Amit Kumar Mishra Vs Smt. Shivdevi

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NAFR

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Digitally signed by PRAKASH KUMAR Date: 2024.11.27 16:55:34 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1758 of 2018

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Smt. Shiv Devi Widow of Late Sutikshan Dubey, Aged About 68 Years,

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Smt. Jyoti Dubey W/o Late Manish Kumar Dubey, Aged About 26 Years,

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Minor Prabhat Kumar Dubey S/o Late Manish Kumar Dubey, Aged About 5 Years Through Natural Guardian His Mother Smt. Jyoti Dubey, All are resident of Ward No. 5, Near Basundhra Vihar Godhanpur, Ambikapur, P. S. and Tahsil Ambikapur, District Sarguja, Civil and Revenue District Sarguja, Chhattisgarh.

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---- Appellants

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Versus

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Amit Kumar Mishra S/o Shri Kamla Kant Mishra, Aged About 40 Years, R/o Qt. No. MQ - L / 22, Balgi Colony Korba, District Korba, At Present Parsuram Nagar Gate, Manikpur Road, (Dadar) Tiwari Farm House, P. O. - Manikpur, (Niharika) P.S. Manikpur, District Korba, Chhattisgarh. ............Owner of Vehicle,

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The National Insurance Company Limited Through Branch Manager, National Insurance Company Limited Branch-1, 13, Minu Complex Main Road Kosabadi, Korba, District Korba, Chhattisgarh.

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---- Respondents

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MAC No. 451 of 2021

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Amit Kumar Mishra S/o Kamlakant Mishra Aged About 40 Years, R/o Qt. No. M. Q. L. /22, Balgi Colony, Korba Chhattisgarh, At Present R/o Parsuram Nagar, Gate, Manikpur Road (Dadar) Tiwari Farm House P. O. Manikpur (Niharika) P. S. Manikpur, District Korba, Chhattisgarh,

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----Appellant

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Versus

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Smt. Shivdevi W/o Late Sutikkshan Dubey, Aged About 68 Years,

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Smt. Jyoti Dube W/o Manish Dubey Aged About 26 Years,

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Prabhat Kumar Dubey S/o Late Shri Manish Dubey Aged About 5 Years Minor Through His Mother Smt. Jyoti Dubey, (Natural Guardian) All are R/o Ward No. 5, Near Vasundhara Bihar, Godhanpur, Ambikapur, District Surguja, Chhattisgarh,

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National Insurance Company, 13 Meenu Complex, Main Road, Koshabadi Korba, Chhattisgarh,

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---- Respondents

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For No.1	Appellant/Claimants 758/2018	(MAC	Mr. Manoj Kumar Sinha, Advocate,
For	Respondent No.2	(MAC	Mr. Ashish Gupta, Advocate
No.1	758/2018)
For	Appellant/Owner	(MAC	Mr. Kalyan Kalamkar, Advocate
No.4	51/2021)
For	Respondent No.4	(MAC	Mr. Anil Gulati, Advocate
No.4	51/2021)

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Hon'ble Shri Justice Radhakishan Agrawal, Judgment on Board 22/11/2024

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Both the above appeals arise out of common award dated 19.06.2018 therefore, they are being heard together and disposed of by this common judgment.

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The claimants filed a claim application under Section 166 of the MV Act, inter alia, pleading that on 15.12.2015 at about 10:30 AM in the morning, the deceased, Manish Dubey was going to Bagdewa Mines which is situated in village Bagdewa P.S. Katghora, District – Korba (C.G.). When he reached near mines gate, non-applicant No.1 – Amit Kumar Mishra, who was driving the vehicle TATA Triper Truck bearing registration No.CG-12-S-1906 (for short, the offending vehicle’), in a rash and negligent manner, dashed the motorcycle of the Manish

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Dubey, due to which, he suffered grievous injuries and during his treatment, he died. Further, as per the averments, the deceased, who was 30 years at the time of accident, was working in South Eastern Coalfields Limited and was earning Rs.30,000/- per month and sought total compensation of Rs.1,47,25,000/- on various heads.

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MAC No.1758/2018 has been filed by the appellants/claimants seeking enhancement against the award dated 19.06.2018 passed by the 1^st Additional Motor Accident Claims Tribunal, Ambikapur, District – Surguja, Chhattisgarh (in short ‘the Tribunal’) wherein in Claim Case No.147/2016 the learned Tribunal has awarded Rs.9,51,800/- in favour of the claimants and fastened the liability upon non-applicant No.1, along with interest @ 6% per annum from the date of filing of claim petition till its realisation whereas MAC No.451/2021 has been filed by the owner/non-applicant No.1 praying for remand the matter to the learned Tribunal for making the decision afresh.

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Shri Kalyan Kalamkar, learned counsel appearing for appellant in MAC No.451/2021 (non-applicant No.1)/owner of the offending vehicle submits that at the time of accident, the offending vehicle was insured with National Insurance Company Limited/non-applicant No.2 and was having permit, fitness certificate. He further submits that an application (I.A.No.3/2021) has been filed on behalf of appellant/owner of the offending vehicle for taking additional documents on record, i.e., certificate of fitness, permit and copy of original insurance policy wherein it is mentioned that the offending vehicle was insured with National Insurance Company Limited effective from 10.01.2015 to 09.01.2016. Further, at the time of accident, the owner of the offending

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vehicle was also possessing valid driving licence. He further submits that when the claim petition was filed by the claimants before the Tribunal, the owner did not get copy of notices issued by the Tribunal, and therefore, he was not present before the Tribunal and hence, he was declared ex-parte. This apart, after awarding the compensation by the learned Tribunal, when the notice was sent to the appellant/owner in his proper address by this Court, then the appellant came to know about the passing of the award by the Tribunal in favour of the claimants. Thus, he prays that the above mentioned application may be allowed. Lastly, he submits that if the Court is of the opinion that the matter needs remand, then the Tribunal may be directed to afford him sufficient opportunity to be impleaded and file necessary documents in claim petition and also to give proper opportunity to other parties to lead their evidence for decision afresh.

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On the other hand, Shri Manoj Kumar Sinha, learned counsel for the claimants / appellants (in MAC No.1758/2018), submits that he has no objection if the application (I.A. No.3/2021) filed by the owner of the offending vehicle for taking documents on record is allowed. He also submits it would be appropriate for this Court to remand the matter back for decision afresh.

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I have heard learned counsel for the parties and perused the record.

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Before proceeding further, I am inclined to allow I.A.No.3/2021, which is an application filed by the owner Amit Kumar Mishra under Order 41 Rule 27 of the C.P.C. for taking documents annexed with the application on record as they are relevant for decision making afresh. Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine

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claims. The Tribunals must bear in mind the object of the Act in affording opportunity to every party arrayed in petition/appeal and in awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. Accordingly, I.A.No.3/2021 is allowed and the documents annexed with the application are taken on record.

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From perusal of record, it appears that on three occasions, notices were issued upon the Non-applicants, however, on two occasions, since process fee was not paid, notice was not served upon Nonapplicant No.2. It also appears from record that no service report was obtained by the office of the concerned Tribunal to show whether Nonapplicant No.2 is served or not. It is surprised to note that on 09.12.2016, the order sheet of the Tribunal shows that Non-applicant No.1 – Amit Kumar Mishra was absent as no process fee was paid on 17.01.2017. Thereafter, several dates were given by the Tribunal for service of summons to non-applicant No.1, and ultimately, through news paper publication non-applicant No.1 was served, even then, he was not present, and finally he was declared ex-parte, therefore, it appears that since notice/summons were served through paper publication upon the Non-applicant No.1, but he could not make his presence before the Tribunal and finally, the claim petition was decided.

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By way of I.A.No.3/2021, the Non-applicant No.1/respondent No.1 herein brought the documents with respect to offending vehicle on

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record. On perusal of such documents, it appears that at the time of accident, the offending vehicle was insured and its validity of insurance was effective from 10.01.2015 till midnight of 09.01.2016. Similarly, period of fitness was effective from 12.12.2014 and would expire on 11.12.2015 and then 22.12.2015 till 21.12.2016. Likewise, validity of permit was effective from 14.03.2017 and would expire on 13.03.2017 whereas the accident is of 15.12.2015. The learned Claims Tribunal ought to have given an opportunity to the claimants to bring aforesaid documents on record and without giving at least an opportunity to the parties, the learned Claims Tribunal decided the claim petition straightaway. A perusal of record would also show that either the claimants or the insurer did not bring necessary documents with respect to the offending vehicle on record and that Non-applicant No.1 was also not present, therefore, I am of the considered opinion that the approach of the Tribunal in not giving any opportunity to Non-applicant No.1 is not sustainable and that the Tribunal ought to have given opportunities to all the parties to put forth their case, if any.

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Considering the every aspect of the matter, in my opinion, the aforesaid captioned appeals are liable to be and are hereby allowed and the impugned award dated 19.06.2018 passed by the Tribunal is set aside and the matter needs remand.

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Accordingly, the matter is remitted back to the concerned Tribunal to pass award afresh, without influencing the observations made hereinabove, after affording full opportunity of hearing to all the parties, to file written statements, documents and lead evidence and in turn, the Tribunal shall also give an opportunity of hearing to all the parties.

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It is made clear that after filing of written statements, recording evidence of the parties and that after hearing the parties, the Tribunal shall decide the claim petition as early as possible preferably within a period of six months from today.

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Record of the Tribunal be sent forthwith. The parties to these appeals are directed to appear before the Tribunal on 13.12.2024.

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Sd/- (Radhakishan Agrawal) Judge

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Prakash

Amit Kumar Mishra v. Smt. Shivdevi

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Amit Kumar Mishra v. Smt. Shivdevi

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