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2011 DIGILAW 209 (CHH)

JOHITRAM YADAV v. YOGENDRA SINGH THAKUR

2011-07-01

G.MINHAJUDDIN, I.M.QUDDUSI

body2011
ORDER As per HOD 'ble Shri I.M. Quddusi, J. :- 1. This appeal under Section 173 of the Motor Vehicles Act has been filed against the award of Motor Accident Claims Tribunal (FTC), Bilaspur, dated 29th June, 2007 passed in Claim Case No.3 1106, dismissing the claim petition filed under Section 163A of the Motor Vehicles Act (in short "the Act"), inter alia, on the ground that the injured/claimant, who was driving the vehicle-jeep, was himself negligent. 2. Brief facts of the case are that on the date of incident 21.4.2003 the appellant was coming back from Nawagarh by driving Jeep No. CG 10 ZD/l541. When he reached near main road, Sambalpur, as there was high~lope nalla and turning, due to failure of brake of the jeep, it got uncontrolled and turned turtle, as a result of which the persons, including the appellant-driver, traveling in the jeep sustained grievous injuries. Report of the accident was lodged in the Police Station : Nawagarh, whereupon offence was registered against the appellant and charge sheet was filed against him before the Court at Durg. Due to this accident, the appellant sustained grievous injuries over head, waist and other parts of the body. The appellant remained hospitalized from 24.4.2003 to 22.5.2003. However, even after treatment, he is not able to move without support. Rs. 1,50,000/- has been spent on his treatment and in future also, he is required to incur expenses for treatment. The appellant was a skilled driver and thereby earning Rs.40,000/- per year. Since on account of the unfortunate accident, he has been permanently disabled, therefore, a total compensation of Rs.17 lakhs was claimed. 3. Heard learned counsel for the parties and perused the impugned award. 4. Sub-section (2) of Section 163A of the Act provides that in any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. 5. In the case of Deepal Girishbhai Soni and other Vs. United India Insurance Co. Ltd., Baroda}, the Hon'ble Supreme Court, in para-66, has observed thus: "66. 5. In the case of Deepal Girishbhai Soni and other Vs. United India Insurance Co. Ltd., Baroda}, the Hon'ble Supreme Court, in para-66, has observed thus: "66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, "under the provision of the Act", "provisions of this Act", "under any other provisions of this Act", or "any other law or otherwise". In Section 163-A, the expression "notwithstanding anything contained in this Act or in any other law for the time being in force" has been used, which goes to show that Parliament intended to insert a non obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of." 6. Thus, in view of above, it is clear that Section 163-A would apply despite contrary provisions existing in the Motor Vehicles Act or any other law for the time being in force, and that section covers cases where even negligence is on the part of the victim. Therefore, if there was negligence on the part of the driver, who is a victim in the instant case, the provisions of Section 163-A would be applicable. 7. With regard to consumption of alcohol by the appellant-driver, the same is an offence punishable only if in the blood of the driver alcohol exceeding 30 mg per liter of blood is detected in a test by a breath analyzer, as provided in Section 185 of the Act. However, if the alcohol is found below the above quantity in the blood, it is not punishable, and it was the duty of the Tribunal to determine the quantity of alcohol by summoning even the doctor who had examined the injured medically. 8. However, if the alcohol is found below the above quantity in the blood, it is not punishable, and it was the duty of the Tribunal to determine the quantity of alcohol by summoning even the doctor who had examined the injured medically. 8. Sections 168 and 169 of the Act and Rule 226 of the CG Motor Vehicles Rules, provide that the Tribunal shall conduct an enquiry to determine the fact in respect of award of compensation. Therefore, we are of the opinion that the Tribunal was not justified in treating the claim petition as a civil suit and deciding the same only on the basis of pleadings or the evidence adduced by the parties. : 9. In the case of Raj Kumar Vs. Ajay Kumar and another, the Hon'ble Supreme Court, in para-II, has held thus: "Para II-The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in partkular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While• dealing with personal injury cases, the 'tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding tire medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage." 10. In view of the facts and circumstances of the case, the matter requires reconsideration at the end of the Tribunal. Therefore, we allow this appeal in part and remit the matter to the claims Tribunal to decide the case afresh after giving opportunity of hearing to the parties, in the light of the observations made above. Needless to mention that the parties shall also be allowed to amend the pleadings, adduce further evidence, file documents and get the documents verified etc. and thereafter, fresh findings shall be given by the Tribunal and award shall be passed afresh. The Tribunal shall also conduct an enquiry into the claim for determining the just compensation. 11. Parties shall appear before the Tribunal on 27th July, 20 II. 12. LCR shall be sent back to the Tribunal without further delay. 13. No order as to costs. 14. Certified copy as per rules. Case Remanded.