IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. \^^~ Miscellaneous Appeal NO......./2008. ~w^_&^ APPELLANTS !y~ ^^;-^?'^ ^%"" 2. "^^ /'" <y '..»'» *•»••' .1-- j-'" Dinesh allies Chandraprakash Choudhary S/o Shri Gaya Ram Choudhay, aged about 19 years Occupstion Service, resident of Village Belmundi Tahsil Saraipali Dist. Mahasmund (C.G.) Smt. Chandrakla Choudhary W/o Shri Parmanand Choudhay aged about 45 years, resident of Village Belmundi Tahsil Saraipali Dist. Mahasmund (C.G.) VERSUS RESPONDENTS 1) ; :2) ^- Awartar Singh S/o Shri Ajeet Singh aged about 36 years, Through Kuldeep Road carrier Telibandha Raipur, Resident of Near Ice Factoiy Telibandha Raipur (C.G.) (Owner cum driver ofVehicleTruckJio. C.G.-04- Z C -0321) The Oriental Insurance Company Limited, through Divisional Manager, the Oriental Insurance Company Limited, kachahari Chowk, Madina Manzil Raipur Dist. Raipur (C.G.) s, ^. MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988. HIGH COURT OF CHHAmSGARH. BILASPUR DB: HON'BLE I.M. QUDDUSI & HON'BLE N.K. AGRAWAL, JJ MISC. APPEAL (C| No. 1396 OF 2008 APPEARANCE: Mr. R.S. Patel, coi-msel for the appeUaaU. Mr. A. K. Athaley, counsel for respondent no.2. Per I.M. QUDDUSI, J ORDER (ORAL) (13.09.2010) 1. TIiis appeal has been filed against fhe impugned award dated 14.08.2008 passed by fhe First Addl. Motor Accident Claims Tribunal, Mahasamund (C.G) in claun Case No.26/2007 disinissiag fhe c]aim petition. 2. Brieffacts offhe case are as uader: On 12.2.2007 appellaat no.l along-with his aunt Chandrakala (appeUant no.2) was goiag on inotorcycle froxn Basna to fheir viUage Behnundi. At fhat tiine, a Truck conung from Saraipali, bearing Regn. No. C.G. 04 ZC 0321, which was beuig dnven rashly and negUgendy by respondent no.l dashed agaiast fhe Motorcycle, as a result ofwhich, fhe knee bone ofright leg of appeUant no. I was iractuied. He also sustained serious iajuries on bead aad ann. AppeUant no.2 Chandrakala also sustained grievous iajuries on her 7W.~!';sFQ\-~'V~ :.-;13'Sfc.. APPELLANTS Dinesb alias Chaadraprakash Chaudhaiy and aaother Vs. RESPONDENTS Awatar Singh aad aaother APPBAL UIIDERSECHPN 173 QF THE MOTOR VBHICLBS ACT, 1988 s' a W9SS i^£^ head, right leg and lefit elbow. The motorcycle of appeUant no. 1 was badly damaged iu fhe accident. (ii) Ap'peUant Dinesh was adinitted ui Govt. Hospital SarapaU where the doctors, after primaiy treattnent aad looking to the seriousness of the iajuries, advised to take lum to Raipiu-. Thereafiter on 12.02.2007 Dinesh was adiiutted in Gayatri Hospital, Raipur, where his rigbt leg was operated aad a rod was fixed. He was under treatment ia fhe said Hospital for 10 days. However, when there is no iiuproveinent, he was admitted ia Yashwant Hospital, Raipur on 20.03,2007 where again his leg was operated aud a rod was fixed. He had iiadertaken treatinent there tiU 22.3.2007. AppeBant Chandrakala has also admitted ia Devendra Naik Heritage Hospital, Raipur, where she was treated and C.T. Scaa was done. (iii) AppeUaat Dinesh was working ia Chaudhari Tractors, SaraipaU and was eaming Rs.4000/- per inonth. However, on account of his treatment he could not attend his works. His r^ht leg was shortened due to operations conducted twice after the accident which has resulted in permanent disabitity. Therefore, he is unable to do his work as before. (iv) The appeUauts have filed claim appUcation clauniag coiupensation to the tuie of Rs.10,25,000/- on different heads wifh iuterest @ 9 % per anntun. 3. The Tribunal has niainly fi-amed fhe foUowiag 3 issues : Whether respondent no.l driving fhe Truck bearing Regn.No.C.G.04 ZC 0321 rasUy and negligently dashed the appeUants and caused serious injuries ? ,._itf»"SJ'''*''':'..l'i- ^^1 •fes®»^ '<£fct:^i'"'"i<i:-, J3<' •:^fj:.V--,:--^- (ii) Whefher respondent no. 1 was having valid and efiFective drivuig Ucence at ttie time aad on the date ofincident ? (iii) Whether in respect of the uijuries sustained by fhe appeUaats in. the accident, they are entitled to get corapensation frosi fhe iion-applicauts? With regard to Issues no. 1 & 2, the Tribunal has given finding that fhese issues were not proved and hence the claunants are not entitled to get coinpensatiou for the injuries sustaiaed by theia in ftie accident. 4. It has been held by tbe Tribunal that the witnesses Diuesh @ Chandra Prakash and Chandrakala, appeUants herein, have not clearly stated fhat on the date of incident, Ram Avatar Singh was driviag the vehicle fherefore it is uot proved that Ram Avavatar Singh was the driver and coiiunitted the accident by rash and negUgent driving, causing serious injuries to the appeUauts. Furfher fhe Tribunal discredited fhe evidence offhe appeUaats on the ground fhat fhey had not disclosed fhe reason why fhey were staridiug on fhe comer of the road wlule goiag on niotorcycle aad further it has been held that the witoesses could not prove fhat fhe accident had taken place due to rash aiid negligent driviag. A perusal of the written stateinent filed by the driver aad owner of fhe vehicle namely Avatar Singh i.e., respondent no.l hereia and non-applicant no.l before the Tribunal clearly shows fhat he hitasetf has adinitted the fact that on the date of iacident i.e., 12.2.2007 he was driver as also registered owner of the offendmg Truck bearing Regn. C.G. XK 04 Z.C. 0321. He has further stated that he is not liable to pay coinpensation ia aay manner because he was haviag vaUd and effective driviiig license on 12.2.2007; fhe said vehicle was insiired with respondent no.2 and the vehicle was beiug driven by him (non-applicaat no. 1) ia accordauce wifh the tenus of the uisiirauce poUcy. Therefore, he is not liable to pay comipensation to (he appeUants and it m.ay be the responsibUity ofthe ixisuraace Coinpany. 6. The plea taken in the written stateruent vide Para 4 ia sum aud subslance would reveal fhat since he was haviag a valid aad effective driving license aad the vehicle ia question was also uisured, he is not liable to pay aay coinpensation rather the so]e liability coiaes to the Oriental Insurance Coiiipauy, Raipur. Therefore, the finding of the Tribunal that it is not proved that respondent no.l Ram Avatar Singh was the driver of fhe vehicle on fhe date of incident, is perverse as it was not to be proved by fhe witnesses aud this fact has atready beeii adinitted in fhe vraitten statenient by Avatar Siugh himself. Furfher iu the cross examination, it was no where suggested that the accident had never taken place and iu absence of such plea aud on a positive statenient of fh.e appeUant-witaesses that fhe accident had taken place, fhe fiadiag of fhe Tnbunal contrary to fhe pleadiag of respondent no.l in hfa writteu stateiaent vide para-4 is perverse. 7. In view of the facts aad circumstances nientioned above, we are offhe opiniou that it is a fit case to reiaaad the inatter to the Tribuiial for fresh decision after providiag opportuidty to the pardes concerued to adduce additional evidence, ifany. 8. In fhe result, we allow fhis appeal in part aud set aside the impugued award dated 14.08.2008 aud reiait ftie matter back to fhe Tribuiial for decision afresh. The claim petition shall be restored to its origiaal nnmber. The records of the trial Court shall be sent back to the Tribiuial forthwith. The parties shaU reinaui present befoie fhe Tribunal on 05th October, 2010. Sd/- I-M.Quddusi Judge Sd/- N.K.Agarwai Judge Rao