1 - Bhupendra Patel S/o Ganesh Patel Aged About 22 Years R/o Jamatpara Khairagarh v. 1 - Dwarka Nishad S/o Shukdev Nishad Aged About 45 Years R/o Thakurpara Khairagarh
Case Details
1 2025:CGHC:17400 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 717 of 2020 1 - Bhupendra Patel S/o Ganesh Patel Aged About 22 Years R/o Jamatpara Khairagarh, P.S. And Tehsil- Khairagarh, District- Rajnandgaon (C.G.). --- Appellant versus 1 - Dwarka Nishad S/o Shukdev Nishad Aged About 45 Years R/o Thakurpara Khairagarh, P.S. And Tehsil- Khairagarh, District- Rajnandgaon, Chhattisgarh (Vehicle Driver) 2 - Badriram Sahu, S/o. Gauram Ram, Aged About 56 Years R/o Village Kodenwagaon, P.S. And Tehsil- Khairagarh, District- Rajnandgaon, Chhattisgarh (Owner Of Vehicle) 3 - S.B.I. General Insurance Company Limited Branch Office- Pujari Cherghar, Fourth Floor Panchpedi Naka, Pujari Marg, Dhamtari Road, N.H. 43 Raipur, District- Raipur, Chhattisgarh, Pincode- 492001 (Insurer) --- Respondent(s) For Appellant : Mr. Abhishek Pandey, Advocate For Respondents No.1 & 2 : None present though served. For Respondent No.3
Legal Reasoning
: Mr. Utsav Mahishwar, Advocate BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.04.25 10:35:43 +0530 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 16/04/2025 2 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 Motor Accident Claims Tribunal, Khairagarh, District – Rajnandgaon (for short ‘the Claims Tribunal’) vide award dated 02.01.2020 passed in Claim Case No.33/2018 thereby allowing application in part and awarding Rs.2,21,006/- as compensation in an injury case. 2. Facts relevant for disposal of this appeal are that on 08.10.2016 while appellant was returning to Khairagarh on his bicycle and reached near turning of pond, respondent No.1 by driving the offending tractor bearing No. C.G.-08-V-4591 in a rash and negligent manner hit the appellant from backside. As a result, the appellant fell on the ground, and the tractor ran over his right hand. In the accident appellant suffered crushed injury over his right wrist. The injury was so grievous that his right palm up to wrist was amputated. He was immediately taken to the Community Health Center, Khairagarh and looking to his serious condition, he was referred to Sparsh Bhilai Hospital. 3. Appellant filed an application under Section 166 of the Act of 1988 seeking total compensation of Rs.52,70,000/- pleading therein that at the time of accident, he was aged about 22 years, used to work as Mason and was earning Rs.350/- per day. It was pleaded that due to the accident, he suffered 50% permanent disability and unable to perform his work. Appellant/claimant had also sought compensation under other heads as are available to him like medical expenses, special diet, future medical expenses, pain and sufferings etc. 4. Non-applicant Nos.1 & 2 submitted reply and resisted the claim. The 3 happening of incident from the offending vehicle was also denied. It was pleaded that application was filed, exaggerating the amount of compensation. On the date of incident respondent No.1 was having valid and effective driving licence to drive the vehicle, it was duly insured with respondent No.3 and there was no breach of policy condition. In case, appellant is entitled for compensation, if any, then respondent No.3 will be liable to pay the compensation. 5. Non-applicant No.3-Insurer of offending vehicle, submitted reply to claim application denying the pleadings made therein. It was pleaded that application was filed on false and fabricated grounds in order to get compensation. The incident as per pleading was of 08.10.2016, however, the incident was reported to the concerned police station after three months of the incident. Respondent No.1 was not having any valid and effective driving licence to drive the vehicle and there was breach of condition of insurance policy, hence, insurance company is not liable to pay any amount of compensation. 6. Upon appreciation of pleadings and evidence placed on record by respective parties, learned Claims Tribunal held that accident occurred due to rash and negligent driving of offending vehicle by non-applicant No.1, due to which the appellant suffered 20% permanent disability. Breach of Policy condition was not found to be proved. Tribunal allowed application in part, awarded total compensation of Rs.2,21,006/- along with interest @ 6% per annum, fastened liability upon non-applicant No.3-Insurance Company to pay the amount of compensation. 7. Learned counsel for appellant submits that learned Claims Tribunal 4 erred in assessing the permanent disability of the appellant on account of amputation of right wrist to the extent of 20% overlooking the medical certificate (Ex.P-49) issued by Medical Board and proved by the Dr. Prakash Bhalerao (A.W.-2) mentioning the permanent disability suffered by the appellant is 50%. He further contended that learned Claims Tribunal has not awarded the amount towards loss of earning capacity but have only awarded lump-sum amount of Rs.1,00,000/- as compensation towards the injury suffered by the appellant. He next contended that learned Claims Tribunal has not awarded the amount of compensation on all heads for which the appellant is entitled for. The income of the appellant is assessed on lower side to the tune of Rs.4,500/- only overlooking the date of accident i.e. 08.10.2016 and on the said date, the minimum wages fixed for labourer is much more than that as assessed by learned Claims Tribunal. He also contended that liability to satisfy the amount of compensation is upon the Insurance Company as the learned Claims Tribunal has held that there is no breach of conditions of insurance policy. He prays that amount of compensation be suitably enhanced. 8. Respondent No.1 and 2 is reported to be served, however, there is no representation on their behalf. 9. Learned counsel for respondent No.3-Insurance Company opposes the submission of learned counsel for appellant and would submit that learned Claims Tribunal upon appreciation of evidence brought on record and considering that permanent disability suffered by appellant is only on his one hand i.e. right hand (amputation of right writs) has 5 rightly assessed the functional disability to the extent of 20% and accordingly, the amount of compensation has been computed and awarded. The amount of compensation awarded by the learned Claims Tribunal is just and proper in the facts of the case, which does not call for any interference. 10. I have heard learned counsel for the parties and perused the record. 11. Undisputedly in the motor vehicle accident, appellant suffered grievous injuries over his right hand and his right palm up to wrist was amputated. Appellant got himself examined before the Medical Board and the Medical Board issued disability certificate (Ex.P-49) and is proved by Dr. Prakash Bhalerao (A.W.-2). The Doctor (AW-2) in his evidence stated that the disability suffered by the appellant is permanent and the percentage of disability is to the extent of 50%. In evidence, no specific question has been put to the witness as to what will be the functional disability suffered by the appellant, where the appellant had suffered the disability to the extent of 50% due to amputation of right wrist according to disability certificate. In the aforementioned facts of the case, the learned Claims Tribunal ought to have taken the help of Scheduled-I of the Employee’s Compensation Act, 1923 to assess the loss of earning capacity of the injured person more particularly when the injured is a labourer. Under Part-II of the Schedule-I, list of injuries deemed to result in permanent partial disablement, at Sr. No.7, for loss of four fingers of one hand, percentage of loss of earning capacity is provided as 50%. In the case at hand, the appellant has lost his right palm up to wrist on account of motor accident. In the aforementioned facts of the case, I am of the 6 view that learned Claims Tribunal has committed error in assessing the loss of earning capacity of the appellant to the extent of 20% instead 50% as proved by the doctor and mentioned in permanent disability certificate Ex.P-49. 12. The Hon’ble Supreme Court in case of Sanjay Rajpoot Vs. Ram Singh, reported in LAW (SC) 2025 2 34 has considered the loss of income of a self employed person running and managing his own business suffered with the amputation of one leg above knee and assessed the functional disability of the appellant as 90% and held as under :- “10. We have heard the learned counsel for the parties. Respondent No.3 – the insurer has not entered appearance. We are unable to agree with the view taken by the Tribunal and High Court on the functional disability suffered by him and also the determination of his age. The Claimant-Appellant is not salaried, but is self- employed running and managing his own business. For the Appellant to be able to effectively run his business, he is definitely required to move around. This has been hampered significantly by his amputation, which proves that the functional disability of the Appellant will severely impact his earning capacity. Therefore, the correct view would be to assess the disability of the Claimant- Appellant as 90%.” 13. Considering the entirety of facts and circumstances of the case, the schedule as provided under the Act, 1923 and also the aforesaid decision of Hon’ble Supreme Court I am of the view that functional disability resulting into loss of income to the appellant who has been held to be labourer for the purpose of earning his livelihood, would be 50%. It is ordered accordingly. 14. So far as the income of the appellant is concerned, in absence of proof 7 of occupation and income, the learned Claims Tribunal has notionally assessed the income of the appellant as Rs.4500/- per month. Undisputedly, the accident is of dated 08.10.2016, hence, the learned Claims Tribunal ought to have assessed the income of the appellant taking into consideration the wage structure, nature of employment, price index and should have also taken the help of notification issued by the competent authority under the Minimum Wages Act, 1948. Perusal of the notification issued by the competent authority for the period from 01.04.2016 to 30.09.2016 it would show that the minimum wages for unskilled labour has been fixed as 6107/-. Considering the aforementioned facts of the case and the notification issued by the competent authority as also the fact that the appellant has failed to prove the nature of occupation and income as pleaded I find it appropriate to take the help of the notification issued by competent authority under Minimum Wages Act and assessed the income of the appellant as Rs.6,000/- per month. It is ordered accordingly. 15. The compensation amount of Rs. 1,00,000/- awarded for the injury suffered by the appellant, in light of the specific circumstances of this case, appears to be on the lower side and therefore warrants re- assessment. In addition, the compensation for loss of income resulting from the appellant’s permanent disability needs to be recalculated using the multiplier method and after addition of amount towards future prospects in the assessed income of the appellant as per the decision of Hon’ble Supreme Court in case of National Insurance Company Limited. Vs. Pranay Sethi & Ors, reported in (2017) 16 SCC 680, in 8 which it has been held that in case where victim of road accident is below 40 years of age on the date of accident, 40% of assessed income is to be added towards future prospects. In the case at hand, at the time of incident, the injured was 22 years of age, hence, the income is required to be enhanced by 40% towards future prospects, which comes to Rs.2400/- and thus the total monthly income of the injured comes to Rs.8,400/- and annual income of the injured works out to Rs.1,00,800/-. 16. Since the injured was 22 years of age at the time of incident, therefore, a multiplier of 18 is to be applied as per the decision of Hon’ble Supreme Court in case of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121, hence after applying the multiplier of 18, the total loss of income works out to Rs.18,14,400/-. As the loss of earning due to disability suffered by the appellant is held as 50%, the compensation has to be calculated by apportioning to 50% disability and accordingly total compensation under the head of loss earning capacity works out to Rs.9,07,200/-. Thus amount under the head of loss of income is awarded as Rs.9,07,200/-. 17. The amount of compensation awarded towards loss of earning during the period of treatment is on lower side in view of the income as assessed by this Court in preceding paragraph as Rs.6,000/- per month, the appellant would be entitled for loss of income during the period of treatment for four months as held by the learned Claims Tribunal which would come to Rs.24,000/-(Rs.6000 x 4). 9 18. Learned Claims Tribunal has awarded Rs.28,006 towards medical expenses, Rs.10,000/- towards conveyance expenses and Rs.10,000/- towards special diet and Rs.55,000/- towards pain and suffering, which in the opinion of this Court is just and proper and it does not call for any interference. 19. Appellant was 22 years of age on the date of accident. His right palm up to wrist was amputated due to motor accidental injuries. He has to live with the said disability for whole of his life and he will not be able to enjoy the life like an ordinary person, hence, he is also entitled to get compensation of Rs.40,000/- towards loss of amenities in life. 20. On the basis of above, the compensation awarded by the Tribunal is recomputed as under :- S.N. Head Amount. 1. 2. 3. 4. 5. 6. 6. Loss of income : Rs.9,07,200.00 For medical expenses : Rs. 28,006.00 For conveyance : Rs. 10,000.00 For special diet : Rs. 10,000.00 For loss of income during treatment : Rs. 24,000.00 For pain and suffering : Rs. 55,000.00 Loss of amenities in life : Rs. 40,000.00 Total Compensation : Rs.10,74,206.00 21. Accordingly, the appeal is allowed in part. The appellant shall be entitled for total compensation of Rs.10,74,206.00. Any amount paid to the appellant as compensation as per award shall be adjusted. 10 Enhanced amount of compensation shall carry interest @ 8.5% per annum from the date of filing of application till its realization. 22.
Decision
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