1 2025:CGHC:16898 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 1082 of 2020 • Ajay Kumar Sen S/o Shri Shiv Kumar Sen Aged About 35 Years R/o Bhoipara, Thana - Purani Basti, Tahsil And District Raipur Chhattisgarh. ---Appellant/claimant VERSUS 1. Chandrashekhar Yadav S/o Panchram Yadav Aged About 44 Years Occupation Driver, R/o Dongargaon Sevatatola, Thana Dongargaon, District Rajnandgaon Chhattisgarh. (Driver) 2. Deelip Kumar Nahata S/o Ghebarchand Nahata R/o Kamthi Line, Rajnandgaon, Tahsil And District Raipur Chhattisgarh. (Owner) 3. The United India Insurance Company Limited Through Divisional Manager, Divisional Office, Krishna Complex, Kachehari Chowk Raipur, Tahsil and District Raipur Chhattisgarh. (Insurer) ----Respondents For Appellant : Mr. A.L. Singroul, Advocate For Resp. No. 1 & 2 : Ms. Laxmi Gupta, Advocate on behalf of Mr. Pragalbha Sharma, Advocate For Respondent No. 3 : Mr. Dashrath Gupta, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order on Board 11/04/2025 1. Challenge in this appeal is to the award dated 18.02.2020 passed by Learned 2nd Additional Motor Accident Claims Tribunal, Raipur, District Raipur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case no. 448/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) in part and awarded total sum of ₹ 5,88,000/- as compensation PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 in injury case. 2. Facts of the case relevant for disposal of this appeal are that on 17.11.2017, appellant Ajay Kumar while driving his vehicle motor cycle no. CG08-AG-0604 on his left side was going towards Rajnandgaon from village Tedesara. At around 10:00 pm, when he reached near Tedesara Chowk temple, non-applicant No. 1 driving his car no. CG08- S-1234 (henceforth “offending vehicle”) rashly and negligently hit the motor cycle of appellant from behind, due to which the appellant fell down on spot and suffered grievous injuries on his left leg, head and other parts of the body. He was admitted to the District Hospital Rajnandgaon for treatment and thereafter on the advice of the doctor, the appellant got himself treated at Chhattisgarh Hospital and Research Centre at Raipur. A report was registered in Police Station Somni District Rajnandgaon, on the basis of which a crime for alleged offence under Sections 279, 337, 338 IPC has been registered against non- applicant No.1. 3. Appellant filed an application under Section 166 of the Act of 1988 seeking ₹ 15,50,000/- as total compensation pleading therein that on the date of accident he was aged about 35 years an able bodied person, was working as a Guard at Tedesara liquor shop and earning Rs. 8,700/- per month. Due to the accident, the appellant's left leg's bone below the knee and left foot's heel and ankle were broken, due to which he is not able to do his work to earn his livelihood. His family members are dependents on his income. As also he expended about ₹ 4 Lakhs on his treatment. 4. Non-applicants No. 1 & 2/ Respondents No. 1 & 2-driver and the owner of the offending vehicle did not appear before the Claims Tribunal and 3 no reply has been filed on their behalf, therefore, they were proceeded ex parte. 5. Non-applicant 3/ Insurance Company submitted reply to claim application denying the pleadings made therein. It was further stated that the accident occurred due to negligence on the part of appellant himself, in alternate it is pleaded that accident happened due to the contributory negligence of the drivers of both the vehicles. In the accident, appellant suffered only simple injuries. It is further stated that on the date of accident, non-applicant No. 1/driver of the offending vehicle was not having a valid license and thereby has violated the terms and conditions of the insurance policy. Therefore, in such a situation, non-applicant No. 3 is not liable to pay any compensation, if any and pleaded for dismissal of application filed by appellant against the Insurance Company. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that appellant suffered injuries due to rash and negligent driving of offending vehicle by non- applicant No. 1 which is owned by non-applicant No. 2. Permanent disability of appellant was found to be proved to be extent of 25%. Breach of policy conditions, contributory negligence were not found to be proved. Tribunal upon assessing income of appellant as ₹ 7,000/- per month calculated the amount of compensation and awarded ₹ 5,88,000/- as total compensation with interest @ 7% p.a. from the date of filing of claim application. 7. Learned counsel for appellant would submit that Claims Tribunal erred in awarding meagre sum of compensation. He submits that appellant suffered fracture of bone near the wrist. The appellant has suffered 4 serious injuries in his right rib and right hand. He underwent surgery to join the bones of the appellant’s right leg and plates and screws have been implanted. As a result of the above injuries, the appellant has become permanently disabled, unable to do his daily work and walk. He submits that learned Claims Tribunal erred in assessing loss of earning of appellant to the extent of 25%, however, looking to the nature of injuries and period of treatment from 17.11.2017 to 04.12.2017, he has suffered 65% of loss of earning as also future growth in his earning. He submits that apart from medical bills, Tribunal awarded consolidated amount of ₹ 50,000/- on the heads of pain and sufferings, special diet, attendant and conveyance expenses which are on lower side. Hence, the amount of compensation be suitably enhanced. 8. Learned counsel for Respondents No. 1 and 2 would oppose the submission of learned counsel for appellant and further submitted that the amount of compensation awarded by learned Claims Tribunal is just and proper in the facts of the case, which does not call for any interference. 9. Learned counsel for Respondent No. 3-Insurance Company also supported the impugned award passed by learned Claims Tribunal. 10. I have heard learned counsel for the respective parties and also perused the record of claim case. 11. Perusal of record would show that the date of accident is 17.11.2017, accident took place at Tedesara chowk. After the accident, appellant took treatment as in-patient from 17.11.2017 to 04.12.2017 at District Hospital, Rajnandgaon and then Chhattisgarh Hospital and Research Centre, Raipur. Appellant in his statement has stated 65% of permanent disability on his leg on the basis of shortening of leg. From 5 perusal of the medical documents, statement of AW-2 Dr. J.S. Dhruv, Member of the District Medical Board and the disability certificate Ext. P-26 issued by District Medical Board, Rajnandgaon, it appears that the appellant suffered a fracture of tibia-fibula in his left leg and surgery was done, implanted a plate and screws, and it is also shown that he underwent continuous treatment during his treatment period. Shortening of leg is not found to be proved and the said disability was found to be related to a limb and not to the whole body, on the said basis, 65 per cent permanent disability to the appellant is not proved and held the permanent disability of appellant to the extent of 25%. 12. Hon'ble Supreme Court in case of Rajkumar v. Ajay Kumar and another reported in (2011) 1 SCC 343 has considered the assessment with regard to award of compensation in personal injury case resulting in permanent disability and held thus: “13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The 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 permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of 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 disability, the claimant could still effectively carry on the activities and functions, which 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 can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred 6 per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.” 13. In the aforementioned facts of the case, the learned Claims Tribunal has came to the conclusion that the appellant failed to prove his employment as Guard in the liquor shop and has treated the appellant to be doing the work of labourer for earning livelihood for himself and his family. Even if, the appellant is to be treated as Labourer or doing the work of Guard, it cannot be overlooked that he has suffered fracture of tibia-fibula as also the surgery was done implanting a plate. The work of Labourer is to do all kind of work including lifting of weight/heavy goods, he needs to move from one place to another continuously and considering the nature of work, the appellant will not 7 be in a position to do the work with the same efficiency with the disability suffered by him and therefore, in the opinion of this Court, it may be cause 25% loss of income for his entire life and therefore, the loss of income of the appellant is rightly assessed by the Tribunal as 25%. 14. 14. Learned Claims Tribunal based on the wages structure prevailing on the date of accident and price index has rightly assessed the monthly income to the tune of ₹ 7,000/- ie.,₹ 84,000/- per annum. 15. Hon’ble Supreme Court in the case of Chandramani Nanda vs. Sarat Chandra Swain & Anr. reported in 2024 SCC OnLine SC 2859 while considering the award of compensation towards the future prospects in the case of permanent disability has held that the claimant who suffer the permanent disability is also entitled for the loss of future prospects and held thus:- “ 14.3 However, the Tribunal and the High Court both have failed to consider the fact that the appellant is also entitled for enhancement on account of future prospects. Hence, in line with the law laid down in National Insurance Company Limited v. Pranay Sethi, given the age of appellant was 32 years at the time of accident, he is entitled to 40% future prospects.” In view of the aforementioned decision of the Hon’ble Supreme Court that where the injured/claimant suffered permanent disability, there should be addition of loss of future prospects based on the age of the deceased as held by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680. 16. In the case at hand, on the date of accident appellant was about 35 8 years of age. There will be addition of 40% of established income of appellant for assessing total income of appellant for purpose of calculating compensation. Upon adding 40% of the established income of the appellant, the total yearly income of appellant will come to ₹ 1,17,600/-. Upon applying multiplier of 16 (for the age group from 31 to 35 years) to the annual loss of dependency as per the decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121, total loss of dependency will come to ₹ 18,81,600/- [₹ 1,17,600x16]. As this Court has assessed the loss of earning of the appellant to the extent of 25% and therefore, 25% of the loss of income would come to ₹ 4,70,400 (25% of ₹ 18,81,600). Apart from the loss of income, appellant would also be entitled for the amount of compensation on other heads ie., medical expenses ₹ 1,30,939/-, loss of income of three months during treatment period ₹ 21,000/- and a consolidated amount of ₹50,000/- towards attendant, special diet and conveyance expenses, which in the opinion of this Court in the facts and circumstances of the case has rightly been awarded. In addition to that amount on the aforementioned heads, appellant-claimant shall further be entitled for a sum of ₹ 25,000/- towards loss of amenities and joy in life. 17. Now the appellant-claimant shall be entitled for ₹ 6,97,339/- [₹4,70,400+ ₹1,30,939+ ₹21,000+ ₹ 50,000+ ₹25,000] as total compensation instead of ₹ 5,88,000/- awarded by learned claims Tribunal. Aforesaid amount of compensation shall carry interest @ 7.5% p.a. from the date of filing of claim application till its realization. Any amount paid to appellant-claimant pursuant to the impugned award shall be adjusted from the amount of compensation as 9 calculated above. Other conditions of the impugned award shall remain intact. 18. In the result, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. Sd/- (Parth Prateem Sahu) Judge pwn