IN THE HIGH GOURT OF JUDICATURE CHHATTISGARH AT BILASPUR M.A.tONo. Ij^,^ _L^L APPELLANTS -f-J-[^ Naresh ;-':',''.'H];?'! 33!1©Kl Sahu, S/o ^.: ..\. ^•^" 2: VV" RESPONDENTS 4. 5. 6. <^- 7. Kumar Tilakram Sahu, About 35 years, R/o Kharod, Thana- Shivrinarayan, Distt.- Janjgir- Champa (C.G.) (Driver of Sumo No. C.G. 16 BO/873) Ishawar Prasad, S/o Guharam Patel, R/o Tushma, Thana Shivrinarayan, Distt.- Janjgir- Champa (C.G.) (Owner of Sumo No. CG 16 BO/873) VERSUS Karuna Bai Sahu W/o Late Gadarai Sahu, aged about 33 years, Minor Mukesh Late Gadarai about 16 years, Minor Kamlesh Late Gadarai about 14 years, Minor Dhaneshwar Kumar S/o Late Gadarai Sahu, aged about 12 years, Neelesh Kumar S/o Late Gadarai Sahu, aged about 07 years,< ninar) Jagdev, S/o Puran Sahu, Aged about 85 years. (Minor 2 to 5 through their natural mother respondent nos.l All R/o ofKikirda, Police . Station- Hasaud, Thana- ;Jayaipur, Distt.- Janjgir- United'*!!risurance' ^ompany Ltd. Divisicinal Office, Kachahari Chowk, Madeena Manzil, Raipur (C.G.) Kumar S/o Sahu, aged Kumar S/o Sahu, aged APPEALUNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 VAli^-f-iW} 6-f 1ft//P^/ ^ L\.6^,^s^/' Being aggrieved by the award/passed by the Second Additional Motop Accident Claim Tribunal, Baloda Bazar, Dated 18.03.209 filed as ANNEXURE A/l. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellants Respondents M.A.rdNo. 42/2010 Naresh Kumar Sahu and another Vs Karuna Bai Sahu and others Present: Mr. N.K. Shukla, Sr. Advocate with<Mr. Aditya Khare, counsel for the appellants/driver and owner. Mrs. Chitra Shrivastava, counsel for respondent No.7. >thORDER (Oral) (19mSeptember,2011) Per I.M. Quddusi,_J 01) This appeal has been filed under Section173 of the Motor Vehicles Act, 1988 by the appellants/driver and owner against the award of the II Additional Motor Accident Claims Tribunal, Baloda Bazar, dated 18 March, 2009 passed in Claim Case No.46/08, whereby liability has been fastened upon the appellants/driver and owner, whereas the insurance company has been exonerated. 02) Brief facts of the case are that on 7.1 .2008 Gadarai Sahu was going to attend the function of Sahu Society to Rajim from Village - Kikirda by Sumo No. CG 16 BO/0837. At the time of accident, the said Sumo was being driven by appellant No.1, owned by appellant No.2 and insured with respondent No.7. Appellant No.1 by driving the said Sumo in a rash and negligent manner, dasjied, it against a tree, as a result of which Gadarai sustained serious injuries over his person. The other persons traveling in the said Sumo also sustained injuries. Gadarai was taken to Medical College Hospital, Raipur for treatment, where he died on 29.1.2008 during treatment. ^ \ ~v 2- 03) At the time of accident, the deceased was 35years of age and was earning Rs.9,000/- per month by doing labour work. The claimants, who are his widow, children and father, being his legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act") for a total compensation of Rs.30,25,000/- against the death of Gadarai Sahu under various heads. 04) However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.4,05,000/- in favour of the claimants, fastening the liability upon the appellants/driver and owner of the vehicle. 05) We have heard learned counsel for the parties, perused the LCR as also the impugned award. 06) Upon perusal of the LCR, we have found that scriber of the FIR was not examined and the eyewitness have not tbld about the vehicle whether the same was taken on rent or it was courtesy of the owner as the driver was allegedly belonging to the place of the owner. The owner had come into witness box and stated that as the driver came to him, he permitted the driver to go with the deceased and other persons as they belonged to his place and were of the same community. 07) The insurance company has been exonerated on the ground that the vehicle in question was being used for commercial purposes i.e. it was taken on rent, hence there was breach of conditions of the insurance policy, which was a package policy for private car. * 08) Thus, considering the'facts and circumstances of the case, we are of the opinion 'that this issue has not been decided properly as to wh^ther the vehicle in question was being used for commercial purposes or not? For that the Tribunal should have conducted an enquiry as laid down in Sections 168, 169 of fhe Act, 1988 and Rule 226 of the CG Motor Vehicles .^ \. 3 Rules, 1994. Therefore, in our opinion, the matter requires reconsideration at the end of the Tribunal as the scriber of the FIR wasalso not summoned to prove the allegation regarding taking of the vehicle in question on rent, as mentioned in the FIR. 09) In the result, the appeal is allowed in part, the impugned award is set aside the matter is remitted back to the Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. The Tribunal shall also conduct an enquiry to ascertain the truth for awarding just compensation. 10) Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the documents verified eto. and thereafter, the award shall be made afresh. 11) Parties shall appear before the Tribunal on 19 October, 2011. 12) LCR shall be sent back to the Tribunal without further delay. 13) No order as to costs. ' -^ 14) Certified copy as per rules. '^';•.'•• S(i/- DK. I.M.Quddusi Judge Sd/- G. Minhajuddin Judge h ^