IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) M.A.fC V No 1^^^/2007 APPELLANTS Claimants ;.l- 2. ...-3 4-. fo,?r^< '^-^^ ^"'s-^ > ^- -::^ •-:^-/}' ^^^ ^v RESPONDENTS :1 ^ Smt. Geeta Bai, W/o, Late Santram Satnami, aged about 42 years Kanhaiya Lal, S/o. Late Santram Satnami, aged about 22 years Balram, S/o. Late Santram Satnami, aged about 21 years Ku. Ratna, D/o. Late Santram Satnami, aged about 19 years Ku. Lalita, D/o. Late Santram Satnami, aged about 17 years Sanjay Kumar, S/o. Late Santram Satnami,. aged about 15 years No.5 & 6 minors through natural guardian mother appellant No.l, All R/o. Village-Kapil Nagar Sarkanda, Through : Chitrabhan Singh Chandra, S/o. Late Ganeshram Chandra, Kapil Nagar, P.S. Sarkanda, Tahsil and District Bilaspur (C.G.) VERSUS Ramadhar, S/o. Dataram Satnami, aged about 50 years, R/o. Through Rajesh Sharma, Behind Sharma Printing, Press, Manendragarh, P.S. & Tahsii Manendragarh, District Koriya (C.G.) 2. The Oriental Insurance Company Limited, Through : Office Manendragarh Road Near Ambedkar Chowk, Ambikapur, Sarguja (C.G.), Through : The Oriental Insurance Company Limited, .ranch Office, Bilaspur, Through Divisional Manager, Opposite High Court, Bilaspur r^-. V-. HI6H COURT OF CHH/tTTISSARH AT BIL4SPUR &IVISION BENCH: HON'BLE MR. I.M.QUbDUSI & HON'BLE MK.6ULAM MINHAJUb&IN. JJ ApDellants Respondents M.A. [Cl No. 1257/2007 Smt. Seeta Bai & others Vs Ramadhar & others Present: f^r. Snutam Khetrapal, Advocate for the appellants. None for the respondent No.l though served. Mr. H.P. Agarwal, Advocate for the respondent No.2. OROER (Orol) (18th August. 2011) LM. Quddusi. J; 1. Heard. 2. The appellants-claimonts have filed this ntiscellaneous appeal against the award cktted 26.02.2007 possed by the learned 8th Additional Motor Accidents Cktims Tribunal, FTC, Bilaspur (for short 'the Claims Tribunal') in < Claim Case No.48A)6. 3. Facts of the ccise, in brief, are that on 11.4.2003 deceased Santram Satnami along with one Vinod was 90^9 to Kudargarh for devi darshan on the motorcycle having no number plate. When they reached near Bhaiyathan road, due to potholed road, the driver lost control over the motorcycle ond fell down in the pit as a result the deceased grievous injuries on his body and died on 14.3.2003 in the hospital during treatment. The claimants filed claim application under Section 163A of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') seeking compensation of Rs.4,11,000/- on the ground that they wie.re. dependent on the deceosed, who was sole earning member in the family, and due to his death they have suffered loss of income. 4. The Claims Tribunal vide impugned award dismissed the claim application of the claimants on the 9round that accident in question had occurred due to negligence of the deceased himself. - / ..•^.^•^a^Sssi..-.:^ ,^:^s^ /S ii, ._ 'sa & ms!S!!SSS&. S VWg3SS^ | '•k .. y ^ 'tes'^."?7 tee..._^.«a*^ I"'i^E's''&": 5. We have heard learned counsel for the parties. We have also perused the records of the Claims Tribunal. 6. Learned counsel for the appellant has submitted that the witness namely Anil Kumar Sao, Administrative Officer of the respondent-Insuronce Company appeared on behalf of the insurance company and stated in his statement that policy of the vehicle-in-question was a comprehensive policy ond as such, risk of the driver is covered under the policy and therefore, the claim petition should not have been rejected. He hos further submitted that the appellants should not have been denied legitimate compensation as Section 163-A is a special provision where there is no necessit/ to plead or" establish negligence or wrongful act or default and thus, the Claims Tribunal has comnnitted an error in rejecting the claim of the claimants. 7. On the other hand, learned counsel for the respondent-Insurance Company has supported the impugned award. 8. We haye perused the record and found that insurance policy of the vehicle in question is limited to liability for theft only for Zone B motor-cycle and thus the policy do not support the statement of said Anil Sao, Administrative Officer of respondent Insuronce Company. Further, the claim hds been dismissed on the ground that the deceased, who wos driving the motorcycle, himself vws responsibte for the accident, but since the claim has been filed under Section 163-A of the Act, 1988 in which following provision has been made in sub-section (2), we are of the opinion that the claim petition ought not to have been dismissed by the Claims Tribunal on the ground of negligence of the yictim; "(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement ih respect of which the claim has been made was due to any wrongful act or neglect or defoult of the owner of the vehicle or vehicles concerned or of any other person." ''•"•^"c\, 9. Further, in the matter of of Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd.. Baroda reported in (2004) 5 SCC 385 also the Hon'ble Supreme Court has held in Para-66 thus:- "66. We moy notice that Section 167 of the Act provides that where death of, or bodiiy injury to, ouiy person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under <my other provisions of this Act" or "any other law ' or otherwise . In Section 163-A, the expression notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show tho* Parliament intended to inserta non obstante clause of wide nature whichwould mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." 10.In view of the above, we feel that the matter requires reconsideration at the end of the Claims Tribunal. 'l. Accordingly, the appeal is partly allowed, impugned order is set aside and the matter is pemitted back to the Claims Tribunal for decision afresh. The Claims Tribunal shall formulate the issues involved in the matt-er afresh and shall also consider the law laid down by the Hon'ble Supreme Court while deciding the claim petition and making the award. Needless to mention that the Claims Tribunal shall provide opporlunity to the parties to adduce further evidence, if any, or to recall the witnesses, amend the pleadings or to file documents or verify the documents already filed and then decide the claim petition after conducting necessary enquiry as provided under Sections 168 & 169 of the Act, 1988 and Rules 226 of tiie Motor Vehicles Rules. The parties are directed to appear before the Claims Tribunal concerned on 27t^ SeDtember. 2011- 12-The Registry is directed to transmit record of the Claims Tr-ibunal ^ncemedwithout further delay. No order as to costs. ^ Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge