Page No.# 1/13 GAHC010126092014 2025:GAU-AS:5909 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./202/2014 BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD HAVING ITS REGISTERED OFFICE and HEAD OFFICE AT GE PLAZA, AIRPORT ROAD, YERAWADA, PUNE 411006 AND ITS LOCAL OFFICE AT ASANTA ENCLAVE, 4TH FLOOR, B. BARUAH ROAD, ULUBARI, GUWAHATI 781007 REPRESENTED BY THE MANAGER, GUWAHATI BRANCH. VERSUS MD. SAHABUDDIN KHAN and 2 ORS. S/O SRI RAFIQUDDIN KHAN, R/O MAJ DABLUNG BASTI, P.O. LASKAR PATHAR, P.S. LANKA, DIST. NAGAON, ASSAM. 2:NAYAN JYOTI KHANIKAR S/O SRI RUPESWAR KHANIKAR R/O NATUN NIRMALI GAON NEAR T.V. CENTRE DIBRUGARH DIST. DIBRUGARH ASSAM DRIVER OF THE VEHICLE NO. AS-23-D-7333 ASCENT CAR 3:DEBOJIT DUTTA S/O SRI KHOGEN DUTTA R/O BAKUL MAZGAON P.O. LAHOAL DIST. DIBRUGARH ASSAM OWNER OF THE VEHICLE NO. AS-23-D-7333 ASCENT CA Advocate for the Petitioner : MR.I ALAM, MR.R GOSWAMI,MS.M SAIKIA Advocate for the Respondent : MR P GOGOI, MR.H BURAGOHAIN,MRU S BORGOHAIN,MR.A Page No.# 2/13 BARUAH,MR.R S MISHRA(R-1),MR.A K GUPTA(R-1) Linked Case : MACApp./484/2018 MD. SAHABUDDIN KHAN S/O SRI RAFIQUDDIN KHAN R/O MAJ DABLUNG BASTI P.O. LASKAR PATHAR P.S LANKA DIST. NAGAON ASSAM REPRESENTED BY RAFIQUDDIN KHAN VERSUS NAYAN JYOTI KHANIKAR S/O SRI RUPESWAR KHANIKAR R/O NATUN NIRMALI GAON NEAR T.V. CENTRE DIBRUGARH DIST. DIBRUGARH ASSAM DRIVER OF THE VEHICLE 2:DEBOJIT DUTTA S/O SRI KHOGEN DUTTA R/O BAKUL MAZGAON P.O. LAHOWAL DIST. DIBRUGARH ASSAM OWNER OF THE VEHICLE 3:THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. TINSUKIA BRANCH SHREE BALAJI COPLEX 2ND FLOOR A.T. ROAD NEAR OLD RAILWAY STATION TINSUKIA ASSAM INSURER OF THE VEHICL ------------ Advocate for : MR. A K GUPTA Advocate for : MR. D HANDIQUE appearing for NAYAN JYOTI KHANIKAR Page No.# 3/13 BEFORE HONOURABLE MRS. JUSTICE MARLI VANKUNG JUDGMENT Date : 28.03.2025 Date of hearing : 13.03.2025. Date of judgment : 28.03.2025 JUDGEMENT AND ORDER (CAV) Heard Mr. R. Goswami, learned counsel for the Bajaj Allianz General Insurance Co. Ltd.,/appellant in MAC App. No. 202/2014 and respondent in MAC App. No. 484/2018. Also heard Mr. A. K. Gupta, learned counsel for respondent/claimant in MAC App. No. 202/2014 and the appellant/claimant in MAC App. No. 484/2018. 2. These appeals are filed under Section 173 of the Motor Vehicles Act, 1988 against the same Judgment & Award dated 24.04.2014 passed by the learned Member MACT, Tinsukia in MAC Case No. 84/2009, wherein the learned Tribunal had awarded a total amount of Rs. 10,33,910/- with 6% interest thereof from the date of filing of the claim application in favour of the claimant to be paid by the insurer Bajaj Allianz General Insurance Co. Ltd. Since both MAC App. No 202/2014 and MAC App. No. 484/2018 are arising out of the same Judgement and Award dated 24.04.2014, both the appeals are heard and disposed of by a common judgment. 3. Brief facts of the case is that on 03.05.2008, the claimant met with an accident, while he was going towards the Railway Station along with two Page No.# 4/13 others, when a vehicle bearing registration No. AS-23-D-7333 (Ascent Car) knocked him down and the other two pedestrians from the back side. As a result of the said accident, the claimant sustained grievous injuries. The aforesaid vehicle was insured by the Insurance Company and the injured filed the MAC Case No. 84/2009 under Section 163 of the Motor Vehicles Act, 1988 claiming compensation of Rs. 13,22,800/- by stating that he suffered 90% disability due to the accident. As a result of the accident, one of the pedestrians Mohammad Saharuddin died instantly and the claimant was shifted to the Civil Hospital from where he was referred to A.M.C.H., Dibrugarh, where he had to undergo various operations. The Medical Board of Nagaon District certified that he had suffered 90% disability. The driver and owner of the vehicle, and the Insurance Company were arrayed as opposite party Nos. 1, 2 & 3 respectively in the claim application filed before the learned Tribunal. The opposite parties filed their written statements wherein the opposite party/Insurance Company stated that the driver did not possess a valid driving license and that the claimant was required to prove his claim by proper documents and evidence. The learned Tribunal framed the following issues:- (i) Whether on 03.05.2008, the claimant sustained injuries as a result of rash and negligent driving of the vehicle bearing Registration No. AS-23-D-7333 is Ascent Car. (ii) Whether the claimant is entitled to get compensation, if so, to what extent and from whom? 4. After considering the evidence adduced by both the parties, the learned Tribunal decided both the issues in favour of the claimant. Page No.# 5/13 5. The learned Tribunal found that there was nothing to disbelief the disability certificate showing 90% disability which was exhibited as Exhibit 6. Though the claimant was said to be working as a Mason and earned Rs.6000/- per month by earning Rs.200/- per day, since there was no documents to prove his income, the learned tribunal calculated the notional income of the claimant/injured at Rs. 3,000/- per month. The age of the injured was taken as 26 years. The Tribunal calculated the loss of income by taking the disability as 30%, 3000 x 18 x 12 + 30% = Rs. 8,42,400/-. The claimant was also found entitled to get Rs. 50,000/- as pain and suffering and Rs. 50,000/- as additional charges, Rs. 41,510/- as medical expenses (as per vouchers) and Rs. 50,000/- was also granted for future medical expenses, since the vehicle was duly insured with the Insurance Company. It was ordered that the opposite party No. 3 present appellant/Bajaj Alliance General Insurance Company Ltd to pay Rs. 10,33,910/- only to the claimant with interest @ 6% per annum from the date of filing of the claim petition till realisation within 30 days from receipt of the order dated 24.04.2014. 6. Aggrieved by the award, Mr. R. Goswami, the learned counsel for the appellant Insurance Company in MAC App. No. 202/2014 and respondent Insurance Company in MAC App. No. 484/2018, submitted that the learned Tribunal, instead of making assessment of loss of future earning on the basis of assessment of loss of earning capacity, had considered the assessment of permanent disability as a loss of earning which is against the established principles laid down by the Apex Court for assessment of loss of future earnings. 7. The learned counsel for the appellant relied on the judgments of the Apex Court in Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. & Page No.# 6/13 Anr., reported in (2010) 10 SCC 343, wherein the Apex Court held that the learned Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability. The second step is to ascertain his vocation, profession and nature of his work before the accident as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood or (ii) whether in spite of the permanent disablement, the claimant could still effectively carry on the activities and functions he was earlier carrying on or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or continue to earn his livelihood. But the learned member did not determine the compensation in the manner as indicated above as a result of which a disproportionate compensation has been awarded by the Learned Tribunal. 8. Mr. R. Goswami, learned counsel thus submitted that while assessing the ability or the percentage of the permanent disability, the Schedule I or II of the Employees Compensation Act, 1923 should also be applied, wherein the guidelines as to how to assess the disability in relation to the working capacity of the injured person suffering from permanent disability is clearly listed out. 9. The learned counsel for the Insurance Company, Mr. R. Goswami, while submitting that the learned Tribunal should calculate the loss of future income in terms with the judgment and order of the Apex Court in Raj Kumar Vs. Ajay Kumar & Anr. (Supra), also submitted that the notional income Rs. 3000/- per month is not excessive since it was considered in the year 2014, wherein the income of Rs. 3000/- per month is a reasonable amount to be Page No.# 7/13 earned by Mason and further there is no evidence on documents to show that the claimant was actually earning his living as a Mason, which was also rightly observed by the learned Tribunal. 10. Mr. A.K. Gupta, learned counsel for the claimant, on the other hand submitted that the Employees Compensation Act is not applicable in a case which is filed under the Motor Vehicles Act. In MAC App. No. 484/2018, Mr. A.K. Gupta as the learned counsel for the appellant claimant, submitted that the notional income should be taken more than Rs. 3000/- per month since the claimant was earning Rs.200/- per day and a Mason is a skilled workman. 11. The learned counsel further submitted that the learned Tribunal had wrongly considered and calculated the loss of income by taking only 30% for permanent disability while the disability suffered by the claimant is shown as 90%. He submitted that the claimant was earning his livelihood as a Mason and thus, on the fracture of his limbs, considering the nature of his work, the future prospects should be calculated higher than 30%. 12. The learned counsel for the respondent has relied on the judgments of the Apex Court in Prakash Chand Sharma Vs. Rambabu Saini & Anr. in Civil Appeal Arising out of SLP(C) No. 3066 of 2024, wherein the Apex Court while calculating the loss of future income had taken the disability multiplier as 100%. He has also relied on the judgments of the Apex Court in Jagdish Vs. Mohan & Ors., reported in AIR 2018 Supreme Court 1347, wherein the Apex Court held that the benefit of future prospects should not be confined only to those who have permanent job and would extend to as employed individuals. Page No.# 8/13 13. I have considered the submissions made by the learned counsels for both the parties and I have also perused the documents on record. 14. It is not a disputed fact that on 03.05.2008, the claimant met with an accident, along with two other pedestrians, when a vehicle bearing registration No. AS-23-D-7333 (Ascent Car) driven in a rash and negligent manner, knocked them down from the back side. As a result of the said accident, the claimant sustained grievous injuries wherein he suffered 90% disability due to the accident. It is also not disputed that the accident vehicle was duly insured with the Bajaj Allianz General Insurance Co. Ltd. The Disability Certificate issued by the Medical Board of Nagaon District certifying that the appellant has suffered 90% permanent disability due to the injury suffered by him in the accident is not challenged in the appeal. The only issue that is under challenge is the quantum of the award amount and whether the principles laid down by the Apex Court in Raj Kumar Vs. Ajay Kumar & Anr. (Supra) has been followed by the learned Tribunal while making the assessment in calculating the future earnings of the claimant and whether the learned Tribunal had rightly taken the notional income of the claimant at Rs.3000/- per month when the claimant was said to be a Mason. 15. A perusal of the impugned judgment shows that the learned Tribunal had noted that the claimant suffered 90% disability in the accident, and by taking the notional income as Rs.3000/- , age of the claimant as 26 years and thus calculated the loss of income as Rs.3000/-X12X18 +30% = Rs.8,42,400/- plus the non pecuniary benefits. It is noted that the learned tribunal had erred in adding the 30% instead of multiplying the same. 16. It is seen that the Apex Court in Raj Kumar v. Ajay Kumar, Page No.# 9/13 (Supra) has laid down the General principles relating to compensation in injury cases as under: “5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. ……….. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based Page No.# 10/13 on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.” 17. The Apex court in Jagdish v. Mohan, (supra) also held that; “8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i) Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation of life. 13. In the judgment of the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680] , this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs 2400 towards loss of future prospects.” 18. Having regard to the observations and principles laid out by the Apex court as highlighted above and the submissions made by the learned counsels for both the parties, this court has also perused the documents on record and finds that it would be appropriate to reassess the impugned award dated 24.04.2014. 19. The injured claimant is said to be a Mason who is thus self- Page No.# 11/13 employed. The claimant stated that he earned Rs. 6000/- per month by earning Rs. 200/- per day. This Court finds that his claim that he was earning Rs.200/- per day cannot be simply discarded without any reason and finds that one cannot expect a person who earns his livelihood as a Mason to have an income certificate or any such document. This Court, however, finds that a person working as a Mason is also not expected to be engaged all 30 days of the month, thus, this Court finds it reasonable to increase the income of the claimant from Rs.3000/-to Rs. 5000/- per month which this Court finds would be a realistic assessment income on the date of the accident, in also considering the fact that the evidence recorded shows that the claimant is having his wife and two minor daughters dependent upon him. 19. On perusal of the case record, it is seen that the Disability Certificate is exhibited as Exhibit-9 and issued by the District Medical Board, Nagaon, Assam. Dr. Durgeswar Bora was examined as CW-4 to prove the Disability Certificate. On perusal of the Disability Certificate, it is seen that the claimant is said to suffer from ‘communited fracture in both tibial shaft, fracture right radius and right femur, 90% disable permanent’. The office of the Joint Director of Health Services Nagaon had also issued a certificate certifying the same, wherein, it was mentioned ‘Disability 90%’ and exhibited as Ext-6. 20. On perusal of the evidence of Dr. Durgeswar Bora, he had stated that the claimant sustained 90% disability on 03.05.2008. In his cross- examination, he has also stated that if physiotherapy is given, there might be some percentage improvement. This Court therefore finds that the claimant is also entitled to be given compensation for future treatment considering that there might be some percentage improvement if given the proper treatment. 21. On considering the nature of his disablement, it is also seen that he Page No.# 12/13 is certified to be 90% disabled on his suffering from communited fracture in both tibial shaft, fracture right radius and right femur right leg, thus it can be construed that the claimant had suffered the loss of the functioning of his right legs by 90%. It is thus seen that the disablement is not of the use of his whole body. It is also seen that the claimant was engaged as a Mason and thus for any manual activity, the use both his legs would be required. This Court, thus finds that a realistic and just compensation would be to increase the earning capacity from 30% to 40%. 22. This Court finds it fit to interfere with the award made by the learned Tribunal by enhancing the monthly income of the claimant to Rs. 5000/- per month, increase the earning capacity from 30% to 40%. The age of the claimant taken as 26 years is not disputed, the multiplier being 18. This court also find it appropriate to increase the compensation amount under the head Pain, shock and suffering and mental agony, from Rs.50,000 to Rs. 1,00,000/- Future loss of income due to disability is thus : = Rs.5000 x 12 x 18 X 40% = Rs. 4,32,000/- The total amount entitled with non pecuniary benefits would be : 1. Medical Expenditure- Rs. 41,510/- 2. Future Loss of income due to disability- Rs. 4,32,000/- 3. Attendant Charge- Rs. 50,000/- 4. Pain, Shock and suffering Page No.# 13/13 and mental agony - Rs. 1,00,000/- 5. Future medical expenses Rs. 50,000/- Total amount Rs. 6,73,510/- 23. In view of the above findings, the Bajaj Allianz General Insurance Co. Ltd. is directed to pay the awarded amount of Rs.6,73,510/-(Rupees Six lakhs seventy three thousand five hundred ten)only to the claimant with interest @ 6% per annum from the date of filing of the claim petition till realization of the said amount. The awarded amount is to be deposited into the Registry within a period of 60 days from the date of this order, for disbursement to the claimant after due verification. 24. Accordingly both the MAC Appeals, MAC App.No.202 of 2014 and MAC App. No.484 of 2018 stands disposed of as above. 25. TCR to be returned. JUDGE Comparing Assistant