Damodar Koudi S/o Purshottam Koudi Aged About 32 Years Permanent R/o Village Navadih, Police v. 1 - Gena Kewat S/o S.K. Kewat Through M/s T.N. Singh, Co- Container Corporation
Case Details
-1- 2025:CGHC:17930 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 714 of 2020 Damodar Koudi S/o Purshottam Koudi Aged About 32 Years Permanent R/o Village Navadih, Police Station Manhul, District Sambalpur (Orrisa) At Present R/o Village Siltara , Police Station Dharsiva , District Raipur Chhattisgarh. ---Appellant (s) versus 1 - Gena Kewat S/o S.K. Kewat Through M/s T.N. Singh, Co- Container Corporation Of India Ltd. R.D.S. Goods Shed, Kanpa, Raipur , Police Station Mova District Raipur Chhattisgarh. (Driver Of Vehicle No. N.L. 01/L - 6924) 2 - T.N.S. Lagi Park Pvt. Ltd. Through In Charge Officer Sachin Kumar, S/o Kamlesh Upadhyay, R/o Aadarsh Nagar, Mova, (In Front Of Samarpan Hospital), Police Station Mova , District Raipur Chhattisgarh (Owner Of Vehicle No. N.L. 01/ L- 6924) 3 - Future Generaly India Co. Ltd. Through In Charge Officer, Future Generaly India Co. Ltd. First Floor, Business Park , Thakur Pyarelal Ward, Raipur District Raipur Chhattisgarh (Insurer Of Vehicle No. N.L. 01/L- 6924) --- Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Rakesh Thakur, Advocate For Resp. No.3 : Ms. Harneet Kaur Khanuja, Advocate on behalf of Mr. Sourabh Sharma, Advocate _______________________________________________________ Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.04.25 14:20:13 +0530 -2- MAC No. 2 of 2020 Future Generali India Insurance Company Limited Through Its Legal Manager, Shop No.3, II Floor, Maruti Business Park, G.E. Road, Raipur, Tahsil And District Raipur, Chhattisgarh. ---Appellant (s) Versus 1 - Damodar Koudi S/o Purushottam Koudi Aged About 32 Years Permanent Address Village Nawadih, Police Station Manhul, District Sambalpur (Odisha) Present Address Village Siltara, Police Station Dharsinwa, District Raipur, Chhattisgarh 2 - Gena Kewat W/o S.K. Kewat Through M/s T.N. Singh Co-Container Corporation Of India Limited R.D.S. Goods Shed, Kanpa, Raipur, Police Station Mova, District Raipur, Chhattisgarh. 3 - T.N.S. Lagi Park Private Limited Through In-Charge Officer, Sachin Kumar, S/o Kamlesh Upadhyay, Adarsh Nagar, Mova (Near Samarpan Hospital), Police Station Mova, District Raipur, Chhattisgarh --- Respondent(s) __________________________________________________________
Legal Reasoning
ahead. It has been clearly stated by this Court in the case of Anant Son of Sidheshwar Dukre (Supra) that the purpose of fair compensation is to restore the injured to the position he was in prior to the accident as best as possible. The relevant paragraph of the judgment is being extracted herein: -10- “In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but for the injuries.” “The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.” 23. As per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/-.” 18. Taking into consideration the aforementioned decision of Hon’ble Supreme Court as also age of claimant to be 32 years and nature of permanent disability suffered by him i.e. amputation of right limb above knee, I am of the view that the claimant/appellant in this case is also entitled for the amount of compensation for purchase of one prosthetic leg. Taking into consideration the cost of prosthetic leg, I find it appropriate to award Rs.2,50,000/- to the -11- claimant for purchase of prosthetic leg which is required to be changed every 5 to 6 years and accordingly total amount of compensation for purchase of prosthetic leg is computed as Rs.7,50,000/- (2,50,000 x 3) and for maintenance of same he is awarded Rs.5,00,000/- in lump sum. The claimant who is a young man aged 32 years has suffered amputation of right leg and, therefore, I find it appropriate to award Rs.2,00,000/- lakh towards ‘pain and suffering’. Appellant/claimant has to live his entire life ahead with the current disability. He cannot enjoy his marital and social life like an ordinary man and, therefore, I find it appropriate to award Rs.2,00,000/- towards ‘loss of amenities of life’. Claimant is further entitled for compensation of Rs.2,00,000/- on the head ‘loss due to disability and disfigurement’. 19. In the aforementioned facts of the case, I find it appropriate to re- compute the amount of compensation as under:- S. N. Heads Compensation 1. 2 3. Expenses towards treatment taken in hospital and medicines Attendant Charges Expenses towards nutritious food transportation etc. 4. Physical pain and mental agony 5. 6. 7. Future medical expenses Loss of amenities of life Cost of Prosthetic Limb and its maintenance : : : : : : : Rs. 8,98,404 Rs. 17,500 Rs. 25,000 Rs. 2,00,000 Rs. 50,000 Rs. 2,00,000 Rs. 12,50,000 Total compensation : Rs. 26,40,904 -12- 20. Now the claimant- Damodar Koudi is awarded total compensation of 26,40,904/- instead of Rs.36,89,724/- as awarded by the Claims Tribunal. 21. Aforementioned total amount of compensation shall carry interest @ 7.5% per annum from the date of filing of claim application till its realization. 22. At this stage, learned counsel for the Insurance company submits that pursuant to order dated 06.01.2020 passed by this Court in MAC No.2 of 2020, insurance company has already deposited 75% of the total compensation awarded by the Tribunal. 23. In the aforementioned facts of the case and considering the beneficial piece of legislation, appellant/insurance company will not recover from the claimant any amount already paid and deposited by the insurance company pursuant to order dated 06.01.2020. 24. MAC No.714 of 2020 and MAC No.2 of 2020 accordingly stand
Arguments
For Appellant (s) : Ms. Harneet Kaur Khanuja, Advocate on behalf of Mr. Sourabh Sharma, Advocate For Resp. No.1 _______________________________________________________ : Mr. Rakesh Thakur, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge 21/04/2025 Judgment On Board 1. With the consent of learned counsel appearing for the parties, the case is heard finally. 2. MAC No.714 of 2020 filed by applicant/claimant – Damodar Koudi and MAC No.2 of 2020 filed by Future Generali India Insurance Company Ltd. are being decided by this common order as both the appeals arise out of award dated 06.11.2019 passed in Claim Case No.686 of 2016 by learned Fourth Additional Motor Accidents Claims Tribunal, Raipur (CG). 3. Facts relevant for disposal of these two appeals are that on -3- 28.07.2016 at about 7.00 p.m., Damodar Koudi was going from Bhanpuri to Siltara on his motorcycle number CG 04 DZ 1310. When he reached near the pond in front of Jayaswal Neco Industries Ltd., driver of the Truck- Trailer NL 01/L-6924 i.e. non- applicant No.1, driving the offending vehicle rashly and negligently dashed against the motorcycle of Damodar Koudi and caused an accident, due to which, he fell down from the said motorcycle and suffered grievous injuries in his right leg. He got himself treated in the hospital from 28.07.2016 to 30.08.2016, however, even after treatment, his right leg was amputated above the knee, due to which Damodar Koudi has become permanently disabled and is completely unable to walk and work as before. 4. Applicant/claimant Damodar Koudi filed an application under Section 166 of the Act of 1988 before the learned Claims Tribunal pleading therein that at the time of the said accident, he was a 32 years old healthy person and was the only earning member to maintain his family. At the time of the accident, the claimant worked as a Fireman in Jayaswal Neco Industries Ltd., from which he was earning monthly income of Rs20,000/-. It was prayed that the applicant be given a total compensation amount of Rs.1,01,95,000/- from the non-applicants jointly and severally for the loss suffered by him. 5. Non-applicants No. 1 & 2 became ex-parte in the proceedings after filing of reply to claim application. They have denied all the facts in the claim application except the facts admitted by them in their written statement earlier and have stated that the said accident -4- occurred due to rash and negligent driving by the applicant himself. There is no negligence on the part of non-applicant No.1 in the said accident. The offending vehicle was insured by non- applicant No.3/Insurance Company. Therefore, the entire liability of paying the compensation amount lies on non-applicant No.3/insurance company. 6. Non-applicant No. 3/Insurance Company in their written statement denied all the facts of the claim application except the admitted facts and has stated that Section 64 VB of the Insurance Act has not been followed. The applicant has not suffered permanent disability. Since there was a collision between two vehicles in the case, the principle of contributory negligence will apply. The vehicle owner has not followed the provisions of the Motor Vehicles Act. The driver of the vehicle who caused the alleged accident did not have a valid and effective driving license. Therefore, claim against non-applicant No.3 is liable to be dismissed. 7. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non- applicant No.1 rashly and negligently, due to which, an accident occurred in which applicant/claimant suffered grievous injuries which resulted in permanent disability to the extent of 80%. Recording a finding that breach of conditions of the insurance policy was not found proved, learned Claims Tribunal held non- applicants liable to pay the amount of compensation and computed the loss suffered by the claimant under different heads, awarded -5- total compensation of Rs.36,89,724/ -. 8. Mr. Rakesh Thakur, learned counsel for the appellant/claimant- Damodar Koudi would submit that claimants have filed the appeal seeking enhancement of amount of compensation on the ground that learned Claims Tribunal erred in assessing loss of earning capacity of the claimant overlooking the nature of permanent disability suffered by him i.e. amputation of right leg above knee. 9. Ms. Harneet Kaur Khanuja, learned counsel appearing for respondent- Insurance Company would submit that the appeal is filed by insurance company challenging the quantum of impugned award on the ground that learned Claims Tribunal erred in awarding amount of compensation under the head of ‘loss of earning capacity’ overlooking the evidence available on record in particular the evidence of the claimant and also photographs produced by the Insurance Company as Ex.D-2 from which it is reflecting that even after the accident and the permanent disability suffered by the claimant, he is still working on the same post with same salary and therefore it cannot be said that the claimant has suffered any loss of earning capacity. 10. I have heard learned counsel for the parties and also perused the records of the claim case. 11. So far as the submission of learned counsel for the appellant/ insurance company that learned Claims Tribunal erred in awarding amount of compensation under the head ‘loss of earning capacity’ is concerned, undisputedly, the claimant suffered amputation of right leg above knee due to which he suffered permanent disability. -6- Ex.P-52 Disability Certificate is issued by the Medical Board mentioning disability of the claimant to the extent of 80%. Learned Tribunal has assessed loss of earning capacity due to permanent disability to the extent of 50%. 12. It is not in dispute that loss of earning capacity due to permanent disability may differ from person to person looking to the nature of occupation in which they were engaged prior to date of accident. A Driver of the vehicle may suffer 100% loss of earning capacity due to loss of his one leg and at the same time an employee working in the office sitting on chair may not suffer any loss of earning capacity. 13. Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar & Anr. (2011) 1 SCC 343, while dealing with the issue of ‘loss of earning capacity’ due to ‘permanent disability’ has observed thus : “19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). -7- (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” 14. If the facts and circumstances of this case are examined in the light of decision of Hon’ble Supreme Court in the case of Raj Kumar (supra) looking to the nature of employment with which claimant is engaged, it is appearing from the evidence on record that even after permanent disability suffered by the claimant, he was still continuing with his job/work in which he was engaged prior to accident. In his evidence, claimant stated that as he had taken loan from the bank for house repairing, therefore, even after suffering from permanent disability, he was permitted to continue in the job. Claimant has not examined the employer to prove the said fact that he was permitted to continue to work on the post of Fireman even after disability, only to re-pay the loan amount. On the other hand, the Insurance Company have produced the statement of Claimant as Ex.D-3 wherein claimant has accepted that he is earning Rs.18,000/- per month while working on the post of Fireman and he is still re-paying the amount of loan of Rs.2,50,000/- obtained for -8- the purpose treatment from his salary. The salary slip of the year 2017 has been produced as Ex. D-4. From the aforementioned facts and evidence available on record it is apparent that after the accident even after suffering permanent disability, claimant was continuing with his job and earning the salary. There is no admissible piece of evidence that due to permanent disability, claimant has suffered loss of income/earning in any manner or his salary was reduced and he was demoted. In the aforementioned fact of the case, I am of the view that the claimant has not suffered any loss of earning capacity. Claimant has even failed to prove that he has suffered loss of promotional prospects because no such evidence has been brought on record in this regard. 15. Therefore, in the opinion of this Court, learned Claims Tribunal erred in awarding amount of compensation under the head ‘loss of earning capacity’ to the extent of 50%. The said finding recorded by Tribunal and amount of compensation awarded towards ‘loss of earning capacity’ are set aside. 16. Though there is no specific pleading that the claimant is required amount of compensation for purchase and maintenance of prosthetic leg, however, looking to the fact of the case and nature of employment as also nature of injury of permanent disability suffered by the claimant, it is the duty of the Tribunal or the Court considering the claim of award of compensation of the claimant to award compensation under all the heads for which claimant is entitled. 17. Undisputeldy, the appellant/claimants was working as Fireman prior -9- to date of accident. He lost his right leg above the knee in the motor accident and therefore amount of compensation for purchase of prosthetic leg should have been awarded by learned Claims Tribunal . True it is that there is no specific evidence brought on record as to what would be the cost of purchase of prosthetic leg, however, Hon’ble Supreme Court in the case of Mohd. Sabeer alias Shabir Husain Vs. Regional Manager UP State Road Transport Corporation (AIR 2023 SC 186) has considered the award of compensation under the head ‘purchase and maintenance of prosthetic leg’. In the said case, claimant was aged 37 years and was an employee. He suffered permanent disability to extent of 70% over his right limb. It was observed as under: “22. The High Court has awarded a compensation of Rs. 5,20,000/- for the prosthetic limb and Rs. 50,000/- towards repair and maintenance of the same. The Appellant submits that the cost of the prosthetic limb itself is Rs. 2,60,000/- and the life of the prosthetic limb is only 5-6 years. The prosthetic limb also requires repair and maintenance after every 6 months to 1 year, and each repair costs between Rs. 15,000 to Rs. 20,000/-. This would mean that the prosthetic limb would last the Appellant for only 15 years under the current compensation. The Appellant at the time of the accident was aged 37 years and has a full life
Decision
disposed off. Sd/--/- Sd/- (Parth Prateem Sahu) Judge Praveen