1 – Monish Kumar Shah S/o Arvind Kumar Shah Aged About 29 Years Occupation v. 1 - Ramchand Sathpati S/o Prahlad Sathpati Aged About 35 Years Occupation - Vehicle
Case Details
1 2025:CGHC:13515 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 954 of 2019 1 – Monish Kumar Shah S/o Arvind Kumar Shah Aged About 29 Years Occupation - Service (G.M.R. Energy Angool Urissa) Permanent R/o Street No. 03, Vikasnagar, Kotraroad Raigarh, District Raigarh Chhattisgarh. ... Appellant versus 1 - Ramchand Sathpati S/o Prahlad Sathpati Aged About 35 Years Occupation - Vehicle Owner, R/o Mahuban Chhak Ariya, Police Station Paradeep, District Jagatsinghpur Udissa. 2 - Jashwant Sahu S/o Padiya Sahu, Occupation-Vehicle Driver, R/o Village-Mundamala Sahi, Police Station-Chandipada, District - Jagatsinghpur (Udissa) 3 - The New India Insurance Company Limited Through S.B.I Main Branch Kewdabadi, Near Bus Stand Raigarh Chhattisgarh ... Respondents For Appellant
Legal Reasoning
: Mr. Anand Kesharwani, Advocate on behalf of Mr.V.K. Pandey, Advocate. For Respondent No.3 : Mr. Anil Gulati, Advocate. 2 Hon’ble Smt. Justice Rajani Dubey, J Judgment on Board 21/03/2025 This appeal is by the injured claimant against the award dated 15.2.2019 passed by First Additional Motor Accident Claims Tribunal, Raigarh in Claim Case No. 108/2015 awarding total compensation of Rs.10,78,700/- with interest @ 9% per annum from the date of application till realization, fastening liability on the non-applicant No.3/insurance company. 02. As per claim petition filed under Section 166 of the Motor Vehicles Act, 1988, on 6.2.2014 at around 4:00 Hours the claimant was going to Village-Angul by his motorcycle bearing No. OD 19/3946. However, on the way non-applicant No.2/driver by driving vehicle Tata Truck bearing No. OR 04/L 9172 (hereinafter referred to as “the offending vehicle”) in a rash and negligent manner dashed his motorcycle as also one Aulto car parked there. At the relevant time, the offending vehicle was owned by non-applicant No.2 and insured with non-applicant No.3. In this accident, the claimant, who was 29 years of age and working as Junior Manager in GMR Energy and drawing monthly income of Rs.45,000/-, suffered serious injuries, remained in Apollo Hospital, Bhuvneshwar from 9.2.2014 to 22.4.2014; rod was inserted in his right hand and right leg which is to be removed through surgery in future. Hence he 3 claimed a total sum of Rs.19,27,905/- under various heads from the non-applicants. 03. Non-applicants No.1 & 2 did not file any written statement and remained ex-parte whereas non-applicant No.3 in its written statement denied the fact that the claimant was working as Junior Manager and drawing income of Rs.45,000/- per month. It also denied any such accident on 6.2.2014 by the offending vehicle. It was also contended that the claimant suffered injuries due to his own rash and negligent act. This apart, it was also stated that non-applicant No.2 was not having a valid and effective driving licence as also the vehicle was being plied without a valid fitness certificate and permit. Therefore, the insurance company is not liable to pay any compensation to the claimant. 04. Based on the pleadings of the respective parties, the learned Tribunal after appreciation of oral and documentary evidence on record passed the impugned award as mentioned above. Hence this appeal by the claimant for enhancement. 05. Learned counsel for the appellant/claimant submits that the Tribunal was not justified in assessing the income of the injured as Rs.4,500/- per month whereas it should have been taken as Rs.48,000/- as he was working as operating engineer. No amount for future medical treatment and future prospect has been awarded. The 4 Tribunal has also not awarded the total amount spent on medical treatment despite the claimant filing documentary evidence in this regard. Most importantly, the finding of learned Tribunal regarding contributory negligence of the injured is also erroneous as there is no evidence on record to substantiate this fact whereas it is proved by the claimant that non-applicant No.2/driver after hitting his vehicle also dashed a car parked on its side which clearly shows that non-applicant No.2 was solely responsible for this accident. 06. On the other hand, learned counsel for the respondent/insurance company supports the impugned award and submits that the Tribunal considering all the relevant aspects of the matter has rightly awarded compensation which needs no interference by this Court. 07. Heard learned counsel for the parties and perused the material available on record. 08. On the basis of pleadings of respective parties, learned Tribunal framed total six issues including Issue No.3 relating to contributory negligence which reads as under: वा(cid:2)द ्ቚ् नि(cid:7)ष्क्ቧ(cid:11) 3. क्या(cid:2) दु्ቈ(cid:11)ट(cid:7)(cid:2) ेሰ(cid:18) या(cid:19)गद(cid:2)या(cid:21) उपे(cid:24)ቌኋ(cid:2) क(cid:2) सि(cid:27)ኋ(cid:2)(cid:29)त हो# ्ቚेሰ(cid:2)णि%त " " ला(cid:2)ग हो(cid:19)त(cid:2) हो" ? While dealing with the said issue, learned Tribunal in para 10 of the impugned award observed that there was a head-on collision 5 between the vehicles; the applicant/claimant seeing the offending vehicle coming from opposite direction also ought to have ridden the motorcycle cautiously. Hence there is contributory negligence on the part of the applicant to the extent of 1/4th. 09. It is clear from the record of learned Tribunal that as per FIR (Ex.P/2) non-applicant No.2 Jashwant Sahu driver of truck bearing No. OR 04 L 9172 was rash and negligent. After full-fledged investigation charge sheet was filed against driver of the offending vehicle Jashwant Sahu. The applicant’s witnesses also stated that it is non-applicant No.2 who was responsible for this accident. 10. Non-applicant No.1 & 2, owner and driver of the offending vehicle, neither filed written statement nor did they appear before the learned Tribunal and remained ex-parte. As such, the oral and documentary evidence adduced by the claimant remain unrebutted. As such, there is nothing on record to prove that the applicant was in any manner responsible for or contributed to the accident. The finding of learned Tribunal regarding contributory negligence on the part of the applicant/claimant merely on account of there being head-on collision is not in accordance with law and therefore, it is liable to be set aside. 11. As regards income of the injured claimant, though he has pleaded that at the time of accident he was working as Operator Engineer and drawing salary of Rs.48,000/- pm, however, no oral or documentary evidence to prove his income or nature of job has been 6 adduced by him. Therefore, the learned Tribunal on notional basis assessed his income at Rs.4,500/- per month. However, considering the fact that the accident took place in the year 2014 when the minimum wages of unskilled labour was Rs.5,163/-, the same can safely be taken as income of the claimant in this case. 12. It is also seen from the record of the Tribunal that on account of this accident, the claimant remained hospitalized from 6.2.2014 to 9.2.2014 and again remained hospitalized from 9.2.2014 to 15.4.2014. As per the claimant he was bed ridden from nine months on the advice of the doctors. PW-2 Dr. Rajkumar Gupta states that the Medical Board after examination of the claimant issued disability certificate (Ex.P/131) which bears signature of Dr. Tondar, CMO and himself, and they found 20% permanent disability suffered by him. As per medical treatment papers of the claimant he was operated upon and rod was inserted in his right thigh and right hand. His evidence remain unrebutted in the cross-examination. Even after being discharged from hospital, the claimant would not have been in a position to work for a month or two as efficiently as he would be doing prior to such disability. However, learned Tribunal did not consider this aspect and awarded no amount even for loss of earning during the period he was confined to bed. Looking to the medical documents filed and proved by the claimant, the amount of Rs.8.11 lacs awarded towards medical expenses by the Tribunal appears to be just and proper. Thus, considering the facts and circumstances of the case, age of the claimant; the permanent 7 disability, the period of hospitalization; the nature of medical treatment etc. claimant is held entitled for compensation in the following manner: Heads Sl. No. Calculation 01. Income of the injured claimant @ Rs. 61,956/- per Rs.5,163/- per month. annum 02. Total loss of earning due to 20% Rs.2,10,647/- permanent disability. (20% of Rs.61,956/- x multiplier 17) 03. Loss of earning for 09 months Rs.46,467/- (Rs.5,163 x 9) 04. Medical expenses Rs.8,11,000/- (as awarded by Tribunal) 05. For pain and suffering 1,00,000/- (as awarded by Tribunal) 06. For attendant, conveyance and special Rs.50,000/- diet. Total: 12,18,114/- Since the Tribunal has already awarded Rs.10,78,700/-, after deducting the same from the above amount, the claimant is held entitled for additional compensation of Rs.1,39,414/- with simple 8 interest @ 9% per annum from the date of application till realization within a period of two months from today However, rest of the conditions of the impugned award shall remain intact. 13.
Decision
In the result, the appeal is allowed in part with modification in the impugned award to the above extent. Digitally signed by MOHD AKHTAR KHAN Date: 2025.03.22 13:41:57 +0530 MOHD AKHTAR KHAN Khan Sd/ (Rajani Dubey) Judge