Nafr High Court
Case Details
1 2025:CGHC:14025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 684 of 2020 1. Neelkanth Sahu S/o Khorbahara Ram Sahu Aged About 47 Years R/o Vill.- Kirna, P.S.- Nevera, District Raipur (CG) ... Appellant versus 1. Ramesh Kumar S/o Bhuwanlal Jaiswal R/o Vill.- Navagaon, P.S.- Katghora, District- Korba, Chhattisgarh (Driver Of Vehicle No.- C.G.-12 S-0468) 2. Naresh Kumar Jain Through Pal Transport, Korba, P.S. And District Korba, Chhattisgarh (Owner Of Vehicle No.- C.G.-12 S-0468) 3. National Insurance Co. Ltd. Through- Divisional Manager, National Insurance Co. Ltd. G.E. Road, Raipur, Tah. And District- Raipur, Chhattisgarh. (Insurer Of Vehicle No.- C.G.- 12 S-0468) ... Respondent(s) For Appellant : Mr. Rakesh Thakur, Advocate For Respondent No.3 : Mr. Ashish Gupta, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 24/03/2025 1. Appellant-claimant has filed this appeal seeking enhancement of compensation awarded by learned 8th Additional Motor Accident Claims Tribunal, Raipur (for short ‘the Claims 2 Tribunal’) vide award dated 27.11.2017 passed in Claim Case No.204/16. 2. Facts of the case, in brief, are that on 22.2.2015 at about 05:15, non-applicant No.1 dashed motorcycle of appellant at Simga Road, PS Nevra, District Raipur by driving his vehicle bearing registration mark CG12-S-0468 in a rash and negligent manner, as a result appellant suffered grievous injuries due to which his right leg was amputated below knee. Accident was reported in Police Station Nevra, District Raipur based on which offence was registered against non-applicant No.1 under Crime No.33/15 for the alleged offence under Sections 279, 337 & 338 of IPC. 3. Claimant/appellant herein filed application claiming compensation to the tune of Rs.44,40,000/- under various heads on the ground that prior to accident, he was healthy person, working in the Cement Factory, earning Rs.10,000/- per month but after the incident, he has become permanently disabled and unable to earn. 4. Non-applicant No.1 & 2 did not appear before the Claims Tribunal, therefore, they were proceeded ex-parte. 5. Non-applicant No.3- Insurance Company submitted its written statement denying the averments made in claim application. It was pleaded that appellant has neither received any bodily 3 injury nor suffered permanent disability in the said accident. Owner and insurer of motorcycle have not been impleaded as party to the proceeding. Accident in question occurred on account of negligence of appellant. On the date of accident, offending vehicle was being plied in absence of fitness and permit and its driver was also not having valid and effective driving license. Information of accident was not given to police as per Section 158 (6) of the Act of 1988. In these circumstances, the appellant is not entitled for any compensation. 6. The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties has has arrived at a finding that accident was the result of rash and negligent driving of respondent No.1 and accordingly, partly allowed claim application, awarded compensation Rs.6,46,060/- along with interest @ 6% p.a. 7.
Legal Reasoning
Learned counsel for the claimants/appellant submits that the appellant has specifically pleaded that at the time of accident, he was doing the work of Labourer in a cement factory, earning Rs.10,000/- per month and in support thereof also produced salary slip (Ex.P-72). However, the Claims Tribunal disbelieved the version of appellant and assessed his income at Rs.6559/-. As per statement of Dr. P.K. Gupta (AW-2) and 4 disability certificate (Ex.P-59), percentage of disability suffered by the appellant is 60% on account of amputation of leg below knee, however, the Claims Tribunal has erroneously assessed permanent disability as 50% while granting loss of future earning. Age of the injured on the date of accident has been undisputedly found 45 years, hence, 25% towards future prospects ought to have been added to the income of appellant, but the Claims Tribunal has added only 10%. The Claims Tribunal awarded a sum of Rs.65,850/- to claimant under the head of medical expenses but did not include the same in the total amount of compensation, which is required to be added. Therefore, he prays that the present appeal be allowed and compensation be enhanced suitably. 8. Per contra, learned counsel for respondent No.3 Insurance Company argues that considering amputation of right leg below knee and disability certificate (Ex.P-69) issued by the Medical Board, the Claims Tribunal has held that appellant suffered 50% loss of earning capacity, therefore, amount of compensation awarded towards loss of earning capacity cannot be said to be on lower side. Hence, amount of compensation awarded by the Claims Tribunal is just and proper, which does not call for any interference. 9. Heard learned counsel for the parties and perused the record of claim case. 10. So far as first ground raised by learned counsel for appellant 5 that assessment of income of appellant done by Claims Tribunal as Rs.6559/- per month is concerned, in claim application claimant-appellant has pleaded that he was working as labourer in Alfa Engineering Company, in support of his pleading he has filed wage slip (Ex.P-72) and to prove this document examined Anshul Bafna (PW-4), who has stated in categorical terms that wage slip of Ex.P-72 bears signature of Accountant of Alfa Engineering Company. Perusal of Ex.P-72, which is wage slip for the month of January 2015, would show that number of days worked by appellant was 24.5 days, rate of daily wages was Rs.270=46 paise and accordingly, net amount of wages paid to appellant was Rs.11533/-, which includes overtime allowance of Rs.5950/-. Considering the number of working days and wage rate mentioned in the wage slip Ex.P-72, the Claims Tribunal has assessed the monthly income of appellant at Rs.6559/-, which in the opinion of this Court, is just and proper because overtime allowance is not a regular income, it is provided only when one works overtime and therefore, overtime allowance is to be deducted from the gross salary. 11. After assessing monthly income of appellant, the Claims Tribunal has added 10% to his income towards future prospects, which is not as per decision of Hon’ble Supreme 6 Court in case of National Insurance Company Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680, according to which, 25% is required to added for the self-employed person of the age group of 40 to 50 years. In case at hand also, claimant-appellant on the date of accident was 45 years old and was not in permanent employment, hence there will be addition of 25% of established income of appellant towards future prospects for ascertaining his total income for calculating amount of compensation, and not 10% as added by the Claims Tribunal. It is ordered accordingly. 12. It is evident from the material and evidence available in record of claim case that the appellant/ claimant in this appeal had sustained fracture injury to his right leg and his right leg below knee was amputated. Injuries sustained by appellant and treatment taken by him are evident from the admission form (Ex.P-8), discharge summary (Ex.P-7), other medical documents (Ex.P-24 to P-68) and disability certificate (Ex.P- 69) and was further supported by oral evidence of appellant- claimant and the doctor examined as AW-2 & AW-3. Dr. Santosh Sahu (AW-2) has stated that on 5.9.2015 appellant was admitted in hospital thrice for treatment of injury suffered by him in right leg, he underwent surgery thrice and his right leg was amputated below knee. Dr. P.K. Gupta (PW-2) has stated in his evidence that since 2009 he is regular member 7 of District Medical Board, on 10.5.2016 appellant appeared before the Medical Board for issuance of disability certificate and after examining the case of appellant as per Disability Manual, the Medical Board issued a certificate to the effect that permanent disability caused to appellant is 60%. The Tribunal, however, had considered the loss of earning capacity of appellant/claimant at 50% without assigning any proper reason. 13. In case of Raj Kumar vs Ajay Kumar & another, reported in (2011) 1 Supreme Court Cases 343, Hon'ble Supreme Court has settled the law regarding grant of compensation with respect to the disability, which reads as under:- “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 8 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 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. 14. True it is that disability certificate is with respect to part of the body on which injured suffered permanent disability and it is 9 not for the whole body. Even if the permanent disability for the whole body is of lower, the loss of income can be more looking to the nature of work which the injured was doing. Indisputably, in the facts of the case and evidence brought on record, appellant was working as Labourer in a cement factory, meaning thereby he was required to do heavy work. Nature of employment, as pleaded and stated by appellant is of Labourer in cement factory, which is not in dispute. For the purpose of labourer work, a person should be abled body, fit to take all nature of works including lifting heavy articles, carrying and shifting the same from one place to another. Looking to the nature of disability suffered by appellant, it is clear that appellant may not be able to do same nature of work which he was doing prior to accident and which will definitely cause loss of income to him. Therefore, looking to the nature of disability i.e. amputation through middle of right leg, nature of employment of appellant and disability certificate (Ex.P-72) issued by the Medical Board assessing disability to the extent of 60%, this Court is of the view that the Claims Tribunal ought to have assessed the permanent disability causing loss of earning capacity at 60% in place of 50%. 15. Due to the amputation of leg below knee, the petitioner would not be able to enjoy the amenities of life as another normal 10 person can. The disability suffered by him would also have an impact on his social and married life. Therefore, in given facts and circumstances of case, I deem it proper to award a sum of Rs.30,000/- to the appellant towards loss of amenities in life. 16. The Claims Tribunal awarded a sum of Rs.30,000/- towards pain and sufferings, which in the given facts and circumstances of the case is just and proper. However, the amount of Rs.10,000/- awarded under the head of nutritious diet and medical attendant is on lower and accordingly, the appellant is awarded Rs.10,000/- towards special diet and Rs.5,000/- medical attendant. Appellant has taken inpatient treatment in Shree Narayana Hospital, Raigarh for a period of six days, as mentioned in discharge summary (Ex.P-7), during this period he might have spent some amount towards conveyance and hence, the appellant is awarded a sum of Rs.5,000/- as compensation under the head of conveyance.
Decision
17. For the foregoing reasons, this Court proposes to recompute the amount of compensation payable to the appellant. 18. Accordingly, the income of appellant is taken as Rs.6,559/- and after adding 25% towards future prospects, as held by Hon’ble Supreme Court in Pranay Sethi (supra), the annual income of the appellant comes to Rs.98,388/- (6559+25% of 11 6559 x 12). Applying the multiplier of 14, as applied by the Claims Tribunal as per decision of Hon'ble Supreme Court in case of Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, total income comes to Rs.13,77,432/-. As already held in preceding paragraph that appellant suffered 60% loss of earning capacity, therefore, appellant has suffered loss of income of Rs.8,26,459/- (60% of 1377432). Besides this, appellant is entitled for Rs.30,000/- towards pain and suffering; Rs.10,000/- for special diet; Rs.5000/- for medical attendant; Rs.5,000/- towards conveyance expenses. In addition to aforementioned amount of compensation, appellant-claimant will also be entitled for Rs.65850/- towards medical expenses, as awarded by the Claims Tribunal but did not added in the total amount of compensation. Appellant is also entitled for a sum of Rs.30,000/- for loss of amenities in life. Now, the appellant is entitled for a total compensation of Rs.9,72,309/- (826459+65850+30000+30000+10000+5000+5000) in place of Rs.6,46,060/-, as awarded by Claims Tribunal. This amount of compensation shall carry simple interest @ 9% p.a. from the date of filing of claim application till its realization. 19. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount already paid to appellant as compensation shall be adjusted from the total amount of 12 compensation as calculated above. 20. 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 SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI Date: 2025.03.26 13:27:47 +0530 roshan/-