1 2025:CGHC:18312 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 686 of 2020 1 - Prashant Sawarker (Death Through Lrs) As Per Honble Court Order Dated 22- 03-2025 1.1 - P.R. Sawarkar S/o Shyam Rao Sawarkar Aged About 69 Years R/o Shanti Vihar Colony, Danganiya, Sunder Nagar, District Raipur (C.G.) 1.2 - Mohani Sawarkar W/o P.R. Sawarkar Aged About 63 Years R/o Shanti Vihar Colony, Danganiya, Sunder Nagar, District Raipur (C.G.) ... Appellants Versus 1 - M/s Ishwar Ispat Industries Pvt. Ltd. C/o - Incharge Officer M/s Ishwar Ispat Pvt. Ltd., Plot No. 168-C, Police Station- Urla, District - Raipur Chhattisgarh. 2 - Deepak S/o Purushottam Patel C/o - M/s Ishwar Ispat Industries Pvt. Ltd. Plot No. 168-C, Police Station- Urla, District - Raipur Chhattisgarh. 3 - National Insurance Co. Ltd. C/o Divisional Manager, National Insurance Co. Ltd., G.E. Road, Raipur, District Raipur Chhattisgarh. ... Respondents For Appellants : Mr. Akash Shrivastava, Advocate For Respondents No. 1 & 2 : Mr. Deepak Sharma, Advocate on behalf of Mr. Raja Sharma, Advocate For Respondent No. 3 : Mr. Anil Gulati, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 23/04/2025 1. Heard on I.A. No. 01/2020 which is an application for condonation of delay in filing of the appeal. SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 2. Learned counsel for the respective respondents vehemently oppose the submissions made by the counsel for the appellant as also, the pleadings made in the application. 3. On due consideration of the submissions of counsel for the parties as also, the reasons assigned in the application, I.A. No. 01/2020 is allowed. Delay of 57 days in filing of the appeal is condoned. 4. Appeal is admitted for hearing. 5. With the consent of the parties, the case is heard finally at the motion stage. 6. This appeal is filed by the appellant seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal vide award dated 06.12.2019 passed by the 2nd Additional Motor Accident Claims Tribunal, Raipur, District – Raipur (C.G.) in Claim Case No. 596/2016. 7. Facts of the case in brief are that, on 26.10.2014 at about 07:30 P.M., the offending vehicle bearing Registration No. CG 04 HA 5559 which was driven by Respondent No. 2 in a rash and negligent manner, dashed the motorcycle of Prashant Sawarkar bearing Registration No. CG 04 DF 1047 and caused accident. In the said accident, Prashant Sawarkar sustained grievous injuries on his head and neck. He was taken to Balaji Hospital for treatment. Due to injuries sustained by appellant, he suffered permanent disability. Subsequent to the said accident, an FIR was lodged against Respondent No. 2 bearing Crime No. 413/2014 at P.S. Khamtarai, District – Raipur for the alleged offences punishable under Sections 279, 337, 338 of the Indian Penal Code, 1860. 3 8. Learned counsel for appellant submits that this appeal was initially filed by Prashant Sawarker (injured), however, during pendency of the appeal, he died and thereafter, the appeal is being pursued by the legal representatives of the deceased who are old aged parents. He contended that after the death of injured (appellant), the limited ground is left for enhancement of the amount of compensation as held by the Hon’ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Kahlon Alias Jasmail Singh Kahlon & Anr. reported in (2022) 13 SCC 494. Learned Claims Tribunal erred in holding that the injured suffered 60% permanent disability in view of disability certificate issued by the Doctor i.e. Dr. Shreedhar Rao A.W. 4, certifying that injured suffered disability to the extent of 80%. 9. He next contended that the learned Claims Tribunal failed to see that on account of injury on the Curvical Spine, deceased suffered Covadi Parasis in both hands and legs which resulted in 100% permanent disability for the purpose of earning. He further contended that the learned Claims Tribunal has not awarded any amount of compensation towards the loss of future prospects even if, recording a finding that the injured suffered 60% permanent disability. Award of compensation towards the loss of future prospects is well considered by the Hon’ble Supreme Court in the case of Kahlon (Supra). 10.He contended that the learned Claims Tribunal has not awarded an amount of Rs. 6,07,600/- as was claimed towards the expenses incurred in Physiotherapy treatment of deceased and in support thereof, produced payment receipt. However, the learned Claims Tribunal errnoeously disallowed the said claim. 4 11.On the other hand, learned counsel for Respondent No. 3 would oppose the submissions made by the counsel for the appellant and would submit that as the injured died during pendency of the appeal, there is no ground for enhancement of the amount of compensation. Amount of compensation awarded by the learned Claims Tribunal is just and proper in the facts and circumstances of the case. Learned Claims Tribunal has assigned reasons for disbelieving Ex. P/214 with respect to the payment receipt placed on record for the Physiotherapy treatment taken by the injured. Witness Mr. Sajawal Singh (Physiotherapist) examined before the learned Claims Tribunal as AW - 2 was found to be suspicious as he has issued the receipt on a plain paper and not under letter head. There is no mention of the degree on the seal. He was not having any Physiotherapy Centre and further, he has stated that he has stopped looking the patients since 2017. 12. Learned counsel for the Respondents No. 1 & 2 also adopted the submissions made by the counsel for the Respondent No. 3. 13. I have heard learned counsel for the parties and perused the record of the learned Claims Tribunal. 14. So far as the submission of the counsel for the respective respondents that as the deceased died during the pendency of the appeal, the appellant/claimants are not entitled for any amount of enhancement in the compensation awarded by the Learned Claims Tribunal is concerned, the issue is well settled by the Hon’ble Supreme Court in the case of Kahlon (Supra) wherein, Hon’ble Supreme Court has observed thus:- “19. We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include 5 expenditure on medicines, treatment, diet, attendant, doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. ” Considering the facts of the case that the appellant died during the pendency of the appeal and further, the decision of the Hon’ble Supreme Court in the case of Kahlon (Supra), I am of the view that the appellants/claimants who are the old aged parents of the deceased/injured are entitled for the enhancement of the amount of compensation as loss of estate including the expenditure on medicines, treatment, diet, attendant, doctor fees, loss of income and future prospects. 15. So far as the ground raised by the counsel for the appellant with respect to non-awarding of the amount of Rs. 6,07,600/- towards the payment receipts for physiotherapy treatment taken, learned Claims Tribunal upon appreciation of the evidence of the Physiotherapist i.e. Mr. Sajawal Singh (A.W.2) has recorded a finding that the witness in his evidence have admitted that he has not conducted the test of the injured when he first visited to him. He could not be able to state as to what medical documents he has perused and what was the physical status of the injured when he was examined for the first time. He has not mentioned his qualification beneath the seal which is affixed in the certificate nor he has produced his degree of Physiotherapy. He was not having the Physiotherapy Centre for treating the patients and he has stopped looking to the patients since 2017. The Claims Tribunal considering the evidence have further put the questions under Section 6 165 of the Evidence Act, 1872. He has not given receipt at the time of accepting the amount and he has taken the amount of Rs. 800 per day. The witness i.e. Mr. Sajawal Singh (A.W.2) has also admitted in the evidence that Ex. P/214 is false and fabricated. 16. Learned Claims Tribunal upon appreciation of the evidence has further observed that the receipt of Rs. 6,07,600/- for the physiotherapy treatment could not be proved in accordance with law. In the aforementioned facts and the case and the evidence brought on record, I do not find any error in the finding recorded by the learned Claims Tribunal on the point of rejecting the claim of Rs. 6,07,600/- of physiotherapy treatment. The finding recorded by the learned Claims Tribunal is affirmed. 17. The learned Claims Tribunal has awarded Rs. 9,79,200/- towards the loss of income due to the disability suffered by the injured to the extent of 60% (loss of earning capacity) treating the income of the injured as Rs. 8,500/- per month. However, while assessing income of deceased, learned Claims Tribunal has not added anything towards future prospects based on the evidence brought on record by the injured before the learned Claims Tribunal and assessed the loss of income as Rs. 9,79,200/-. 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 considered award of compensation for future prospects and 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 compensation for future loss of income, amounts for future prospects as well. We 7 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.” For the purpose of calculating the amount of compensation in injury case based on the income and future prospect. The award of the amount of compensation under the head of future prospect is considered by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680 and the Hon’ble Supreme Court has held that the claimants will be entitled for loss of future prospect to the extent of 50% in case, the deceased or the injured is permanently employed and for self- employed, it has been held that the future prospect would be added at the rate of 40%. 18. In the case at hand, on the date of accident, the injured was aged between 31 years to 35 years i.e. less than 40 years and was self- employed, therefore, there should be addition of 40% of the assessed income towards the loss of future prospect. Accordingly, the appellants are entitled for addition of 40% of the assessed income i.e. Rs. 1,42,800/- (1,02,000 + 40%) The amount of compensation which has 8 been awarded by the learned Claims Tribunal under the other heads which was during the life time of the injured is not required to be interfered with. 19. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants. 20. Accordingly, the income of deceased is taken as Rs. 8,500 as assessed by Learned Claims Tribunal and after adding 40% for loss of future prospects, total income of the deceased would come to Rs. 1,42,800/-. Further, by applying multiplier of 16, as applied by the Claims Tribunal, the total loss of income would come to Rs.22,84,800/- (1,42,800 x 16). As the Claims Tribunal has assessed loss of earning capacity to the extent of 60%, which is affirmed by this Court in the preceding paragraph, therefore, the appellant would be entitled for Rs.13,70,880/- (22,84,800 X 60%) as compensation towards loss of earning capacity. Applicant will also be entitled for an amount of Rs. 2,38,873/- towards medical expenses as awarded by Tribunal, Rs. 1,42,800/- towards loss of earning for one year during period of treatment, Rs. 1,00,000/- towards Attendant, Rs. 50,000/- for special diet, Rs. 50,000/- for conveyance, Rs. 1,00,000/- for pains and sufferings as awarded by learned Claims Tribunal. Now, the total amount of compensation would amount to Rs. 20,52,553/- (13,70,880 + 2,38,873 + 1,42,800 + 1,00,000 + 50,000 + 50,000 + 1,00,000). This amount of compensation shall carry interest @ 7.5% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 9 21. Any amount already paid to Claimants/Appellants 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 impugned award stands modified to the extent indicated above. 23. Certified copy as per rules. Sd/--/--------/--/- (Parth Prateem Sahu) Judge Dey