[2025:RJ-JP:18112] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Miscellaneous Appeal No. 45/2014 eukst dqekj vxzoky iq= Jh j?kquUnu vxzoky] mez&43 o"kZ] fuoklh&283] olqU/kjk dkWyksuh] Vksad jksM] t;iqjA ----vihykFkhZ Versus 1- Jherh iwf.kZek eqaMsy iRuh Jh lat; eqaMsy] fuoklh&85] t; toku dkWyksuh] ctkt uxj] t;iqjA ¼pkyd ,oa ekfyd½ 2- U;w bf.M;k bU';ksjsUl dEiuh fyfeVsM tfj;s izcU/kd {ksf=; dk;kZy;] usg: iSysl Vksad jksM] t;iqjA ¼chek dEiuh½ ----vizkFkhZx.k For Appellant(s) : Mr. K.N. Tiwari Mr. S.K. Saini For Respondent(s) : Mr. Rahul Joshi HON'BLE MR. JUSTICE MANEESH SHARMA Order 01/05/2025 1. The appellant has filed present appeal under Section 173 of the Motor Vehicles Act, 1988, whereby the claim petition has been partly allowed by the Judge, Motor Accident Claims Tribunal (Essential Commodities Act), Jaipur. 2. Brief facts of the case giving rise to the present appeal are that on account of the accident that took place on 5 July, 2001, the appellant sustained injuries, thereby causing 33.23% permanent disability and shortening of leg, concerning which the claim petition was filed. That the respondent No.1 did not file any reply to the claim petition. [2025:RJ-JP:18112] (2 of 8) [CMA-45/2014] 3. That the respondent No.2-Insurance Company denied the averments of the claim petition and prayed for rejection of the claim, while asserting that there is a violation of the terms of the policy as well as a violation of Section 64 VB and accordingly prayed for dismissal of the claim petition. 4. That on the basis of the pleadings of the parties, the learned MACT Court framed following issues:- ^^1- vk;k iz'uxr okgu la[;k uEcj&vkj-ts- 14&4lh&3638 ds pkyd foi{kh la[;k ,d ds }kjk fnukad 05-07-2001 dks mDr okgu dks xka/kh uxj] jsyos LVs'ku ds ikl] t;iqj ij mDr okgu dks mis{kk@mrkoysiu ls pykdj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i eukst ds pksVsa vkbZA 2- vk;k mDr okgu pkyd rc mDr okgu Lokeh Lo;a ds fgrkFkZ ,oa ykHkkFkZ dk;Z dj jgk Fkk \ 3- vk;k foi{kh la[;k rhu }kjk vius fyf[kr dFku dh izkjafHkd vkifRr;ksa ,oa fo'ks"k dFku ds en~nsutj chek daiuh vius nkf;Ro ls eqDr gks ldrh gS] ugha rks bldk izHkko \ 4- vk;k nkosnkj vius nkos@nkok esa vafdr iz'uxr jkf'k ;k vU; dksbZ U;k; lEer jkf'k ik ldk gS] gka rks dkSu&dkSu nkosnkj] fdruh&fdruh jkf'k] fdl&fdl foi{kh ls ,oa fdl izdkj ls ik ldrs gSa \ 5- vuqrks"k \** 5. That in order to substantiate the averments of the claim, the claimant examined AW-1 Manoj Kumar Agarwal, AW-2 Surendra Soni and AW-3 Dr. P.C Joshi and produced Ex.1 to Ex.262. 6. That the respondents did not lead any evidence to controvert the same. [2025:RJ-JP:18112] (3 of 8) [CMA-45/2014] 7. That the learned MACT Court, after hearing arguments of the parties, partly allowed the claim petition and awarded compensation of Rs.1,83,000/-. 8. Heard learned counsel for the parties and perused the record of the case. 9. It was submitted by the counsel for the appellant that due to said accident, the appellant had to remain hospitalized for a period of 18 months, and due to said injuries, he sustained 33.23% permanent disability as per the permanent disability certificate issued by Medical Board Ex.261. He further submitted that the treating doctor Dr.P.C.Joshi has duly proved the said disability certificate by giving evidence. Learned counsel for the appellant further submitted that the compensation awarded under the head of loss of earnings during the course of treatment and the loss of earnings due to injuries are lesser and the same deserves to be enhanced. 10. Learned counsel for the appellant submitted that the appellant remained hospitalized for a period of 18 months, however, compensation was awarded only for 12 months. Therefore, compensation for loss of income during the course of treatment for the remaining six months i.e. 2,500x6=Rs.15,000/- deserves to be awarded. Further, the learned counsel for the appellant submits that the learned court below seriously erred in awarding loss of earnings while considering the functional disability to be 10% as against the 33.23% described in permanent disability certificate. He further submits that the Hon'ble Supreme Court in the case of Prakash Chand Sharma [2025:RJ-JP:18112] (4 of 8) [CMA-45/2014] Vs. Rambabu Saini [SLP(C) 3066 OF 2024], has observed that the permanent disability reflected in the certificate should be considered as a whole. Therefore, there is no justification on the part of the learned Court below to grant compensation while considerting the functional disability to be @ 10%. Accordingly, the learned counsel for the appellant prays for enhancement of the compensation. 11. Per contra, learned counsel for the respondent-Insurance Company supported the impugned order and submitted that as per the judgment in the matter of Raj Kumar Vs. Ajay Kumar[Civil Appeal No.8981/2010 arising out of S.L.P.(C) No.10383/2007] reported in 2011(1) ACJ 1, the loss of earnings is rightly calculated while considering the functional disability to be 10% under the impugned award. 12. That a bare perusal of the record it reveals that the deceased remained hospitalized for a period of 18 months, but while considering the loss of earnings during the course of treatment he was awarded monetary compensation only for 12 months. Therefore, in the opinion of this Court, the monetary compensation under the head of loss of earning during the course of treatment is required to be enhanced for the remaining six months. Thus, under the head of earnings during the course of treatment, a sum of Rs.15,000/- is ordered to be enhanced. 13. So far as the issue regarding awarding of loss of earnings while considering the functional disability to be 10% as against the certificate of permanent disability indicating 33.23%. The Hon'ble Supreme Court in the matter of Raj Kumar Vs. Ajay [2025:RJ-JP:18112] (5 of 8) [CMA-45/2014] Kumar reported in 2011 (1) ACJ 1 has summarized the principles for assessing the functional disability has held as under:- "13. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 14. In the present case, the appellant is an accountant by profession, having an age of 31 years. Therefore, looking at the nature of injuries sustained by the appellant as per Ex.261 and shortening of leg. In my considered opinion, the permanent disability/ functional disability of the injured ought to have been [2025:RJ-JP:18112] (6 of 8) [CMA-45/2014] assessed as 25%. Therefore, the compensation on account of loss of earnings is required to be enhanced. 15. It is pertinent to mention here that there is no quarrel in respect of the proposition of law laid down by the Hon’ble Apex Court in the matter of Prakash Chand Vs. RamBabu, but that was a case of 100% permanent disability as that patient has no speech, he cannot stand and walk and he was dependent on activities of daily living (ADL) =100%. The Hon'ble Apex Court in the case of Prakash Chand (supra) at para no.8, observed as under: "8. We find force in the submissions of the appellant. The duly constituted Medical Board has ascertained the permanent disability of the claimant- appellant to be 100%. The relevant extract of the opinion of the Medical Board is reproduced hereunder: "(a) Permanent prevation of the sibght of either eye or the hearing or either ear or any member of joint (mention if any): Now the patient has no speech and his intellectual functions are completely impaired. He cannot stand and walk. He is catheterized till now. (b) Destruction or permanent impairing of the power of any member of joint mention (if any). He is dependent on others on Activities of Daily Living (ADL)= 100%. He falls from bad several times. He got many times during infection. Total permanent, physical impairment is 100%. (c) Permanent disfiguration of head or face (mention if any)... [2025:RJ-JP:18112] (7 of 8) [CMA-45/2014] (d) The other material observation having adverse bearing on the life expectancy or normal functioning of the body/limb injured/affected: Total permanent Impairment is 100% one hundred percent." Thus, said judgment is distinguishable on facts. 16. That a bare perusal of the record of the case, it is also evident that the appellant, due to the said accident had undergone four surgeries and it also proved that the appellant had to suffer from shortening of the leg by ¾ inch. 17. Thus, looking to the facts of the case, compensation awarded under the impugned order requires to be enhanced to some extent. 18. Thus, in my considered opinion, in the light of the judgment passed by the Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Pranay Sethi reported in 2017 (16) SCC 680, the compensation awarded under the impugned award requires to be enhanced. Thus, while considering the age of the claimant to be 31 years and the income of the appellant to be Rs.2500/- per month as an accountant. The compensation is enhanced as indicated in the table:- For Medicine / medical expense Rs.45,000/- Food/ Nourishment/ Transportation Rs.10,000/- Loss of Income during treatment (2500x18 months) Rs.45,000/- Loss of earning as per multiplier method (2500x12x16) Rs.4,80,000/- [2025:RJ-JP:18112] (8 of 8) [CMA-45/2014] Disability 25% Rs.1,20,000/- Future Prospect 40% Rs.48,000/- Mental Agony Pain and Suffering due to shortening of leg and four operations Rs.1,00,000/- Total Rs.3,68,000/- Already Awarded Amount(-) Rs.1,83,000/- Enhanced amount of compensation Rs.1,85,000/- 19. Therefore, the present appeal is partly allowed and award passed by the learned MACT Court below is modified by enhancing to Rs.3,68,000/- from the original amount of Rs.1,83,000/-. The Insurance Company is directed to deposit the enhanced amount of Rs.1,85,000/- before the learned concerned MACT Court within 60 days from the date of passing of this order. The claimant is also entitled to get interest on the enhanced amount Rs.1,85,000/- at the rate of 6% per annum in terms of the award, until the realization of the said amount. 20. Accordingly, the appeal is partly allowed. The compensation awarded by the learned Tribunal is modified and enhanced as per the terms indicated above. 21. All pending application(s), if any, stands disposed of. (MANEESH SHARMA),J SEEMA/107