1 2025:CGHC:18097 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1143 of 2020 1. Aas Mohammad S/o Habib Aged About 50 Years R/o Farid Nagar, Nizami Chowk, Supela, Bhilai, Tahsil And District Durg Chhattisgarh., District : Durg, Chhattisgarh ... Appellant versus 1. Ku. Ruchika Sonpipare D/o Ramesh Kumar Sonpipare aged about 22 years R/o Kondagoan, Infront of High School, District Kondagaon (CG) Flat No. 409, Block A, Borasi, Bhilai, Durg (CG). (Owner & Driver of Scooter Activa No.CG07 AZ2967) 2. Iffco Tokio General Insurance Company Limited Bhilai, District Durg Chhattisgarh. (policy no. 1BJKBD3Y/ 68769483 (insurer of Scooter No. CG07 AZ2967), ... Respondent(s) For Appellant : Mr. Imran Siddiqui, Advocate on behalf of Mr. Mazid Ali, For Respondent No.1 : None For Respondent No.2 : Mr. P.R. Patankar, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 22/4/2025 1. Learned counsel for appellant submits that this is an admitted appeal, liability to satisfy the impugned award is fastened 2 upon respondent No.2 and respondent No.2 has not filed any appeal challenging the impugned award, therefore, service of notice upon respondent No.1, owner-cum-driver of vehicle, may be dispensed with and this appeal itself may be heard finally at motion stage. 2. Learned counsel appearing on behalf of respondent No.2- Insurance Company does not dispute that liability to pay compensation is fastened upon insurance company, which is not challenged by filing appeal. 3. In the above circumstances, service of notice upon respondent No.1 is dispensed with. 4. With the consent of the parties, this appeal is heard finally. 5. Appellant-claimant has filed this appeal seeking enhancement of compensation awarded by learned 2nd Additional Motor Accident Claims Tribunal, Durg (for short ‘the Claims Tribunal’) vide award dated 25.2.2020 passed in Claim Case No.399/2017 whereby learned Claims Tribunal has awarded a sum of Rs.2,72,050/- as compensation in an injury case. 6. Facts of the case, in brief, are that on 12.1.2017 at about 2- 2:30 p.m. in the afternoon, claimant-appellant was standing at left side of road near RTO Office, Durg to cross the road, at that time, respondent No.1 came driving her vehicle Activa bearing registration number CG07-AZ-2967, dashed the 3 claimant/appellant as a result he sustained injuries on his right leg, right hand, face and also fracture in bone of leg due to which he became permanently disabled. Accident was reported in Police Station Kotwali, Durg based on which offence was registered against respondent No.1 under Crime No.45/2017 for the alleged offence under Sections 279, 337 & 338 of IPC. 7. Claimant/appellant herein filed an application before the Claims Tribunal seeking compensation to the tune of Rs.41,00,000/- under various heads inter alia on the ground that due to incident he has suffered permanent disablement, he is not able to do the work as he was doing prior to accident and thus suffered loss of income. 8. Respondent No.1 did not appear before the Claims Tribunal, therefore, she was proceeded ex-parte. 9. Respondent No.2- Insurance Company submitted its written statement denying the averments made in claim application including that offending vehicle was driven by its driver in a rash and negligent manner. It was pleaded that accident in question occurred on account of negligence of appellant. Appellant has not produced disability certificate issued by the Medical Board. Information of accident was not given to insurance company and even the report of accident was lodged after two days of accident. In these circumstances, the 4 appellant is not entitled for any compensation. 10.The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties, arrived at a finding that accident was a result of rash and negligent driving of respondent No.1, there was no violation of any conditions of insurance policy. Partly allowed application of appellant, awarded compensation of Rs.2,72,050/- together with interest @ 7% p.a and fastened liability to pay the amount of compensation upon insurance company. 11. Learned counsel for the claimants/appellant submits that the appellant has specifically pleaded that at the time of accident, he was employed as Driver under M/s I.A. Dhas and in support thereof produced wage slip (Ex.P-7), however, while assessing income of appellant the Claims Tribunal has not added the amount deducted towards PF and ESIC. Further, at the time of accident, appellant was driver and he suffered permanent disability in his right leg, therefore, the Claims Tribunal ought to have assessed loss of earning capacity of appellant @100%. He further submits that the compensation awarded under heads like attendant, nutritious diet, pain and sufferings, is on lower side. He submits that disability is to tibia and fibula bone of right leg, has caused great inconvenience to appellant in enjoying amenities and 5 comforts in life, but nothing has been awarded for loss of amenities and comfort in life. He further contended that looking to the nature of injuries caused to appellant in the accident, future treatment is also required, but the learned tribunal did not consider this aspect and has not awarded any amount towards future treatment. Therefore, he prays that compensation be enhanced suitably. 12. Per contra, learned counsel for respondent No.2 Insurance Company opposing the submissions made by learned counsel for appellant, would submit that disability certificate (Ex.A-46) which certifies that appellant suffered 19% disability, has not been issued by the Medical Board or the treating doctor and therefore, the appellant is not entitled for compensation for 15% disability. The amount awarded by the Tribunal under different heads are not meager. The appellant has not made out any case for enhancement of compensation and prayed for dismissal of the appeal. 13. Heard learned counsel for the parties and perused the record of claim case. 14. So far as income of appellant is concerned, the Claims Tribunal assessed monthly income of appellant at Rs.8,552/- placing its reliance on wage slip (Ex.A-7). A glance of wage slip would show that net amount of wages paid to appellant for the month ending November 2016 is mentioned as 6 Rs.8,552/-. This wage slip depicts various debits from the wages including towards PF and ESIC. The Claims Tribunal failed to add above deductions while calculating monthly income of appellant. In Sunil Sharma and others vs. Bachitar Singh and others, reported in (2011) 11 SCC 425, Hon'ble Supreme Court has held that deduction towards EPF and GIS should have been added back to the income of the deceased while assessing his monthly income for the purpose of computing compensation. Therefore, amount deducted from salary towards PF and ESIC to the tune of Rs.1002/- (839+163) is also to be added in the monthly income. Accordingly, this Court holds that appellant was getting a sum of Rs.9,554/- (8552+1002) as wage/ salary. 15. From the material and evidence available in record of claim case it can be seen that appellant in this appeal had sustained fracture injury to shaft tibia fibula bone of his right leg and tibia interlocking was done. Injuries sustained by appellant and treatment taken by him are evident from the admission form (Ex.A-2), disability certificate (Ex.A-46) etc. The Claims Tribunal considering disability certificate (Ex.A-46) issued by Dr. S.D. Bhupendra (AW2) had assessed the disability to the extent of 15%. 16. It is true that disability certificate (Ex.A-46) was not issued by authorized medical officer or board or the doctor who treated 7 the appellant. Be that as it may, Dr. S.D. Bhupendra (AW2), author of certificate, was examined before the Claims Tribunal and he has proved disability certificate. He in his evidence stated that after making clinical examination and taking into account x-ray reports etc., he assessed permanent disability of appellant to the extent of 19%. He has stated about joining of tibia and fibula bone of right leg and lower part of radius bone of right hand in crooked manner. In the cross- examination, this witness has denied the suggestion about healing of injury of injured from physiotherapy and other mode of treatment after a period of one year. He further deposed that percentage of disability assessed by him is not in respect of whole body of injured and percentage of disability may decrease. Nothing contrary could be brought in his cross- examination to disbelieve the version of AW-2. Hence, being a doctor and an expert, evidence of AW-2 with respect to disability of appellant is to be accepted in absence of any contrary evidence to disbelieve the evidence of an expert. Accordingly, disability certificate (Ex.A-42) is acceptable and can be taken into consideration for assessment of the extent of disability. 17. So far submission of learned counsel for appellant that disability of appellant be taken as 100% in relation to his earning capacity, is concerned, perusal of material on record 8 would show that the appellant has not proved his avocation of driving by cogent evidence. The employer of appellant under whom he was employed as driver or any document showing his occupation as driver has not been placed on record and proved by appellant to establish that he was a driver by profession. In the wage slip (Ex.A-7) also nothing has been mentioned against the heading ‘nature & location of work’. Even during examination-in-chief of Dr. S.D. Bhupendra (AW- 2), who had issued disability certificate (Ex.A-46), no suggestion was put to him on behalf of the claimant-injured that disability in question has in fact rendered him completely incapable to drive any vehicle in future. There is nothing on record to show that the petitioner was a driver by profession. Mere submission on behalf of appellant does not lead to an inference that he was a driver by profession unless there is some corroborative evidence to prove that fact. In such a situation, this Court is of the considered opinion that assessment of permanent disability to the extent of 15% by the Claims Tribunal considering statement of the doctor (AW- 2) that there could be 4-5% decrease in disability, does not require any interference. 18. The Claims Tribunal awarded a sum of Rs.9,000/- under the head of nutritious diet and a sum of Rs.3,000/- for medical attendant, which in the opinion of this Court is on lower and 9 accordingly, the appellant is awarded Rs.15,000/- towards special diet and Rs.5,000/- medical attendant. Due to the accident, appellant had suffered mental agony, pains and other sufferings and would have to suffer during his whole life time as he had received permanent disability, therefore, I deem it appropriate to award a sum of Rs.25,000/- under the head ‘mental agony, pains and suffering’ instead of Rs.10,000/- as awarded by Claims Tribunal. Looking to nature of injuries sustained by appellant, he would not be able to enjoy the amenities of life as a normal person can. The disability suffered by him would also have an impact on his social and married life. Therefore, in given facts and circumstances of case, I deem it proper to award a sum of Rs.30,000/- to the appellant towards loss of amenities and comforts in life. It is ordered accordingly. 19. For the foregoing reasons, this Court proposes to recompute the amount of compensation payable to the appellant. 20. Accordingly, the income of appellant is taken as Rs.9,554/- and after adding 10% towards future prospects, the annual income of appellant comes to Rs.1,26,108/- (9554+10% of 9554 x 12). Applying multiplier of 9, as applied by the Claims Tribunal, total income comes to Rs.11,34,972/-. As held by Claims Tribunal and affirmed by this Court in preceding paragraph that appellant suffered 15% loss of earning 10 capacity, loss of income suffered by appellant would come to Rs.1,70,245/- (1134792x15%). Besides this, appellant is entitled for Rs.25,000/- towards pain and suffering; Rs.15,000/- for special diet; Rs.5,000/- for medical attendant; Rs.30,000/- for loss of amenities and comforts in life. In addition to aforementioned amount of compensation, appellant-claimant will also be entitled for Rs.72,006/- towards medical expenses and Rs.25,656/- for loss of income during period of treatment, as awarded by the Claims Tribunal. Now, the appellant is entitled for a total compensation of Rs.3,42,907/- (170245 + 72006 + 25656 + 25000 + 30000 + 15000 + 5000) in place of Rs.2,72,050/-, as awarded by Claims Tribunal. This amount of compensation shall carry simple interest @ 7.5% p.a. from the date of filing of claim application till its realization. 21. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount already paid to appellant as compensation shall be adjusted from the total amount of compensation as calculated above. 22. In the result, the appeal is allowed in part and the award impugned stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/- SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI