1 2025:CGHC:26590 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1745 of 2019 Ogar Say Rajwade S/o Sarju @ Suraj Rajwade Aged About 28 Years R/o Village Salka, Post Dedri, Police Station Surajpur, Tahsil And District Surajpur Chhattisgarh. --- Appellant versus 1 - Sonaul Haq S/o Naimuddin Anasari Aged About 24 Years, Occupation – Driver, R/o Village Nawaparkala (Khartiyapra), Police Station Premnagar, Tahsil Premnagar, District Surajpur Chhattisgarh, Present Address, Kabristan Mohalla, Surajpur, District Surajpur Chhattisgarh. 2 - Chhabinath Sahu, S/o. Vishwanath Sahu, Aged About 35 Years, R/o. Mahatma Gandhi Ward Namadgiri Road, Surajpur, Police Station, Tahsil And District Surajpur Chhattisgarh. 3 - Khurshid Araki S/o Khairul Basar R/o Near Forest Naka, Nawapara, Surajpur, Police, Tahsil And District Surajpur Chhattisgarh. 4 - Ifko Tokiyo General Insurasnce Company Limited Fourth And Sixth Flour, Ifko Tower, Plot No. 03, Sector 29 Gudgaon, Pin 122001. --- Respondent(s) For Appellant : Ms. Shivani Singh, Advocate on behalf of Mr. Ashok Kumar Shukla, Advocate For Respondent No.3 : Mr. Sushil Dubey, Advocate For Respondents No.4. : Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patankar, Advocate BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.08.06 13:30:19 +0530 2 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 23/06/2025 1. Claimant/appellant has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking enhancement of compensation awarded by the learned Second Additional Motor Accident Claims Tribunal, Surajpur, District – Surajpur (for short ‘the Claims Tribunal’) vide award dated 17.05.2019 passed in Motor Accident Claim Case No.79/2015 thereby allowing application in part and awarding Rs.11,86,615/- as compensation in an injury case. 2. Facts relevant for disposal of this appeal are that a claim application U/s. 166 of the Act, 1988 was filed by the appellant/claimant claiming total compensation of Rs.50,00,000/- under different heads on account of the injuries suffered by him in the road accident alleging that on 20.02.2012, the appellant along with his wife Purnima Rajwade and brother Giteshvar Rajwade, went to attend the Sarasore Shivratri Mela on his motorcycle bearing registration number CG 15 CF 3230. While returning home from Sarasore to his home on the way near Village Chandramedha, non-applicant No. 1, driving Maruti Van bearing registration number CG 15 B 2633 at a high speed rashly and negligent, collided head-on with the motorcycle of the appellant. As a result of the accident, the appellant suffered serious injuries on both legs, hips, and head, while Giteshvar Rajwade suffered injuries on his head and left hand. It was pleaded that at the time of accident, appellant was young and healthy man of 28 years and was serving as 3 Constable in Central Reserve Police Force under Government of India and was getting salary of Rs.20,000/- per month. Because of the motor accidental injuries, he suffered 85.13% permanent disability and he was removed from the service. 3. Non-applicant Nos.1 & 2 submitted reply and resisted the claim. It was pleaded that the non-applicant No.1 was having valid and effective driving license. On the date of accident, non-applicant was driving the offending vehicle carefully and the accident, occurred due to rash and negligent driving of motor cycle by the injured himself. The offending vehicle was duly insured with respondent No.4. 4. Non-applicant No.4/Insurance Company also filed its reply to the claim application pleading therein that offending vehicle was being driven in violation of the conditions of the insurance policy. The non-applicant No.1 was not having valid and effective driving license. It was also pleaded that the the accident was a result of self negligence of the claimant/appellant himself. 5. Learned Claims Tribunal upon appreciation of pleadings and evidence placed on record by respective parties, allowed the claim application in part and awarded total compensation of Rs.11,86,615/-. 6. Learned counsel for appellant submits that Tribunal erred in awarding meager amount of compensation. Appellant suffered multiple injuries over his body including injuries on his waist, chest and ribs apart from other injuries. Due to the motor accidental injuries, appellant suffered 85.13% permanent disability as assessed by Medical Board. Appellant prior to the date of accident was a government servant working in the 4 office of the Commandant 65 Battalion, Raipur. Due to the permanent disability suffered by him in motor vehicular accident, he was removed from the service on the ground that he was not fit for service. Copy of the order is placed on record as Ex.P-56. Learned Claims Tribunal erred in assessing loss of earning to the extent of 45% only, which is on lower side in the facts of the case. Learned Claims Tribunal awarded less amount of compensation on other heads. Hence, the amount of compensation be suitably enhanced. 7. Learned counsel for respective respondents opposes the submission of learned counsel for appellant and would submit that the learned Claims Tribunal considering entirety of the facts of the case as also the evidence brought on record has rightly assessed the loss of earning of appellant considering that appellant was in pensionable service and after retirement he will be entitled for pension in accordance with law. The amount of compensation awarded is just and proper, which does not call for any interference. 8. I have heard learned counsel for the parties and perused the record. 9. As regards the loss of future earning, appellant has pleaded in application and stated in his evidence that at the time of accident, he was posted as Constable in 65 Batallion, Central Reserve Police Force, Baradera, Raipur and getting salary of Rs.20,000/- per month. Ex.P-56 is the order dated 27.7.2016 passed by the Commandant-65 Battalion, CRPF, Raipur by which service of appellant has been terminated declaring him to be unfit for the force and sent on invalidation pension. Thus, it is evident that at the time of accident, claimant was employed as Constable in CRPF. In order to prove 5 income, the claimant has filed pay slip for the month of June, 2014 in which his gross pay is mentioned as ‘Rs.22,560/-’ and after deductions, appellant was getting net salary of Rs.11,409/-. The Claims Tribunal relying on pay slip for the month of June, 2014 has taken net income of appellant as reflecting in pay slip for the month of June, 2014 i.e. Rs.11,409/- to compute the loss of future earning, which is not correct. As per the judgment of the Hon'ble Supreme Court in the case of Sunil Sharma & ors vs. Bachitar Singh & ors, reported in (2011) 11 SCC 425, gross salary minus tax is alone to be taken into consideration as actual income and not net salary. Hence, in the opinion of this Court, the Claims Tribunal erred in not taking gross salary for calculating the loss of future earning and erroneously taken into account the carry home salary. 10. As per pay slip of June, 2014 of deceased, gross salary of the appellant was Rs.22,560/- and there was no deduction towards income tax or professional tax. Hence, I deem it appropriate to assess monthly income of appellant as Rs.22,560/-. 11. Perusal of impugned award would show that the Claims Tribunal has not added anything to assess income of appellant towards future prospects though it is established from the disability certificate (Ex.P- 62) that the appellant has suffered permanent disability in his hip to the extent of 45%. In case of Sidram vs. The Divisional Manager, United Insurance Co. Ltd. reported in (2023) 3 SCC 439 the Hon’ble Supreme Court has observed thus:- "31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from 6 compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death." 12. In light of the above decision, it is clear that calculation of compensation towards loss of future earning capacity on account of disability is required to be made by adding future prospects in the income of injured claimant. Hence, this Court is of the view that the Claims Tribunal erred in not adding anything towards future prospects while assessing income of appellant for the purpose of computing compensation under the head of loss of future earning. Since appellant was below the age of 40 years i.e. of 28 years, at the time of accident, there shall be addition of 40% of his assessed income towards future prospects. It is ordered accordingly. 13. Appellant-claimant was medically invalidated, on that ground he was permanently retired from service vide order Ex.P-56 and he was held entitled for invalid pension, which he must be getting every month. However, this amount of pension will not come within the periphery of the Act of 1988 to be termed as "pecuniary advantage" liable for 7 deduction from income of appellant and for this view, I am fortified by the observation by Hon’ble Supreme Court in case of Vimal Kanwar and others vs. Kishore Dan and others reported in (2013) 7 SCC 476, wherein it was held thus:- “18. The first issue is "whether Provident Fund, Pension and Insurance receivable by claimants come within the periphery of the Motor Vehicles Act to be termed as "Pecuniary Advantage" liable for deduction." The aforesaid issue fell for consideration before this Court in Helen C. Rebello (Mrs) and others vs. Maharashtra State Road Transport Corporation & Anr. reported in (1999) 1 SCC 90. In the said case, this Court held that Provident Fund, Pension, Insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a "pecuniary advantage" receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. The following was the observation and finding of this Court: "35. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even 8 otherwise than the accidental death. No correlation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which the insured contributes in the form of premium. It is receivable even by the insured if he lives till maturity after paying all the premiums. In the case of death, the insurer indemnifies to pay the sum to the heirs, again in terms of the contract for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on the insured's death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of one's death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as "pecuniary advantage" liable for deduction. When we seek the principle of loss and gain, it has to be on a similar and same plane having nexus, inter se, between them and not to which there is no semblance of any correlation. The insured (deceased) contributes his own money for which he receives the amount which has no correlation to the compensation computed as against the tortfeasor for his negligence on account of the accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can the fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act he receives without any contribution. As we have said, the compensation payable under the Motor Vehicles Act is statutory while the amount receivable 9 under the life insurance policy is contractual." Thus, there shall not be any deduction from the income of the appellant-claimant on account of receipt of invalidated pension due to permanent retirement of appellant for having become medically unfit. It is ordered accordingly. 14. In view of above, the compensation payable to the appellant under the head ‘loss of future earning capacity’ is to be recomputed. Accordingly, income of appellant is taken as Rs.22,560/-, as assessed above, and after adding 40% of the assessed income towards future prospects, total income of appellant comes to Rs.31,584/- and annual income comes to Rs.3,79,008/-. By applying multiplier of 17, as applied by Claims Tribunal, total loss of earning would come to Rs.64,43,136/-. 15. Looking to the age of appellant and the fact that he suffered 45% permanent disability in his hip due to which he has to suffer agony for his whole life, I am of the view that the amount awarded by the Claims Tribunal towards pains and sufferings and special diet is on lower side and needs to be enhanced. Accordingly, it is ordered that appellant is now entitled for Rs.1,00,000/- towards pain and sufferings and Rs.20,000/- for special diet. It is ordered accordingly. 16. The appellant suffered permanent disability and as per the document Ex.P-56 it is appearing that authorities have mentioned that he is unable to walk. There was shortening of left lower limb also. In the aforementioned facts of the case I find it appropriate to award Rs.30,000/- towards attendant instead of Rs.9,000/-. Claims Tribunal has not awarded any amount towards loss of amenities in life, the appellant is aged about 28 years and he has to live the entire life with 10 the disability suffered by him in the motor vehicle accident, he may not be able to even walk properly, hence, in the facts of the case I find it appropriate to award Rs.1,00,000/- towards loss of amenities in life. Appellant will be entitled for Rs.10,000/- towards conveyance expenses as awarded by the learned Claims Tribunal. The award of Rs.1,00,269/- towards medical expenses is not in dispute and it is affirmed. 17. On the basis of above, the compensation awarded by the Tribunal is recomputed as under :- S.N. Head Amount. (in Rs.) 1. Loss of earning : 64,43,136.00 2. Medical expense : 1,00,269.00 3. For pain and suffering : 1,00,000.00 4. For attendant : 30,000.00 5. For special diet : 20,000.00 6. Loss of amenities in life : 1,00,000.00 7. For conveyance expenses : 10,000.00 Total Compensation : 68,03,405.00 18. Accordingly, the appeal is allowed in part. The appellant shall be entitled for total compensation of Rs.68,03,405/-. Any amount paid to the appellant as compensation as per award shall be adjusted. Enhanced amount of compensation shall carry interest @ 8% per annum from the date of filing of application till its realization. 11 19. 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 Balram