themotorcycle. Hcwever.this aspect has nrt been considered by the Claims Tribunal and it appears that prc^r enciyiiy has not been conducted. (Q Sectfon 166(1) <rftt©M<dwVehiclesAct,19e8(forshort'B»eAct') provkles thatan apprKafion for compensatKMi ansing out <rf,an acwtent pf the nature spedfied in sub-secUon (1) of sectfon 165 may be made by the (iersons mentioned ttierein and SecUon 168 provktes that on receipt of an application Tor compensaUon made under Sedion 166, the Claims Tribunal shatt, after givinfl noUce <rf the applicafion to the insurer and atter giving the parties (including the insurei) an oRportunfty of being heard. hold an inquHy into the claim or, as the case may be, each of the dairns and, subject to the provisions of SecUon 162 may make an award d^ermirtng the amount of compensaUon which appMrs it to N just and spe^fyirg ths pwson or persons to whom compensaBon shgll be paid and in makjog the sw»rdtte Claims Trtt>unal shall specNy theamount viAich steill lie paldtiytte insurftr SS?:5^3r?^S '^ ...•-•'"ivs'\-~~. ''•: ..^ '"^, 'S or owner or driver ofthe vehicte involved In Ihe accident wbysff^sinycf ttiem, as Ihe case may be. (7) Rule 226 of the Mtrtor Vehicte Rules, 1%(4 (for s(»rt'thB Rtd^') provkfes fbr obtaining of informatton andl docuinmts nwassary for awarding compensajBon underSecli<Mi40.|tspecifiral|yi»!(W(te?thatthe Claims Tribunal shall obtain whsdever information and documente vyhfch may to found necessary from thePolree, Mediral and vSw autborities and proceed to award ttie claim wAether the parties whci were gn^n n<rtc®, appear or not, on the appointed date, (8) In the case of Raj Kumar vs. Ajay Kumai aid an^ttiw repflrted in 2010 (12) Scate the Hon'bte Apex Court hasheld jn pacs^raph 11 as under:- '11. The Tribunal should not be a sitent^>ectatiM"»rtien mediral evidence is tendered in regard to the injuries iand their effect, in particular the extent of permanent dis.ablljty. S^rons 168 and 169 of the Act make it evictentthat the Tribunal does not functfon as a neutral umpire as in a dvil suit, but as an active exptorer and seeker of truth wt»is required to 'h(^d an enqufry into the claim' for drtermining the 'ju^ wmpensatiori'. The Tribunal should therefore take an acUve rote to ascertaln the true and correct position so that it can assess e 'just compensafion'. The Trawnal should therefore take an acfive rote to ascertain the true and correct positton so that it can assessthe 'Justcompensation'." (9) In view of Uie above legal posiUon ft was the duty of the Tribunal to conduct proper enquiry by summonng the pilton riders for examinatron so that the exact manner In whteh the accident had taken pfaue can be enquired, therefore we alkw this appeal in part. get aside the impugned award and remit the matter back to Uie Tribunal to deddettie claim petitk?n afresh attercQnducting properenqulry, 1 ' 'j,/-2S'S^[^^,;; •:•--;•'. ^ (10) Needless to menConthat the parties shall be allowed to amend the pleadings. adduce further evidence, fite ctocuments or te get ttie documents verified ete. and ttiereafter daim peUtkm shall be deGMed on merits afresh. (11) The partiesshall appearbefore the Tribunalon22ndJune, 2011. (12) Lower Court Record be sent baclc forthwith. Sd/- [ I.M.Quddusi Judge Prashant Kumar Mishra Judge f^v s^'