Siya Lal v. Kumar Naveen Heerachand Jain

Single Bench :- Hon'ble Shri R.N. Chandrakar. J IVi.A.fONo. 922 of 2009 ADpeilant Respondents ApDeliant insurance Companv Respondents Claimant Owner Siya Lal son of Balchand, aged about 35 years, R/o Village Turange, Post, P.S. and Tahsil Bhanupratappur, District Uttar Bastar, Kanker (C.G.) Versus Jain, Kumar Naveen D/o Heerachand Jain, Occupation - vehicle Owner, R/o. viilage and Tahsil Bhanupratappur, District Uttar Bastar (CG), Kanker

2. Alliance Bajaj Genera! Insurance Company Limjted, through : Branch Manager, Branch Shivmohan Vidhan Sabha Marg, Pandari, Raipur, Tahsil and District Raipur (CG) Office And IVI.A.(C)No.1203 of 2009 Alliance Company Bajaj General Insurance Ltd. through Manager, Branch Branch Office, Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur, District Raipur (CG) Tahsii Versus Siyalal, S/o Balchand Gond, aged 25 years, R/o village Turange, Post-Thana-Tahsil: Bhanupratappur, Distt. North Bastar, Kanker (CG)

2. Navin Kumar Hirachand Jain, R/o Bhanupratappur, Bastar, Kanker (CG) village Jain, S/o Jeep Owner, Tahsil & Distt. North ..^^ ^ fM--^^ ••* '•' ^-^ 3^ IVIISCELLANEOUS APPEALS UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance: (In M.A.(Cl No. 922/20091 Shri P.P. Sahu, counsel forthe appellant. Shri Prakash Tiwari, counsel for respondent No. 1. Shri G.S. Patef, counsej for respondent No.2. (In M.A.fCl No. 1203/20091 Shri G.S. Patel, counsel forthe appellant. Shri Prakash Tiwari, counsel for respondent No.2. None for respondent No.1. Order (Passedon JO /10/2012) Since M.A.(G) Nos. 922/2009 preferred by claimant and M.A.(C) No. 1203/2009 preferred by the Insurance Company arise out of the same accident and same award dated 29.04.2009 passed in Claim Case Nos. 29/2008 by the Additional Motor Accident Claims Tribunal (FTC), (for short 'the Tribunat'), Bhanupratappur, District Uttar Bastar Kanker, they are being disposed of by this common order. As against compensation of Rs.4,00,000/- claimed by the claimant by filing an applications under Section 163 (A) of the Motor Vehicles Act, M.A.(C)No.922/2009 in the motor accident which took place on 08.03.2008, learned Tribunai has awarded a total sum of the injuries sustained by Siyalal Rs.78,822/-, as compensation to the claimant aiong with interest @ 6% per annum from the date of filing of the appiication till the date of actual payment. Brief facts, as per the version of the claimants, are that on 08.03.2008 at about 08.00 P.M., near village Balod Gahan, the driver of unknown Truck, driving his vehicle from opposite side in a rash and negligent manner dashed Jeep bearing registration No. CG-19/T-0448, owned by non-applicant No.l-Navin Jain, as a resuit of which Kailash Jain, driver of the Jeep died on the spot 1) 2) 3) ^^^^. ,^-w-^.^ ,^.-<^\ ('^ ^•.••:.^ 4 and claimant Siyalal in M.A.(C)No.922/2009 sustained grievous injuries including fracture. The matter about the incident was reported to the poiice station, Guru on the basis of which offence under Section 304-A of the IPC was registered against the driver of the unknown Truck. Claimants Siyalal in M.A.(C)No.922/2009 had flled claim petitlon before the Claims Tribunal under Section 163-A of the Motor Vehicles Act, 1988 (for short 'the Act') claiming compensation of Rs.4,00,000/- for the injuries sustained by him including fracture in the motor accident which took place on 08.03.2008. The tearned Claims Tribunal on a close scrutiny of the evidence led, material placed and submissions made by the parties has awarded amount of Rs.78,822/- as compensation to theclaimant along with interest @ 6% per annum. Shri P.P. Sahu, for the appellants in M.A.(C) learned counsei ' l^ 4) 5) 6) He also submjts that No.922/2009 submits that learned Tribunal has erred in assessing the income of the appellant to Rs.1,500/- per month instead of Rs.3,000/- per month. learned Tribunal erred in holding 20% permanent disability without assigning any reason instead the fact that disability certificate (Ex.P/7) issued by S.M.O., District Hospitat, Dhamtari is to the extent of 45%. He further submits that amount of Rs.5,000/- awarded towards pain and suffering is on lower side, therefore, the impugned award may be enhanced suitably. 7) Shri Prakash Tiwari, learned counsel for respondent No.1 in M.A.(C)No.922/2009 supporting the impugned award contended that the Tribunal after considering the facts and circumstances of rightly awarded the aforesaid compensation to the claimant. 8) Per contra, Shri Ghanshyam Patel, learned counsel for the appellant in M.A.(C)No. 1203/2009 submits that claim petition filed under Section 163-A of the Act was not prima-facie maintainable since the driver or his legal representative, who was driving the vehicle at the time of incident was not made a party. He also submits that claimant was occupant of the vehicle Jeep which ^.,..,^»^-J.,,, .^^"^ '^ k^. ^''-' '^ .^r^•f' % 9) 10) was dashed by unknown Truck and theclaim petition was filed the owner and insurer of Jeep in which deceased against claimant was traveling and as such he cannot be claimed to be third party within the ambit of Chapter-XI ofthe Act. ! have heard the learned counsel for the parties, perused the impugned awards and records ofthe Claims Tribunal. A bare perusal of the records goes to show that iearned Tribunal has framed issue No.1 wherein it was held that on 08.03.2008 at about 7.30 to 08.00 P.M., near viltage Balod Gahan, Claimant in M.A.(C)No.922/2009 sustained grievous injuries inciuding fracture in the motor accident due to driving of Jeep Siya Lal Commander bearing registration No. CG-19/T-0448 by its driver and fastened liabitity upon appeltant/lnsurance Company in M.A.(C)No.1203/2009 stating that vehicle Jeep was not being driven in violation of the policy conditions but from perusal of the written appellant/lnsurance statement Company M.A.(C)No.1203/2009, that appellant has challenged maintainability ofthe claim petition filed under Section 163(A) of in M.A.(C)No.922/2009. the Act by the appellant is very clear However, learned Tribunal has not framed any specific and distinct issue on the ground of maintainability and decided the matter finally, which in my opinion is grave error of law. Once the question of maintainability of the claim petitions has been raised by the appellanVlnsurance Company then the learned Tribunal ought to have framed issued on that very ground but Tribunal failed to do so. in the interest of justice, deem it necessary to remand the matter to the Tribunal for passing award afresh after framing specific and distinct issue on the ground of maintainability ofthe claim petitions filed under Section 163(A}of the Act; giving reasonable opportunity to the parties of leading evidence in support of their pleas. For the foregoing reasons, impugned award dated 29.04.2009 is I, therefore, 11) set aside and the matters are remanded to the Tribunal passing award afresh in the light of hereinabove within a period ofsix months. the observations made ••^ \,-^ ^''-—v- '^.. V..,;-=r^-^' Vijay 12) The amount of compensation, if any, deposited by the AppellanVInsurance Company in M.A.(C)No. 1203/2009 satisfaction of the impugned award shall be adjusted jn the compensation to be awarded by the Tribunal. 13) 14) Parties are directed to appear before the Tribunal on 03.12.2012. No order as to costs. — Sd/- R.N. Chandrakar Judge