-1- 2025:CGHC:27189 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1240 of 2019 Bholanath Mishra S/o Ramashankar Mishara Aged About 35 Years R/o Village Pipari (Khalsa), Post Office Saraiganai, P.S. Kanhai Hanuman Ganj, Tahsil Raniganj, District- Patapgarh, Uttar Pradesh............. (Claimant) ... Appellant (s) versus 1 - Dinesh Kumar Mishra S/o Ramashanar Mishra R/o Village Pipari (Khalsa), Post. Office Saraiganai, P.S. Khanhai Hanuman Ganj, Tahsil Raniganj District- Patapgarh, Uttar Pradesh............(Driver Of Vehicle Volvo No. C.G. 04/J.A./3194), 2 - M/s Vimal And Sans (H.U.F.) Address House No. 135, Near Anand Talkies Sky Plaza New Bambe Market Raipur, Tahsil And District- Raipur, Chhattisgarh, Through The Vimal Kumar Jain, S/o Akhram Jain..............(Owner Of Vehicle Volvo No. C.G. 04/J.A. 3194) 3 - The New India Insurance Company Ltd. Through The Branch Manager The New India Insurance Company Ltd. Kachahri Chowk Jail Road Raipur, District- Raipur, Chhattisgarh...........(Insurer Of Vehicle Volvo No. C.G. 04/J.A. 3194) ... Respondent(s) ________________________________________________________ For Appellant (s) : Mr. Amiyakant Tiwari, Advocate with Ms. Mamta Patel, Advocate For Resp. No. 1 : None appears though served For Resp. No.2 : Mr. Ashish Pandey, Advocate on behalf of Mr. Vivek Chopda, Advocate For Respondent No.3 : Mr. Shivendu Pandya, Advocate _______________________________________________________ Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.07.01 10:15:03 +0530 -2- S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 24/06/2025 1. This is the claimant’s appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned VIII Additional Motor Accidents Claims Tribunal, Raipur (CG) vide award dated 28.02.2019 passed in Claim Case No.756 of 2016. 2. Facts relevant for disposal of this appeal are that applicants/claimants filed an application under Section 166 of the Act of 1988 before the learned VIII Additional Motor Accident Claims Tribunal, Raipur, pleading therein that in the intervening night of 31.05.2008 and 01.06.2008 at about 3.30 a.m., near Tilda Kharora Road rear tyre of the vehicle Volvo No. CG 04 JA 3194 got punctured, which was carelessly parked by non-applicant No. 1 on the road on a slope without applying brakes and non-applicant No. 1 asked the applicant to change the wheel of the vehicle Volvo No. CG 04 JA 3194 by means of a jack. When applicant was putting jack, the vehicle suddenly moved forward, it ran over both the thighs of the applicant. Due to running of the vehicle over both the thighs of the applicant, the leg bone got crushed and the testicle also got injured. Skin between the wrist and elbow of his left hand was torn. Besides this, he suffered injuries on other parts of his body due to which he became permanently disabled. At the time of accident, the applicant was a 28- year-old healthy man and sole earning member of his family, was working as a Cleaner in a Volvo KCG 04 JA 3194 and was earning monthly -3- income of Rs. 4,000/- and was maintaining his family. The applicant has become permanently disabled, due to which, serious problem of maintenance has arisen before him and he is facing extreme financial, physical and mental sufferings, which cannot be measured in money. He prayed for a total compensation amount of Rs. 13,16,000/- from the non- applicants. 3. Non-applicant No.1 by filing his written statement has denied all the facts pleaded in the claim application and submitted that on the date accident, offending vehicle was insured with non-applicant No.3. Hence, he is not liable for any kind of compensation, the responsibility of paying the entire compensation amount lies with non-applicant No.3 4. Non-applicant No.2 in his written statement stated that on the date of the accident, offending vehicle was insured with the non-applicant No.3, hence, he is not liable to pay any kind of compensation, the liability of paying the entire compensation amount lies with non-applicant No.3. 5. Non-applicant No.3 in its written statement pleaded that applicant himself was negligent and did not take care while removing the wheel of the truck parked on the side of the road. Apart from the driver of the insured vehicle, no premium was paid by the vehicle owner for any other worker/helper . Non-applicant was not having valid and effective driving licence to drive the offending vehicle at the time of accident which is in violation of conditions of insurance policy. Therefore, non-applicant No.3 is not alible to pay any amount of compensation and claim against non-applicant No.3 be dismissed. 6. Learned Claims Tribunal, on appreciation of pleadings and evidence -4- brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1 rashly and negligently, caused accident, in which appellant/claimant sustained grievous injuries, suffered permanent disability. Recording a finding that breach of the conditions of insurance policy was not found proved, learned Claims Tribunal held non-applicants liable to pay amount of compensation to claimant. Learned Claims Tribunal assessing monthly income of the appellant/claimant as Rs.3,000/- and calculating the loss suffered by the claimant under different heads, awarded total amount of compensation of Rs.7,64,187/ -. 7. Learned counsel for the appellant/claimant submits that learned Claims Tribunal though considered that claimant/appellant suffered permanent disability, however, even after considering the medical documents and disability certificate submitted before Claims Tribunal, it assessed the loss of earning capacity to the extent of 60% only. He contended that in facts of case looking to the nature of injuries and amputation, learned Tribunal ought to have assessed the loss of earning capacity of claimant/appellant to the extent of 80% as on the date of accident, appellant/claimant was working as Cleaner in the truck and while performing his duty, he met with an accident and suffered injury including permanent disability. As per evidence available on record both of his legs came under the wheel of truck, he suffered crushed injury over both legs and waist. However, while awarding compensation under other heads learned Claims Tribunal has not taken into consideration the aforementioned aspects. Learned Claims Tribunal has not awarded amount of proper compensation to the claimant/appellant in the facts of case. Hence, amount of compensation -5- be suitably enhanced. 8. On the other hand, learned counsel for the respondent No.3/Insurance company vehemently opposes the submission of learned counsel for the appellant and would submit that learned Tribunal justified in assessing loss of earning capacity of appellant/claimant to the extent of 60% which cannot be said to be erroneous more so when doctor issuing the certificate has not been examined before the Tribunal. He next contended that learned Claims Tribunal has awarded compensation on all heads for which claimant /appellant is entitled for. Amount of compensation awarded by learned Claims Tribunal is just and fair which does not call for any interference. 9. Learned counsel for respondent No.2 also adopting the submission of learned counsel for the respondent No.3 submits that amount of compensation awarded by learned Tribunal is just and fair and it does not call for any interference. 10. I have heard learned counsel for the parties and also perused the records of the claim case. 11. Perusal of the impugned award would show that learned Tribunal in para- 13 of its award considering the evidence of Dr. Shridhar Rao, recorded in a case filed before the Labour Court, has recorded a finding that claimant/appellant suffered 60% permanent disability and the disability certificate is also filed before the Claims Tribunal as Ex.P-6 and also considered the Ex. P-6 which is disability certificate issued by the Medical Board. Discharge Summary filed by claimant as Ex.P-11 would show nature of injuries suffered by claimant and also diagnosis done by Modern -6- Medical Institute, Raipur and procedure adopted, which reads as under: “Procedure: 1] Exploration and Repair or Perineal Wound over drain on 31.05.2008. 2] Below Hip guillotine amputation on 02.06.2008. 3] Flap cover + SSG of amputated stump on 23.07.2008. Diagnosis: Lacerated wound over perineal region with crush injury, lower abdomen and thigh leading to arterial thrombosis of External iliac, femoral vessels with fracture shaft femur with LW left forearm. x x x Left Thigh- Swelling, deformity, bony tenderness, Clour changes below grain. Left Forearm- LW over flexor aspect 8” x 2 muscle deep, oozing & contamination.” Deep LW over right inguino-scrotal perineal region, penile echoposis extending upto anal canal. Bleeding ++. Penile tip bleeding ++. 12. From the aforementioned evidence it is appearing that amputation of left leg was done on 02.06.2008 with below hip guillotine amputation . It also mentions that claimant/injured also complained pain, swelling wound deformity over left thigh. In the evidence of Dr. Ajay Kumar Parashar (AW2) it has come that appellant took treatment in Modern Medical Institute, Raipur and he suffered injury on his anus which shows that the appellant suffered injury on his both legs including the waist portion. Looking to the place of amputation i.e. below hip and also taking note of the Schedule -I, Part-II of the Employee’s Compensation Act, 1923 mentioning the disability to the extent of 70%, is for amputation of one leg, -7- learned Tribunal erred in assessing loss of earning capacity to extent of 60% only. Appellant/claimant apart from amputation of one leg below hip he suffered other serious injuries on other parts of body in left leg with deformity. Accordingly, finding recorded by learned Tribunal holding the appellant to have lost earning capacity to the extent of 60% is not sustainable and it is accordingly set aside and it is held that appellant suffered loss of earning capacity of 80% as mentioned in disability certificate. It is ordered accordingly. 13. Next ground raised by learned counsel for the appellant is with regard to assessment of income of appellant/claimant as Rs.3,000/- per month only. From the manner in which accident took place and evidence available on record it is appearing that appellant/claimant while working as Cleaner and was putting jack towards rear wheel of offending vehicle it slipped and vehicle ran over the legs of appellant which shows that at the time of accident also, applicant was working as Cleaner on the offending truck. 14. In the aforementioned facts of case, income of appellant/claimant is to be assessed not treating him to be unskilled labourer but somewhat more and accordingly I find it appropriate to assess income of applicant as Rs.4,000/- per month . It is ordered accordingly. 15. As the appellant has suffered 80% towards loss of earning capacity, there shall be addition of 40% of the assessed income towards future prospects. It is ordered accordingly. The appellant/claimant at the time of accident was aged about 28 years, therefore, instead of 16, there shall be application of multiplier of 17 as held by Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation -8- and Anr. (2009) 6 SCC 121. It is ordered accordingly. Claimant shall further be entitled of Rs.2,30,347/- as medical expenses as observed by learned Tribunal. 16. Learned Claims Tribunal has awarded lump-sum amount of Rs.50,000/- towards ‘pain and suffering’, ‘special diet’ and ‘attendant’ which in the opinion of this Court is much on lower side. Looking to the nature of injury suffered by appellant/claimant, in the opinion of this Court, the appellant/claimant is entitled for Rs.50,000/- towards ‘pain and suffering’, Rs.25,000/- towards ‘special diet’. Considering the period of treatment i.e. 31.05.2008 to 18.08.2008 and further that appellant might have taken the help of other person for couple of months thereafter and, therefore, I find it appropriate to award Rs.18,000/- for attendant for period of 6 months. It is ordered accordingly. Appellant/claimant due to injury suffered by him would not be able to enjoy his rest of life like an ordinary person and therefore I find it appropriate to award Rs.50,000/- towards loss of amenities in life. 17. In the aforementioned facts of the case, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation 1. Loss of Income (A) Income 4000 x 12 = 48000 (B) Addition towards future prospects @ 40% (48000 x 40% =19200) 48000+19200 = 67200 (C) Loss of earning capacity of 80% ( 67200 x 80 % =53760) : Rs. 9,13,920 -9- (D) Multiplier of 17 53760 x 17 = 9,13,920 2. Medical Expenses : (+) Rs. 2,30,347 3. Pain and Suffering : (+) Rs. 50,000 4. Special Diet : (+) Rs. 25,000 5. Attendant (+) Rs. 18,000 6. Loss of Amenities in Life : (+) Rs. 50,000 Total compensation Rs. 12,87,267 18. Now the appellant/claimant is awarded total compensation of Rs.12,87,267/- instead of Rs.7,64,187/- as awarded by the Claims Tribunal. 19.Aforementioned total amount of compensation shall carry interest @ 7% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact. 20. In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above. Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen