BEFORE THE HON'BLE HIGHCOURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (0 No. 5^v\ /2011 APPELLANTS /: CLAIMANTS ^.--y/! /.^' y ^ / A~ ^y/y ^^ r 1. Smt. Sonia Dwivedi, Wd/o Late Devendra Kumar Dwivedi, Aged about 26 Years, 2. Ku. Gunjan Dwivedi, D/o Late Devendra Kumar Dwivedi Aged about 2.5 Years, 3. Suryansh Dwivedi, S/o Late Devendra Kumar Dwivedi, Aged about 1 Year, 4. Jagannath Dwivedi, S/o Late Munna Lal Dwivedi, Aged about 60 Years, 5. Smt. Nirmala Dwivedi, W/o Jagannath Dwivedi, Aged about 57 Years, Appellants No. 2 to 3 being minors represented by their natural guardian & mother appellant No. 1 Smt. Sonia Dwivedi, Wd/o Late Devendra Kumar Dwivedi, All R/o Behind Karma Mata School, Goodluck Plastic Street, Santoshi Nagar, Raipur, C.G. VERSUS RESPONDENTS: NON-APPLICANTS 1. Prem Lal Yadav, S/o Late Taturam Yadav, Aged about 45 years, R/o Behind Primary School, Maroda Tank, Thana Navai, District Durg. C.G.- Other Address : Competent Officer , <"Raipur Bus Service, A/15, Mahesh Colony, Near 0!d Poolgaon Naka, G.E. Road Durg, C.G. (Driver of Vehicle Bus bearing Registration No. C.G. 07/E - 5412) 2. Competent Officer , Raipur Bus Service, A/15, Mahesh Colony, Near Old Poolgaon Naka, G.E. Raod Durg, C.G. (Owner of Vehicle Truck bearing Registration No. C.G. 07/E-5412) -^ 3. I.C.I.C.I. Lombard General Insurance Company Limited, Through Competent Officer, I.C.I.C.I. Lombard General Insurance Gompany Limited, 3 Floor, Lal Ganga Shopping Mall, Near Rajbandha Maidan/Ground, G.E. Road, Raipur, (C.G.) (Insurer of Vehicle Truck bearing Registration No. C.G. 07 /E -5412) Policy No. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT, 1988 FOR ENHANCMENT OF COMPENSATION AMOUNT ^-' -2- HIGH COURT OF CHHATTISGARH : BILASPUR M. A. 10 No. 439 of 2011 Appellant Respondents Versus ICICI Loinbard General Insurance Company Limited Smt. Soniya Dwivedi 8s others And M. A. (0 No. 544 of2011 Appellants Respondents Versus Srat. Sonia Dwivedi Si, others Prem Lal Yadav 6s others DB: HonUe Mr. Jusdce I. M. Quddusi 8s Hon'ble Mr. Justice G. Minhajuddin Shri Sourabh Sharma, Advocate for the Insurance Company. Shri Satyendra Sahu, Advocate for the Claimants. None for the Driver and Owner. ORD E R (Qral) (Passed on this 27th day of September, 2011) Per I. M. Quddusi, J. The aforementioned both the appeals ( M.A.(C) Nos. 449 and 544 of 2011) are being decided by this common order as they arise from the award dated 14.12.2010, passed by the First Additional Motor Accident Claims Tribunal, Raipur in Claim Case No. 26/2010 (Smt. Sonia Dwivedi &, others Vs-.Prem Lal Yadav & others), awardin; a total sum of Rs. 11,61,500/-, holding the Insurance Company -<<•'- jointly and severally liable to pay the amount of corapensation. The M.A.(C) No. 449/2011 has been filed by the Insurance Cpmpany challenging the quantum, whereas M.A.(C) No. 544/2011 has beeri filed by the claimants for enhancement of the award. In both the appeals the questions of quantum is in dispute by both the sides. -^^^'•v^^ ^.r^^^ '^ fr a>,.%^s'' <I-t w WI 3. The permission under Section 170 of the Motor Vehicles Act, 1988 was granted to the Insurance Company to challenge the award on all counts. 4. Brief facts, in nutshell are that on 30.12.2007 at about 8.30 p.m. when the deceased Devendra Kumar Dwivedi was going on his motorcycle, in front of Golden Marble, Ring Road No.l, Tikrapara, Raipur, the Bus, bearing registration No. C.G. 07-E/5412, which was being driven by the non-applicant No.l in a rash and negligent manner, hit the motorcyclist, resulting in his death. 5. The legal heirs/dependents of the deceased Devendra Kumar Dwivedi filed the Claim Case No. 26/2010 under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 23,70,000/-. 6 . Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded a total sum of Rs. 11,61,500/-along with interest @ 6% per annum. 7. We have heard learned counsel appearing for the parties and perused the lower Court record, including the charge sheet filed by the police in which two persons have been shown as eye-witness but none of the eye-witness has been produced by the claimant before the Claims Tribunal. One Samiran Bose has been produced by the Claimants as eye-witness of the incident but he has not given the correct picture of the incident rather has stated coritrary to the facts and his statement cannot be believed.Jn our (^pinion he cannot be an eye-witness of the incident; Therefore, the Tribunal should have considered that the eye-witness have been shown in the charge sheet by the police and they should have been summoned to ascertain the facts. VE~ £ rieSs: % ^y 8. In view of the foregoing, we allow the M.A.(C) No. 439/2011 in part, set aside the impugned award dated 14.12.2010 and remit back the matter to the Claims Tribunal to consider and decide afresh in the light of the observations made herein above. The M.A.(C) No. 544/2011 stands disposed of in view of the direction issued for recalculation of the amount of compensation. No order as to costs. 9. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents'and get the docuraents verified etc. Thereafter, the decision shall be made by the Tribunal on merits. 10. Further, needless to mention that the eiaims Tribunal shall make an endeavor to decide the Claim Petition afresh, as early as possible, preferably within a period of three months from the date of appearance of the parties. 11, Parties shall appear before the Claiins Tribunal on 17.11.2011. 12. The amount, if any, deposited with the Tribunal shall remain in fixed depos.it.seheme till feesh decision is taken by the Tribunal. 13. THe lower Courtslt'eGord sBatI^be sent back fbrthwith. y&N:%is®:s,^. •?'.iMSd/-%^ :I.K/[:(2ud3iisi'; ^M.dge'^; ^Ciulam^Mmhaju.ddinll ,.;';;I^B%<i3udge^ 'halcur