Page No.1 2025:CGHC:13982 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 337 of 2020 1 - Pradeep Alias Pappu Bharti S/o Pawan Bharti Aged About 23 Years Presently Residing Through Khuleshwar Bharti At Village Babutola (Satnami Para), Post Navagaon, Tahsil Police Station And District Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh ... Appellant(s) versus 1 - Poonam Das Alias Raja Manikpuri S/o Dhruvdas Manikpur Aged About 27 Years R/o Village Dhara, Police Station, Mohla, Tahsil Dongargarh, District Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 2 - Shiv Kumar Manikpuri S/o Dhruvdas Manikpuri Aged About 20 Years R/o Village Dhara, Police Station Mohara, Tahsil Dongargarh, District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh 3 - Branch Manager Iffo Tokio General Insurance Company Limited, Branch Rajnandgaon, New Circuit House Road, Near State Bank Rajnandgaon, District- Rajnandgaon, Chhattisgarh, District : Rajnandgaon, Chhattisgarh ... Respondent(s) _________________________________________________________ For Appellant : Mr. Anuj Kumar Pandey, Advocate on behalf of Mr. S.S. Baghel, Advocate. For Respondent No.3 : Mr. Himanshu Yadu, Advocate on behalf of Mr. Vaibhav Shukla, Advocate. ----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Parth Prateem Sahu Order On Board 24/03/2025 1. Appellant-claimant has filed this appeal challenging the award dated 04.11.2019 passed by the learned 2nd Additional Motor Accident Claims Tribunal, Rajnandgaon, District- Rajnandgaon (for short ‘the Claims Tribunal’) in Claim Case No.113/2018 NISHA DUBEY Digitally signed by NISHA DUBEY Date: 2025.04.02 10:33:46 +0530 Page No.2 whereby the Claims Tribunal allowed claim application of claimant in part and awarded compensation of Rs.5,21,100/- to claimant/appellant along with interest @ 7% p.a. from the date of filing of claim application. 2. Facts of the case, in brief, are that on 15.09.2017, appellant and his friend Manish Soni were going to Mohara from Dongargarh on motorcycle. Appellant was travelling as a pillion rider. When they reached Sivni Kala, vehicle bearing registration No.CG08-AC- 1931 which was coming from opposite direction in high speed and driven in a rash and negligent manner by respondent No.1 herein, hit the motorcycle and caused accident. In the said accident, appellant suffered multiple injuries including fracture in his leg. He was admitted in Government Hospital, Rajnandgoan. During treatment, he underwent surgery and a rod was implanted in his right leg. As a result of said accident, appellant suffered 60% permanent disability. Appellant filed application before the Claims Tribunal claiming Rs.17,50,000/- as compensation inter alia on the ground that, at the time of accident, he was 27 years old, earning Rs.10000/- per month by working as labourer, however, after the accident he is unable to do work. 3. Non-applicant No.1 & 2 submitted joint reply to claim application and denied the factum of accident with offending vehicle. It was pleaded that accident occurred on account of rash and negligent driving by driver of motorcycle. Accident has not occurred from the offending vehicle. Report has been lodged on false ground. Page No.3 On the date of accident, their vehicle was duly insured with non- applicant No.3, therefore, amount of compensation, if any, awarded can be recovered from the non-applicant No.3 Insurance Company. 4. Non-applicant No.3 Insurance Company submitted reply to claim application and denied the fact that appellant suffered injuries in the accident caused by offending vehicle. On the date of accident, non-applicant No.1 was not possessing valid and effective driving license to drive the offending vehicle and the offending vehicle was being used in violation of the conditions of insurance policy. Since the accident was result of head-on collusion, the principle of contributory negligence would apply. 5. The Claims Tribunal after appreciating pleadings and evidence brought on record by the respective parties has partly allowed claim application held that, accident occurred due to rash and negligent driving of the driver of offending vehicle; claimant suffered permanent disablement in the said accident, however, there is no loss of income due to disability; there was no violation of any condition of insurance policy and accordingly awarded Rs.5,21,100/- as compensation. 6. Learned counsel for the claimant/appellant submits that learned Claims Tribunal erred in awarding the compensation on lower side. Appellant/claimant suffered 60% permanent disability, which is also proved by producing disability certificate as Ex.P/11 and examining Dr. Prakash Bhalerao(AW-1), however, learned Claims Page No.4 Tribunal has assessed loss of income towards permanent disability to the extent of 35% only, which is erroneous. He next contended that the income assessed by learned Claims Tribunal treating the appellant to be a Laborer @ Rs.6,000/- per month is also on lower side. Appellant has categorically pleaded and stated before the Court that he was earning Rs.10,000/- per month by working as laborer and after the accident, he is unable to do the laborer work due to the permanent disability suffered by him. Learned Claims Tribunal ought to have awarded the amount of compensation treating loss of income to the extent of 60%. The Claims Tribunal though held that the appellant suffered permanent disability, however, no amount is added towards the future prospects while computing the amount of compensation and meager amount is awarded on other head. 7. Learned counsel for respondent No.3-Insurance Company does not dispute submission made by counsel for appellant that the liability to satisfy the amount of compensation awarded by learned Claims Tribunal is upon respondent No.3. He however opposes the submission made by counsel for appellant on merits of the case and would submit that the learned Claims Tribunal has awarded just amount of compensation in facts and circumstances of the case. Though the appellant suffered permanent disability to the extent of 60%, however, it is only with respect to one part of the body and it cannot be treated for the whole body. Doctor examined by the appellant has stated that the Page No.5 disability may reduce by taking physiotherapy and other treatment, therefore, there is no error in the finding recorded by learned Claims Tribunal with respect to the loss of income suffered by the appellant due to permanent disability to the extent of 35%. He submits that other part of the award is also just and proper, hence, does not call for any interference. 8. Heard learned counsel for respective parties and perused documents available on record and also record of the Claims Tribunal. 9. Appellant has produced copy of the medical documents as also permanent disability certificate as Ex.P/11. Perusal of medical documents would show that the appellant suffered fracture over right femur and right Tibia and Fibula. Disability certificate Ex.P/11 produced before the learned Claims Tribunal would show that it is issued by Medical Board, Rajnandgaon mentioning that appellant suffered 60% permanent disability. To prove permanent disability certificate, appellant examined Dr. Prakash Bhalerao as AW-1. In his evidence he stated that the appellant suffered fracture of right Tibia, Fibula and right femur. Right femur was operated and there was infection. There was stiffness on the right knee and right leg was found to be shortened by 5 cm. In examination, this witness admitted that the percentage as mentioned with disability certificate is with respect to the part of the body for which disability certificate is not for the whole body. Page No.6 10. Hon’ble Supreme Court in case of Raj Kumar v. Ajay Kumar and another, reported in (2011) 1 SCC 343 has considered as to how the loss of income is to be considered if the claimant suffered permanent disability over any part of the body. Hon’ble Supreme Court has held that in all the cases the percentage of the disability as mentioned in the disability certificate for part of the body is not to be taken as percentage of the loss of income, but the permanent disability for the whole body is to be considered in the light of nature of disability and the injury suffered by appellant/claimant. Relevant paras of the said judgment reads thus:- “9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously Page No.7 exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.” 11. Considering the facts and circumstances of the case as also the decision of Hon’ble Supreme Court, I do not find any error in the view taken by learned Claims Tribunal that the disability suffered by the appellant for the whole body and treating loss of income to the extent of 35% and the said finding is upheld. 12. With respect to the submission made by learned counsel for the appellant that the learned Claims Tribunal erred in assessing the income of appellant Rs.6,000/- per month is concerned, learned Claims Tribunal has found that the claimant has failed to prove the Page No.8 income by leading documentary evidence. In absence of proof of income, it will be proper to take the help of the minimum wages as fixed by the competent authority under the Minimum Wages Act for the purpose of awarding the amount of compensation. 13. In the case at hand, accident is dated 15.9.2017, the minimum wages fixed by the competent authority for the period from 1.10.2017 till 31.3.2018 is Rs.7,800/- for unskilled labor for ‘B’ Class city, hence, I find it appropriate to take monthly income of the appellant as Rs,7,800/- treating him to be the unskilled laborer. 14. Once this Court comes to the conclusion and upheld the finding recorded by the learned Claims Tribunal that the appellant suffered 60% permanent disability and 35% loss of income it will be appropriate to apply the principles of loss of future prospects as held by Supreme Court in case of National Insurance Co. Ltd. vs. Pranay Setthi, reported in (2017) 16 SCC 680 for computing the loss of future income. As on the date of accident the appellant was 23 years of age, therefore, according to the decision of Hon’blse Supreme Court in case of Pranay Sethi (supra) there will be addition 40% of the income towards the loss of future prospects and after applying 40% to income of appellant, total income comes to Rs.10920/- (7800+3120) and annual income of appellant comes to Rs.1,31,040/- (10920x12). In case at hand, on the date of accident appellant-injured was in the age group of 20 to 25 years, as held by Claims Tribunal, and therefore, Page No.9 as per decision of Hon'ble Supreme Court in case of Sarla Verma (supra) multiplier applicable would be '18'. By applying multiplier of 18, as applied by Claims Tribunal, to annual loss of dependency, total loss of dependency comes to Rs.23,58,720/- (131040x18). As already upheld in preceding paragraph that appellant suffered 35% loss of earning capacity, therefore, total loss of income suffered by appellant comes to Rs.8,25,552,/- (35% of 2358720). 15. Considering the period of treatment, nature of injuries, surgeries underwent and medical documents, the Claims Tribunal has arrived at a conclusion that the claimant would not able to perform his work for a period of alteast six months and awarded Rs.36,000/- under the head of loss of income during laid up period, treating monthly income of appellant to be Rs.6000/- per month. Since this Court in preceding para has already determined the income of appellant to be Rs.7,800/- per month taking help of the minimum wage notification, the amount awarded under the head of laid up period also deserves to be enhanced. Accordingly, it is ordered that appellant will be entitled for a sum of Rs.46,800/- (7800 x6) towards the loss of income during laid down period of six months in place of Rs.36,000/- as awarded by Claims Tribunal. 16. Learned Claims Tribunal has awarded Rs.10,000/- towards the pains and suffering which in the opinion of this Court is on lower side. The appellant suffered fracture of right Tibia, Fibula and fracture of femur bone for which he has also to underwent surgery. Page No.10 His leg is shortened. He suffered permanent disability over his leg and even on the date of examination by the Medical Board the doctor found infection in the fracture of femur bone. In these circumstances, I find it appropriate to award Rs.30,000/- towards the pain and suffering instead of Rs.10,000/- as awarded by the Claims Tribunal. 17. The amount of compensation awarded towards special diet, attendant and transportation is also on lower side, therefore, it is enhanced from Rs.1,500/- each to Rs.5,000/- each. Appellant/ claimant will also be entitled for loss of amenities in the life as he suffered 5 cm shortening of leg stiffness in knee joint, therefore, I find it appropriate to award Rs.25,000/- towards to loss of amenities in life as also Rs.10,000/- towards conveyance expenses. Now appellant/claimant will be entitled for total compensation of Rs.9,47,352/- (825552+46800+30000+5000+ 5000 + 25000+10000). The amount of compensation shall carry interest @ 7.5% p.a. from the date of application till its realization. Rests of the conditions of impugned award shall remain intact. Any amount already paid to claimant/appellant as compensation shall be adjusted. 18. The impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge Nisha