1 2025:CGHC:14189 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 417 of 2020 1 - Sandeep Lakda S/o Milku Lakda Aged About 26 Years R/o Village Kenabandh, Boripara, Post, Police Station And Tahsil Ambikapur, District Surguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh ... Appellant(s) versus 1 - Aabid Ansari S/o Aasmohammad Ansari Aged About 26 Years R/o Vijay Nagar, Ward No. 1, Police Station Ramanujganj, District Balrampur, At Present Address Nawapara, Ambikapur, District Surguja Chhattisgarh. (Driver Of Vehicle), District : Surguja (Ambikapur), Chhattisgarh 2 - Prakash Chandra Rai S/o Late Gaya Rai R/o Nawapara, Ambikapur District Surguja Chhattisgarh. (Owner Of Vehicle), District : Surguja (Ambikapur), Chhattisgarh 3 - The Oriental Insurance Company Limited Through Branch Manager, The Oriental Insurance Company, Branch Vister Patal Funduldihari, Ambikapur, District Surguja Chhattisgarh. (Insurer Of Vehicle), District : Surguja (Ambikapur), Chhattisgarh ... Respondent(s) For Appellant : Shri Rupendra Dewangan, Advocate For Respondent No.3. : Smt. Swati Agrawal, Advocate. Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 25/03/2025 1. As per office note, notice issued to respondent No.2 received back unserved with a note “out of station”. 2. As learned counsel for respective parties jointly submitted that liability to pay the amount of compensation is fastened upon the Insurance Company. As the liability to satisfy the award NISHA DUBEY Digitally signed by NISHA DUBEY Date: 2025.04.02 10:33:04 +0530 2 upon respondent No.3 is not in dispute, service of notice upon respondent No.2 is dispensed with. With the consent of learned counsel for the parties, the case is heard finally. 3. Claimant-appellant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (henceforth 'the Act of 1988') challenging award dated 1.2.2020 passed by learned Motor Accident Claims Tribunal, Ambikapur(for short 'the Claims Tribunal') in Claim Case No.29/2019, whereby the Claims Tribunal allowed claim application in part and awarded total compensation of Rs.4,51,683/- along with interest @ 7% p.a. from the date of application till its realization. 4. Brief facts relevant for disposal of this appeal are that on 31.01.2018 at 6.00 p.m. injured claimant was going to Ambikapur from village Shankargarh on motorcycle when he reached near village Bhakura Nawapara, one Hywa bearing registration No.CG15-AC-2932, driven by non-applicant No.1, rashly and negligently, dashed motorcycle of injured as a result of which he sustained multiple grievous injuries in various part of the body. Appellant was immediately taken to hospital at Ambikapur where he was given primary treatment and thereafter referred to Raipur where he took treatment as indoor patient from 02.02.2018 to 10.02.2018 and from 24.02.2018 to 05.03.2018. 5. Claimant/appellant herein filed an application before competent Claims Tribunal claiming an amount of Rs.42,85,837/- as compensation under the head of medical 3 expenses, nutritious diet, transportation, loss of salary during treatment period, physical and mental agony etc. 6. Non-applicant No.1 & 2 i.e. driver & owner of offending vehicle respectively, filed their reply to claim application and denied all adverse pleadings made in application. They have pleaded that non-applicant No.1 was driving vehicle cautiously & carefully. On the date of accident offending vehicle was insured with non-applicant No.3 Insurance Company and as the offending vehicle was not plied in violation of any of the conditions of insurance policy, therefore, the insurance company is liable to indemnify owner in case any compensation is awarded by the Claims Tribunal. 7. Respondent No.3 Insurance Company filed its separate reply and denied averments made in claim application except that on the date of accident the offending motorcycle was insured with it. It was pleaded that appellant himself hit the truck while driving motorcycle carelessly, hence he is not entitled to any compensation for his own negligence. Appellant has also not suffered any permanent or temporary disability. On the date of accident, driver of offending vehicle was not having valid driving license to drive the offending vehcile and as such, the offending vehicle was being plied on road in violation of conditions of insurance policy and therefore, insurance company is not liable to indemnify the insured. 8. The Claims Tribunal after appreciating pleadings and evidence brought on record by the respective parties has 4 partly allowed claim application by holding that accident occurred due to rash and negligent driving by driver of offending vehicle; claimant had not suffered any permanent disablement in the said accident; there was no violation of any condition of insurance policy and accordingly awarded Rs.4,51,683/- as compensation. 9. Learned counsel for claimant-appellant submits that appellant produced disability certificate (Ex.P-79) issued by District Medical Board, Balrampur in which it has been specifically mentioned that claimant suffered 80% permanent disability due to accident. Dr. R.B. Prajapati (AW-2), Member of District Medical Board, Balrampur, has also categorically stated in his statement that appellant suffered 80% disability due to fracture injury. However, the Claims Tribunal overlooked the said aspect and assessed disability at the rate of 60%. Appellant took treatment as indoor patient in Jeewan Jyoti Hospital, Ambikapur and thereafter NHMMI Hospital, Raipur from 02.02.2018 to 10.02.2018 and from 24.02.2018 to 05.03.2018 but the Claims Tribunal has not awarded any amount towards special diet, attendant, transportation and future loss of income. 10. On the other hand, learned counsel for respondent has supported the impugned award and contended that amount of compensation awarded by the Claims Tribunal in the given facts and circumstances of case is just and proper and it does not call for any interference. 5 11. Heard learned counsel for the parties and perused the record of claim case. 12. Appellant was 26 years of age at the time of road accident and was earning by working as Dialysis Technician, as pleaded and stated by appellant. From the medical evidence on record, it is clear that in the said road accident he suffered fracture in tibia and fibula bone and remained admitted in hospital as indoor patient for a period of about 21 days. Perusal of disability certificates (Ex.P-79 & Ex.P-82), which are issued by the District Medical Board, Balrampur would show that due to accident appellant suffered disability in his right leg. Considering the nature of employment of appellant and part of body affected, I do not find any error in the finding recorded by Claims Tribunal that the appellant is entitled for loss of income during laid down period i.e. 11 months. 13. As the appellant failed to prove his employment as Dialysis Technician and income of Rs.17,000/- per month, as pleaded in application, therefore, the Claims Tribunal for the purpose of computing loss of income, has taken income of appellant as Rs.4,500/- on notional basis, which in the opinion of this Court is on lower side. In cases where income of claimant is not proved as per law, then the same is required to be assessed on notional basis. The Claims Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. In case at hand, the accident is dated 31.1.2018 and at that point of time, the 6 minimum wage notified by the Competent Authority under the Minimum Wages Act, 1948 for unskilled labourer was Rs.7800/- per month. Thus, considering the pleadings in claim application and statement of appellant that he was working as Technician and further considering minimum wage rate prevailing on the date of accident in District Surguja, I am of the view that income of deceased can be fixed at Rs.7,800/- per month. Consequently, the amount of compensation for which appellant is entitled under the head of loss of income during laid-down period comes to Rs.85,800/- (7,800x11). It is ordered accordingly. 14. As the income of appellant is assessed at Rs.7800/- per month, the amount of compensation paid towards loss of income due to permanent disability is also required to be recomputed. 15. Percentage of disability suffered by appellant is not in dispute, which is otherwise established from the disability certificates (Ex.P-79 & Ex.P-82) issued by the District Medical Board concerned. As per pleadings, on the date of accident, appellant was 25 years, however, the Claims Tribunal while computing loss of income due to permanent disability has not followed the principle laid down by Hon’ble Supreme Court in case of National Insurance Co. Ltd. Vs Pranay Sethi, reported in (2017) 16 SCC 680 by adding loss of future prospects. Hence, this Court proposes to recompute the amount of compensation under the head of loss of income due to 7 permanent disability. 16. Accordingly, income of appellant is taken as Rs.7800/- and by adding 40% towards future prospects, as held in case of Pranay Sethi (supra), the income of appellant comes to Rs.10920/- per month (7800+3120). As per disability certificate Ex.P-79, percentage of disability of appellant for the period from 9.11.2018 to 11.12.2019 i.e. about 13 months, was 80%, therefore, loss of income suffered by appellant during aforesaid period comes to Rs.1,13,568/- (80% of 10920x13). Similarly, as per disability certificate of Ex.P-82, the percentage of disability of appellant for the period from 12.12.2019 to 11.6.2021 i.e. 18 months, was 60% and therefore, the compensation for which appellant is entitled towards loss of income during aforesaid period comes to Rs.1,17,936/- (60% of 10920x18). Thus, appellant is entitled for total compensation of Rs.2,31,504/- (113568+117936) for loss of income due to permanent disability. 17. Going by the documents produced by appellant as Ex.P-8 to Ex.P-76, which are medical bills, prescription, receipts and could not be controverted by other side, has awarded Rs.2,32,783/- . Some of medical bills produced by appellant have been disbelieved by Claims Tribunal on the ground that the same do not bear signature or not supported with the prescription of concerned doctor. This finding recorded by the Claims Tribunal is based on proper appreciation of evidence on record and it does not call for any interference. 8 18. Looking to the nature of injuries suffered by appellant in the accident, percentage of permanent disability and its effect in future life of appellant, I am of the view that the amount awarded under the head of pain and suffering is on lower side and requires to be enhanced from Rs.40,000/- to Rs.50,000/-. It is ordered accordingly. 19. Resultantly, appellant is held entitled for total compensation of Rs.6,00,087/- (231504+117936+113568+85800+50000). This amount of compensation shall carry interest @ 7% p.a. from the date of filing of claim application till its realization. Rests of conditions shall remain as it is. 20. Amount of compensation, if any, disbursed to appellant pursuant to the impugned award, the same shall be adjusted. 21. Impugned award passed in Claim Case No.29/2019 is modified to the extent indicated above. Sd/- (Part Prateem Sahu) Judge Nisha