ONLE LM. DDUSI PRHAN R ISHR, J, M. MC} No. 664 or 2006 DB: irar, ge about 0 years, r Nmalk ad 3 /o Napara, Jal, ..S. Jl, Disut urg (6) ka mu P amu ic D (3. Vs. MISC. APPEAL UIS 173 OF THE MOTOR VEHIGLES ACT, 1988 HIGH COURT OF CHHATTISGARH BILASPUR H’E QU & AST KUMA MA J RESPONDENN 1. Smt. Anita Devi, Widow of Lats Kamlesh Gupta, aged about 25 ycars 2. Ku'. Swati Gupta, Daughter of'Latc Kamlesh Gypta, aged about 5 years 3. Ku. ‘Kajal Gupta, d/o Late Kamlzsh Gupta, aged about 2 ygars 6s six months. 4. Rishabh Gupta, s/o Late Kamleah Gupta, aged about 1 1 months, Allminomuomzto4thmughtheir mother respondent no.1 Smt. Anita Devi, R/o Roshni Ekctricals Jalebi Chmk, Camp-1, Bhiiai Nagér, Tah. & Distt. Dung (C.G). 5. Sahdeo Pmsad, s/o Dwan'ka Prasad Gupta, aged about 70 years, R/o Roshni Electricals, Jalebi Chowk, Camp-1, . Bhilai Nagar, Tah & District Durg (C.G). 6. Sher Singh, s/o Kundan Singh, caste Gond, aged about 45 years, R/o near-by Hannman Mandir, Paanch Rasta, Conuactor Colony, Supela, Bhilai Nagar, Tahsil and Distu'ct Durg (C.G) - Truck No.C.G.O7—ZCI3$51 D117“. 7. Gmudeep Singh, S/o Rawel Singh Bhatja, ‘R/o Pulgaon Naka, Durg, Distt. Durg (CG) (Truck owner) 8. National Insuxance Company Ltd. ‘ Kamthj Line, 'Rajnandgaon (CG) - (Policy - No.320902/31/[03/ 6700609) 9. Tikendra Kumar Sahu, son of Patimm Sahu, aged about 30 years, r/o Nakapara, Jamul, Tabail & District Durg (C.G)‘ (Vehick Sumo No. C.G.07 Z.C./5013 Driver) APPEARANCE: Mr. Rishi Rahul Soni an Mr. Jimndm Gupta, counsel for the appellant. Mr. Raj Awasthy, counsel for mspondent no.8] National Insmance Company Ltd. ORDER mam.) (21.02.201 1) ye: mm. gunmm, J. Thia appeal has been Eed by the owner of Tata Sumo against the impugned award dated 23.06.2006 passed by the XI Add]. Motor Accident Claims Tribunal (ETC), Durg in Claim Case No.24] 2005 by whirh 50% of the compensation has been ordered to be home by the appellant. 2. Brief facts of the case as per the version of claimants ale that on 03.02.2004, Satyendra Rai was driving his Motorcycle and deceased Kamlesh Gupta was sifting as pillion rider. They were going towards Nandini by‘the said motorcycle on left side. On the way at about 12.30 p.m., one Tata Sumo bearing Registration No.07-Z.G/ 5913 was standing in front of Manish. Cassette shop and as soon as they reached near Sumo vehicle, the driver of that vehicle suddenly and recklessly opened the door which hit the motorcycle, therefore, they turned the motorcycle just beside the Sumo and at that time, one Truck having my. No.07-ZC [3851 coming horn opposite direction which was being driven by respondent no.6 in a rash and negligent manner, dashed the motorcycle, as a result of which, Satyendra Rai fell od’ at a distance place whereas the pinion rider Kamlesh fell down in nont of the Truck and he was run over by its rear .wheel. The deceased died on the spot. At the time 'of N W accident, he was aged about 32 years and was runninggan elechical shop in Bhilai. Besides this he was also doing repair works of electronic and electric goods and as such, he was eaxning’Rs.15,000/- per month. The claimantsbeing Vlegal representau'ves of the deceased have made, a claim t0 the hme of Rs.48,64,000/- on various heads for the death of the deceased. The learned claims Tribunal, after heating the counsel for 1) the parties and on a close scrutiny of the evidence and other materials placed on record, has held that on 03.92.2004 when the door of the Tata Sumo was recklesslyopened by‘its driver, the motorcycle hit the door and at the same h‘me, the oh’ending Truck coming hom opposite direction which was being driven by respondent no.6 in a rash and negligent manner dashed the motorcycle, as a result of which, the deceased died on the spot. It has further held that the oh'ending Truck was not plying in breach of policy conditions. The Tribunal has awarded Rs. 6,49,000/- as compensation which the claimants are entitled to receive from the Insurer and owner of the oh‘ending Truck in equal proportion. 4. Though the Tribunal held that there wasrcontributory negligence on the part of the driver of Tata sumo but no hnding has been given as to how 50% of the compensation is to be borne b he owner of the Sumo vehicle. According to the spot map prepared ‘by the investigating o$cer, the position of the Tata Sumo has been shown as it was quite away hem the mad. Further the ’I‘ata Sumo was not r running, it was only standing at a quite distant place hem y t the road that is quite o§ side the road and themfom if the driver of the motorcycle was du'ving the motorcycle in such a way that it could not keep control over the motorcycle and there was negligence on the part of the dliver of the offending Truck dn‘ving it on extreme right side in a rash and negligent manner, the conuibutory negligence on theyart of driver of the motorcycle instead of the driver of the Tata Sumo which was not in running stage, cannot be ruled out. Since the claims Tribunal has not considered the situation of the Tata Sumo which was shown in the spot map prepared by the investigating o$cer, we are of the opinion that the matter requires reconsideration at the end of the Claims Tribunal, more so when it has been provided in Rule 226 of C.G. Motor Vehicles Rules, 1994 that the Claims Tribunal shall obtain Whatever information and documents which may be found necessary horn the police, medical and other authorities and proceed to award the claim whether the parties who were given non'ce, appear or not, on the appointed date. Further we cannot ignore the provisions of section168 of the Motor Vehicles Act, 1988 which provides that that on receipt of an application for compensation made u/s 166, the Claims Tribunal shall after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim and subject to the provisions of section 162 mayémake an award determining the amount of compensation which appears to it to be just. However, the Tribunal has not conducted any enquiry in the manner indicated above. £3¢ 5. Hence, we allow this appeal in pan; set aside the awanl dated 23.06.2006 and remit the matter back to the Tribunal for decision anesh. Reganiing contributoxy negligence, the Tribunal shall conduct enquiry under rule 226 of C.G. Motor Vehicles Rules, 1994 which provides that the Claims Tn'bnnal shall obtain Whatever informaiion and documents which may be found necessary. Further the parties shall be allowed to amend the pleadings, adduce further evidence, if any, me the documents or"get the documents verified etc., and thereafter the Tribunal shall decide the claim petition anesh at the earliest in light ofthe obsexvations made herein above. The parties shall appear before the Tribunal on 23'“ of March, 2011. The records of the Tribunal shall be sent back Without further delay. 6. The amount, if any, has been deposited by the insurance Company shall not be disbursed h'll the disposal of the claim petition and shall remain in hxed deposit with any Nationalized Bank Sdl- 1 l.M.Quddusi l’ Sd/- Judge 1' Prashant kumar Mishra Judge Rao