1 2025:CGHC:29038 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1664 of 2019 1 - Jamshed Ansari S/o Shri Kuddus Ansari Aged About 12 Years R/o Village - Gurdi, Post Okhargada, Police Station And Tehsil Garwah, District Garwah (Jharkhand). Appellant Is A Minor And Is Represented By The Natural Guardian (Father) Kuddus Ansari, S/o Mohd. Ismael Ansari, Aged About 44 Years, R/o Village Gurdi, Post - Okhargada, Police Station And Tehsil Garwah, Distict Garwah (Jharkhand). (Claimant), District : Garhwa *, Jharkhand ... Appellant Versus 1 - Rohsan Lal Tiwari S/o Shri Budun Lal Tiwari Aged About 49 Years R/o Behind Kali Mandir, Tifra, Police Station Sirgitti, Tehsil And District Bilaspur Chhattisgarh. (Driver Of The Offending Vehicle). (Claimant No. 1), District : Bilaspur, Chhattisgarh 2 - Tejinder Singh Siddhu S/o Shri Vasan Singh Siddhu R/o (Wrongly Typed As Vici In Place Of Resident) C/o Dhananjay Kumar, Qtr. No. B - 1470, Sector - 2, Dhurva, Police Station And Tehsil - Dhurva, District Ranchi (Jharkhand). (Owner Of The Offending Vehicle)., District : Ranchi, Jharkhand 3 - The Oriental Insurance Company Limited Through Its Branch Manager, Branch Office Ambedkar Chowk, Ambikapur, District Sarguja Chhattisgarh. (Insurer Of The Offending Vehicle)., District : Surguja (Ambikapur), Chhattisgarh ... Respondents For Appellant : Mr. Rishi Sahu, Advocate For Respondent No. 3 : Mr. Anil Gulati, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 30/06/2025 1. This appeal is filed by the appellant seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal in its SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 award dated 29.06.2019 passed by the Motor Accident Claims Tribunal (F.T.C), Ambikapur, District – Sarguja (C.G.) in Claim Case No. 14/2017. 2. Facts of the case in brief are that, on 24.05.2015, the applicant boarded Mahindra Bus bearing registration no. JH 01 BA 7207 (hereinafter for brevity referred to as the offending vehicle) at Village Godhwa for Katghora, District - Korba. On 25.05.2015, it met with an accident. In the accident, claimant suffered grievous injuries. Subsequent to the accident, a crime was registered against the Respondent No. 1 bearing Crime No. 256/2015 at Outpost – Manipur, P.S. Ambikapur, District – Sarguja for the alleged offences punishable under Sections 279, 337, 338 of the Indian Penal Code, 1860. 3. The applicant/claimant in his claim application have pleaded that on the date of accident, he was aged about 13 years, due to the injuries suffered in the motor vehicular accident, he suffered permanent disability and therefore, he is facing difficulties in performing his work and needs one attendant to perform day to day activities. He claimed a sum of Rs. 5,56,396/- as compensation from the non-applicants with an interest @ 9% per annum. 4. The Non-Applicants No. 1 & 2 submitted reply to the claim application denying the submission of the claimant/applicant and pleaded that the offending vehicle did not met with any accident on 25.05.2015 rather, the Non-Applicants No. 1 & 2 have been falsely implicated in the said case. It is further pleaded that the Non-Applicant No. 1 is a skilled driver, was possessing valid and effective driving license on the date of accident. There was valid permit of the bus and the vehicle was insured with the Respondent No. 3 on the date of accident. The liability to 3 satisfy the amount of compensation will be upon the Non-Applicant No. 3. 5. The Non-applicant No. 3 also submitted its reply to the claim application opposing the submissions of the claimant and the Non- Applicants No. 1 & 2 and pleaded that the said vehicle was being plied in breach of conditions of insurance policy. There was no valid permit and fitness of the offending vehicle as also, Non-applicant No. 1 was not possessed with valid and effective driving license. Further, the claimant did not suffer permanent disability and the vehicle was carrying more passengers than its seating capacity. Therefore, the Non-applicant No. 3 is not liable to satisfy the amount of compensation. 6. Learned Claims Tribunal on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was driven by the Non-Applicant No. 1 rashly and negligently causing accident in which, the claimant Jamshed Ansari suffered grievous injuries. Recording a finding that due to the injuries suffered in the accident, the applicant suffered permanent disability and hled non-applicants liable to pay the amount of compensation. Assessing income fo the appellant/claimant as Rs. 30,000/- per month, calculated amount of compensation under different heads, awarded compensation of Rs. 05,56,396/-. 7. Learned counsel for appellant submits that the learned Claims Tribunal erred in awarding meagre amount of compensation in a permanent disability case, where the appellant/claimant suffered permanent disability to the extent of 70%. The Tribunal has erroneously assessed loss of income of 70% only instead of 100%. The appellant suffered Tremetopalja on both of his legs which was due to the fracture on the spinal bone. He next contended that the 4 learned Claims Tribunal has awarded meagre amount of compensation towards special diet, conveyance and attendant. The Claims Tribunal has not awarded compensation under the head of loss of future prospect. 8. On the other hand, learned counsel for the Respondent No. 3 vehemently opposes the submission made by the counsel for the appellant and would submit that the learned Claims Tribunal considering the age of the appellant as 13 years on the date of accident has computed the amount of compensation and have sufficiently awarded under the head of loss of income. The amount of compensation awarded on other heads is also just and proper which does not call for any interference. 9. I have heard learned counsel for the parties and perused the records of the claim case. 10.Perusal of the record would show that the appellant suffered motor accidental injuries on 24.05.2015, he was admitted to District Hospital Ambikapur and as per Ex. P/5, she was discharged on 25.05.2015 against the advice of the Doctor in which, nature of injury is mentioned as Thorasic spinal regional of back. Medical documents enclosed along with the claim case would further show that the appellant took treatment from different hospitals, including Shri Jagarnath Hospital and Research Centre, Ranchi, Mittal Hospital, Raipur and Christian Hospital, Vellore. When the injury suffered by the appellant could not be cured appropriately, he approached the District Medical Board for obtaining Permanent Disability Certificate, Garhwa, Jharkhand. The Medical Board issued Disability Certificate mentioning permanent disability of 100% vide Ex. P/143. 5 11. The claimants have examined Dr. Nandkishore Rajak, AW-2. In his evidence, he stated that when the appellant approached to the Medical Board for obtaining Disability Certificate, they found spinal injury. There was fracture of L-1 and L-2 of spinal bone, both the legs suffered with Tremetopalja. Due to the aforementioned disability suffered by the applicant/claimant on both of his legs, he is unable to move himself. He found traumatic paraplegia on his both legs. 12.Hon'ble Supreme Court in case of Rajkumar v. Ajay Kumar and another reported in (2011) 1 SCC 343 has considered that what will be the percentage of loss of earning capacity in view of the permanent disability suffered by any person considering the part of the body affected as also, the nature of occupation and held thus: “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. 6 [See C.K. Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)] .]. 6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss 7 of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (iii)—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages— Items (iv), (v) and (vi)—involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decisions of this Court and the High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a). We are concerned with that assessment in this case.” 13.Hon’ble Supreme Court in the case of Rekha Jain Vs. National Insurance Co. Ltd. reported in (2013) 8 SCC 389 has observed as under:- “53. For a film actress, the physical appearance particularly the facial features are very important to act in the films and in TV serials. It is in her evidence that on account of the accident her face was disfigured, she has put on weight and has become fat and therefore she is unable to perform the role as an actress in films in future. Having regard to the nature of vocation she has been carrying on and wishes to carry on with in future, the opportunity is lost on account of the disfigurement of her face, to act in the films as an actress either as a heroine or actress in supporting role or any other role to be played in TV serials, albums and also as a model. It is in the evidence of the appellant that as per the District Medical 8 Board of Sambalpur, her permanent disability is 30%. Having regard to the nature of injuries and observations made by this Court and the Karnataka High Court in the cases referred to supra, we have to record a finding of fact that the appellant's permanent disability should be treated as 100% functional disablement as she cannot act in the films and in TV serials in future at all. Therefore, on account of the aforesaid reasons, she has suffered functional disability 54. In this regard, it is relevant to refer to the judgment of this Court in National Insurance Co. Ltd. v. Mubasir Ahmed [(2007) 2 SCC 349 : (2007) 1 SCC (L&S) 643] . This Court has held that loss of earning capacity is not a substitute for percentage of physical disablement. It is simply one of the factors taken into account to award just and reasonable compensation. Even though the claimant does not suffer from 100% physical permanent disability, he suffers from 100% functional disability if he loses the capacity to pursue his work as a result of the accident. It is worthwhile to extract para 8 from the aforesaid judgment which reads as under: (SCC p. 354) “8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. 55. In Palraj v. North East Karnataka RTC [(2010) 10 SCC 347 : (2010) 4 SCC (Civ) 174] , where the appellant was a driver, this Court held that although the appellant has lost the use of his legs, the same amounts to total disablement as far as driving a vehicle is concerned. 58. In view of the aforesaid decisions of this Court and various courts and the High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, 9 TV serials, etc. that her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages.” 14.Hon’ble Supreme Court in the case of Master Ayush Vs. Branch Manager, Reliance General Insurance Co. Ltd. & Anr. reported in (2022) 7 SCC 738 has observed as under:- “7. It was also argued that in a judgment reported as Kajal v. Jagdish Chand [Kajal v. Jagdish Chand, (2020) 4 SCC 413 : (2020) 3 SCC (Civ) 27 : (2020) 2 SCC (Cri) 577] , the injured was a 12-year-old girl who had suffered an injury to the extent that her IQ got less than 20% as compared to a child of her age and the medical board had assessed her social age to be only of a 9-month-old child. This Court had recognised that Schedule II of the Act could be used as a guide for the multiplier to be applied in each case. This Court in the aforesaid case held as under: (SCC pp. 419, 421 & 426, paras 6, 12 & 27). “6. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Act enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, the compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or 10 damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages. *** 12. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guesswork and conjecture. An assessment, as best as can, in the circumstances, should be made. *** 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Hers is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the 11 pain and suffering of this child should be at least Rs 15,00,000.” 15.In the case at hand, the appellant suffered Tremetopalja on both of his legs and is affected from the waist. In the aforementioned facts of the case, the loss of earning capacity as assessed by the learned Claims Tribunal cannot be found faulted with and accordingly, the loss of earning capacity as assessed by the learned Claims Tribunal is affirmed as 70%. 16.So far as the computation of the income of the applicant aged about 13 years is concerned, the learned Claims Tribunal has assessed the income of the applicant as Rs. 30,000/- per month which, in the opinion of this Court is very less. Hon’ble Supreme Court while computing the amount of compensation in the case of death of the minor child aged about less than 10 years in an accident which occurred prior to the year 2000, has assessed the income of the minor as Rs. 30,000/- per month notionally for computing the suitable compensation. In the case at hand, the accident is of the year 2015 and therefore, the income of the appellant has to be enhanced accordingly. 17.Hon’ble Supreme Court in the case of Master Ayush Vs. Branch Manager, Reliance General Insurance Company Limited & Anr. reported in (2022) 7 SCC 738 while considering the award of compensation in the case of disability assessed the income of minor child notionally and it is further held that the income of the claimant child is to be assessed taking note of the minimum wages prevailing on the date of accident. In the case at hand, the minimum wages prevailing on the date of accident i.e. 24.05.2015 of the Unskilled Labourer is Rs. 5,517/- per month, hence, I find it appropriate to assess 12 the income of the applicant as Rs. 5,517/- per month. It is ordered accordingly. 18.The learned Claims Tribunal has not added any amount of compensation under the head of loss of future prospects. Hon’ble Supreme Court in the case of Sidram Vs. Divisional Manager, United India Insurance Company Limited & Anr. reported in (2023) 3 SCC 439 has observed that in the cae of permanent disability, there shall be addition of the future prospects. Hence, I find it appropriate to add 40% of the assessed income towards the loss of future prospects. It is ordered accordingly. 19.In the facts of the case and discussions as observed, I find it appropriate to re-compute the amount of compensation. 20.Accordingly, the monthly income of the deceased is taken as Rs.5,517/-, the income of minor deceased is required to be enhanced by 40% towards future prospects, which comes to Rs.7723.8/- (5517+2206.8). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs.92,685.6/- (7723.8 x 12). The appellant is aged about 13 years and therefore, the multiplier of 18 as held by the Hon’ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121 would be applicable, which makes the total income of the deceased as Rs. 16,98,624/- (94,368 X 18). As this Court has assessed the loss of earning of the appellant to the extent of 70%, therefore, the 70% of the loss of income would come to Rs. 11,89,036.8/- (70% of 16,98,624). 21.There shall be addition of Rs. 1,61,396/- towards the medical expenses as found proved by the Claims Tribunal, however, the learned Claims 13 Tribunal has awarded only Rs. 2,000/- towards the special diet and Rs. 2,000/- towards attendant which, in the opinion of this Court is on lower side. Looking to the nature of injuries suffered by the appellant, i.e. permanent disability to the extent of 70%, I find it appropriate to award Rs. 20,000/- towards the special diet and further, considering the fact that the appellant was taken by his parents to different hospitals for treatment including the Shri Jagarnath Hospital and Research Centre, Ranchi and further, Mittal Hospital, Raipur, Christian Hospital, Vellore where he took treatment as inpatient for a considerable time, and will require attendant for long time in his future life, I find it appropriate to award lump-sum compensation of Rs. 2,00,000/- towards the attendant and Rs. 30,000/- towards the conveyance expenses. It is ordered accordingly. 22.Learned Claims Tribunal has awarded Rs. 70,000/- towards the pains and sufferings, which in the facts of the case, age of the appellant and the nature of the disability suffered by him is enhanced to Rs. 1,00,000/-. Further, the claimant has not been awarded any amount of compensation towards the loss of amenities in life and loss of marriage prospects. In the facts of the case, I find it appropriate to award Rs. 1,00,000/- towards the loss of amenities in life and Rs. 1,00,000/- towards the marriage prospects. It is ordered accordingly. 23.Now, the appellant/claimant will be entitled for the total amount of compensation which is as under:- • Rs. 1900432.8/- [11,89,036.8 (loss of earning capacity) + 1,61,396 (medical expenses) + 20,000 (special diet) + 2,00,000 (attendant) + 30,000 (conveyance expenses) + 1,00,000 (pains 14 and sufferings) + 1,00,000 (loss of amenities in life) + 1,00,000 (marriage prospects)} 24.This enhanced amount of compensation shall carry interest @ 8% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 25.Any amount already paid to Claimants/Appellant as compensation shall be adjusted from the total amount of compensation as calculated above. 26.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. 27.Certified copy as per rules. Sd/-d/--/-/--------/--/- (Parth Prateem Sahu) Judge Dey