Shanta Nath Vs Dadda Alis Sushil Kumar

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

M.A.(C) No. 11 of 2017

Shanta Nath, S/o Late Mohan Lal Panika, aged about 42 Years, R/o Village Dodaki, P.S. Kelhari Tahsil Manendragarh, Distt. Korea, Chhattisgarh ................Claimant

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--- Appellant

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Versus

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Dadda Alis Sushil Kumar, S/o Kishan Lal Agrawal, R/o Ward No.20 Manendragarh, Distt. Korea, Chhattisgarh

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The Oriental Insurance Company Limited, Through Branch Manager, Mauharpara In Front of E.Ed. College Manendragarh P.S. And Tahsil Manendragarh District Korea, Chhattisgarh Insurance Company Of Offending Vehicle Qualis Reg. No. M P/18 C/1362, District : Koriya (Baikunthpur)

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--- Respondents

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___________________________________________________________________ For Appellant : Smt. Usha Chandrakar, Advocate. For Respondent No.2 : Shri N.K.Malviya, Advocate.

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Hon'ble Shri Justice Sachin Singh Rajput Order on Board

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08/05/2024

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1. The appellant / claimant has filed this appeal under Section 173 of Motor Vehicles Act, 1988 (for short ‘MV Act’), being aggrieved by the award dated 23/08/2016 passed in MACC No. - 43/2014 by the I Additional Motor Accident Claims Tribunal, Manendragarh, District – Korea (C.G.).

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2. By the impugned award, against a claim of Rs.06,00,000/-, the learned Tribunal has awarded compensation of Rs. 26,000/- on account of injuries sustained by the appellant/claimant in an accident that occurred on 08/08/2011 by rash and negligent driving of the offending vehicle Omni Car bearing registration No. MP/18/C/1362 driven by respondent No.1 / driver and owner and insured with the respondent No.2 / Insurance company.

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3. As per pleadings of the claim application, filed under section 166 of the MV Act, on the date of accident i.e. 08/08/2011, the appellant along-with Ramsunder had gone to Manendragarh and they were returning to Village-

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Doodaki by motorcycle. When they reached infront of Gandrakund para, Shivgarh, the driver of the offending vehicle Omni Car by rash and negligent driving dashed the motorcycle of the appellant. As a result, they fell down from the motorcycle and sustained severe injuries. They were admitted to the Central Hospital, Manendragarh and thereafter the appellant was treated at District Hospital, Baikunthpur where left leg was implanted with plate. He was performing the work of repairing of tyre puncture and also earned from agriculture work.

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4. The claim application was resisted by the respondents on various grounds including Insurance Company taking a plea that the offending vehicle was been driven in violation of the terms and Insurance of the Insurance Policy and there was contributory negligence on the part of deceased.

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5. On the basis of above pleadings, the learned Tribunal framed issues and decided the same in favour of the appellant / claimant and awarded the aforementioned compensation.

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6. Learned counsel for the appellant/claimant submits that finding with regard to disbelieving the disablement certificate by the learned tribunal is perverse, contrary to the record, amount of compensation is awarded is on lower side and his monthly income is also taken on the lower side and compensation on all other head is also on lower side which requires suitable enhancement by this Court. He further submits that Tribunal erred in not awarding in any amount of compensation for medical treatment.

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7. Learned counsel for respondent supports the award and submit that just compensation has been awarded.

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8. I have heard the learned counsel for the parties, considered their rival submissions and also perused the record.

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9. From the evidence available on record, it is established that the appellant / claimant had suffered 20 % permanent disablement on his leg. Though the

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doctor has stated that disablement is on particular portion and not of the entire body. However looking to the nature of job this court assessed functional disability to the tune of 10%. From the cumulative evidence brought on record, including the statement of the Dr. Rajendra Bansarte AW/2 and medical certificate issued by the Medical Board vide Ex.P/16 and

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also in light of judgment of Hon’ble Supreme Court in case of Rajkumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343, in which it has held that:

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“19. We may now summarize the principles discussed above:

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(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).

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(iii) the doctor who treated an injured claimant or who examined hims 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.

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(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.

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XXX XXXX XXXX

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27.“in a case of injured claimant with disability, what is calculated is the future loss of earning of the claimant, payable to the claimant (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one-third or any other percentage from out of the income, towards the personal and living expenses.

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10. Considering the entire evidence available on record, nature of job, minimum

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wages and the date of accident i.e. 08/08/2011, this court can assess the monthly income of appellant to Rs.4000/- and after adding 25% future prospects proceed to assess though record suggest that he must have

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incurred medical expenses, therefore this court is inclined to award notional

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expenses in the following manner:-

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S.No.	Head	Calculation
1.	Income of the deceased @ 4000/- per month	Rs.48,000/- per annum (4000X 12)
2.	Future prospect 25%	Rs.12,000/-
3.	Total Yearly Income	Rs.60,000/- (48,000 + 12000)
4.	10% functional disability	Rs.6000/- (60,000 x 10)
5.	Multiplier of 14 to be applied	Rs.84000/- (6000 x 14)
6.	For Medical Bills	Rs.2000/-
7.	For enjoyment of life	Rs.5000/-
8.	For special diet	Rs.2000/-
9.	For Attendant	Rs.3000/-
10.	For loss of income during treatment	Rs.8000/-
11.	For pain and suffering	Rs.10000/-
	Total compensation	Rs.1,14,885/-

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11. After deducting Rs.26,000/- as awarded by learned Tribunal, the appellant / claimant held entitled for enhanced compensation of Rs.88,000/- with 6% interest from the date of claim application till realization to be paid by respondent No. 2 / Insurance Company within 60 days from the date of receipt of copy of this order.

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12. After deposit 90% amount shall be invested as FDR in the name of appellant / claimant for 02 years in a nationalized bank. Remaining amount be paid to him through bank transaction/account payee cheque. He is entitled to receive interest accrued on FDR.

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13. In the result, the appeal is allowed in part with modification in the award impugned to the above extent. Sd/-

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(Sachin Singh Rajput) Judge

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Ashish/H.Ansari

Shanta Nath v. Dadda Alis Sushil Kumar

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Shanta Nath v. Dadda Alis Sushil Kumar

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