^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. rONo ^^ /2011 APPELLANT/ ('Applicant') ^cx>-*' \^^ .^'.^'^.^ f^^T^ •^'^3 • RESPONDENTS/ ('Non-ADDlicants^ Pradeep Sharma S/o Shri Chiranjiv Lal Sharma, aged about 43 years, Occupation- nothing at* present, R/o Krishnanagar Atarmuda, Tahsil & Distt.- Raigarh (C.GQ. • VERSUS ; Rajkumar Singh S/o Phagulal Singh, ©ccupation-Owner of the vehicle, R/o Police Chowky, In front of Jute Mill, Tahsil & Distt.- Raigarh (C.G.). (Owner of Mahindra Max Pick-Up Vehicle No. C.G./ 13/D/1091) The Branch Manager, Royal Sundaram Alliance Insurance Company Limited, First Floor Chanwala Chambers, Above U.T.I. Bank, Jeevan Bima Marg, Pandari Distt.- Raipur (C.G.). (Insurer of Mahindra Max Pick-Up Vehicle No. C.G./ 13/D/1091) @^- EJ^I';:'t:jl:3 MISCELLANEOUS APPEAL U/S. 173 OF MOTOR VEHICLE ACT. 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant (Applicant) Respondents/ Non-applicants M.A.MNo. 646/2011 Pradeep Sharma Vs Rajkumar Singh and another fr" ^ Present: Mr. Anil Gulati, counsel for the appellant. None for the respondents, though served. ORDER (Oral) (16th November, 2011) Per I.M. Quddusi. J; List is being revised. The case is called out twice, however, no one is present for the respondents, despite service of notice. Therefore, we proceedex-parte against the respondents. 02. This appeal has been filed by the appellant/injured under Section 173 of the Motor Vehicles Act, 1988 against the order dated 15.4.2011 passed by First Additional Motor Accident Claims Tribunal, Raigarh (in short "the Tribunal"), in Claim Case No.11/2011, dismissing the claim petition filed by the appellanVinjured under Section 163A of the Motor Vehicles Act, 1988 at the preliminary stage. 03. Brief facts of the case are that on 12.6.2009 the appellant, after loading the goods in Mahendra Max Pick-up bearing registration No. CG 13 D 1091, was going to Sakti in thesaid vehicle. When the said vehicle reached near Village - Kulba, P.S. - Dabhra, the tire of rear wheel of the vehicle got punctured. While the appellant was raising the rear wheel with the help of jack, then all of a sudden the jack got slipped and the left leg of the appellant was pressed under the said vehicle, resulting in facture of tibia and fibula bones. Thereafter, the appellant/injured was immediately taken to District Hospital, Raigarh. J1 04. The appellant/injured filed an application under Section 163A of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.8,39,000/- under various heads. However, the said application has been dismissed by the learned Tribunal at the preliminary stage, vide impugned order dated 15.4.2011. 05. Heard learned counsel for the appellant, perused the LCR as also the impugned order. 06. The Tribunal has dismissed the claim petition on the ground that the accident has not taken place during driving of the motor vehicle and as such, the provisions of Section 163A of the Act, 1988 are not applicable in this case. 07. The provisions of Sections 163A and 1$5(1) of the Act, 1988 are liable to be perused, which read as under: "163A. Special provisions as to payment of compensation on structured formula basis. (1) Notwithstanding anything contained in this Act or in any other law for the time^being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.-For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (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 in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official ' Gazette, from time to time amend the Second Schedule." '%! ^-^ "165. Claims Tribunals. - (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so ajising, or both. Explanation. - For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A] 08. In view of the above, the Tribunal has to adjudicate the claim for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicle. Thus, the above quoted provisions would show that the owner of the motor vehicle or the authorized insurer shall be liable to pay compensation in case of death or bodily injury/permanent disablement due to accident arising out of use Qf motor vehicle, as provided in Second Schedule, to the legal heirs or the victim, as the case may be. Therefore, in both the sections i.e. Sections 165 and 163A, the claimant can claim compensation ifthe death or bodily injury/permanent disablement has been caused due to ' accident arising out of use of motor vehicle and hence, for entertaining the claim petitions, it is irrelevant whether the motor vehicle was in running condition or was stationary. 09. On the basis of aforesaid discussions, we are of the opinion that the claim petition under Section 163A.cf the Act, 1988 filed by the appellanVinjured could not be rejected at the preliminary stage and the claimant should have been given an opportunity to adduce evidence in ^support of his case. As per provisions of Sections 168 and 169 of the Act, 1988 and Rule 226 of the CG Motor Vehicle Rules, 1994, the Tribunal is duty bound to conduct an enquiry for ascertaining the truth fpr the purpose of awarding just and proper compensation. hlowever, the same has not been done in the present case. 10. In view of the above, we allow this appeal in part, set aside the impugned order dated 15.4.2011 and femit the matter back to the ^... :.^«^r^, 7 ^ ^l ^, ^^,. Tribunal to decide the claim petition on merits in accordance with law, in the light of observations made above. 11. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, findings shall be given by the Tribunal and award shall be passed. The Tribunal shall also conduct an enquiry into the claim for -determining the just compensation. 12. The appellant/claimant shall appear before the Tribunal on 4th January, 2012. 13.' LCR shall be sent back to the Tribunal without further delay. 14. No order as to costs. 15. Certified copy as per rules. Sd/- I-M.Quddusi Judge Sd/- G. Minhajuddin Judge l.^