Oriental Insurance Company Ltd., Vs Gyasudin Ansari

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2025:CGHC:40049

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1118 of 2019

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Oriental Insurance Company Ltd., Through Divisional Manager, Oriental Insurance Company Limited, Divisional Office, Geetanjali Bhawan , Main Road, Korba District Korba Chhattisgarh., District : Korba, Chhattisgarh

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... Appellant (s)

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versus

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1 - Gyasudin Ansari S/o Ahmad Aged About 38 Years Resident - 15, Block Korba, Tehsil And District Korba Chhattisgarh. (Claimant)

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2 - Ranjit Singh S/o Jashveer Singh, Resident Bankimongra, Tehsil Katghora, District Korba Chhattisgarh. (Driver)

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3 - Suraj Pandey S/o Devkaran Pandey, Resident - Amrayyapara Korba Tehsil And District - Korba Chhattisgarh. ( Owner )

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... Respondent(s)

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For Appellant (s) : Mr. Sudhir Agrawal, Advocate For Resp. No. 1 & 3 : None appears though served _______________________________________________________

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board

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11/08/2025

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There is no representation on behalf of respondent No.1/claimant and owner/respondent No.3 though served. Notice sent to respondent No.2

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Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.23 10:53:17 +0530

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driver of offending vehicle is reported to be un-served.

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Learned counsel for the appellant- Insurance Company submits that challenge in this appeal is to quantum of compensation awarded to the claimant/respondent No.1 who is served and therefore appeal may be heard finally at motion stage.

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Considering the submission of learned counsel for the appellant as also considering that record of claim case is available, prayer made by learned counsel for the appellant is allowed. Case is heard finally.

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) is filed by appellant Insurance Company challenging award dated 06.03.2019 passed by learned Additional Motor Accidents Claims Tribunal (FTC), District- Korba (CG) in Claim Case No.220 of 2013.

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Facts relevant for disposal of this appeal are that respondent No. 1/claimant filed an application under Section 166 of the Act of 1988 before the Claims Tribunal pleading therein that on 30.05.2013, near Murarka Petrol Pump, non-applicant No.1 while driving truck no. CG 12 S-3211 rashly and negligently lost control over the truck and dashed claimant’s motorcycle. In accident, claimant suffered head injury, his left leg was crushed and injuries on other parts of the body. During treatment, claimant's left leg was operated at Apollo Hospital and amputated. Claimant is not able to walk, work and suffered permanent disability. It was further pleaded that claimant was earning Rs.17,200/per month from his business. He claimed total compensation of

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Rs. 46,00,000/- with interest from the non-applicants under different heads.

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Non-applicant No.2 by filing his written statement, denied the pleadings made in the claim application and pleaded inter alia that accident was not caused by the driver of the offending vehicle. Applicant could not control himself while driving his motorcycle and met with an accident due to his own negligence. Applicant is not entitled to get any kind of compensation. As on the date of accident, offending vehicle was insured with non-applicant No.3/Insurance Company, liability if any to satisfy the amount of compensation would be upon respondent No.3.

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Non-applicant No.3/Insurance Company by filing its written statement resisted the claim and pleaded inter alia that non-applicant No. 1 was not having valid and effective driving license to drive the insured vehicle, offending vehicle was being plied in gross violation of essential conditions of insurance policy. Accident occurred due to the applicant's own negligence and careless driving, hence applicant is not entitled to claim compensation. Claimant in collusion with non-applicants No. 1 & 2 filed application seeking compensation in an unfair manner.

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Learned Claims Tribunal, upon 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 suffered grievous injuries resulting in his permanent disability. Recording a finding that breach of conditions of insurance policy was not found proved, non-applicants were held liable to pay amount of

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compensation, calculated compensation under different heads, and awarded total sum of Rs.45,99,870/-.

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Learned counsel for the appellant Insurance Company has raised three grounds to challenge impugned award stating that amount of compensation awarded is much on higher side. He submits that in the pleadings of claim application, claimants/injured has specifically pleaded that he was running a garage and doing work of Mechanic, garage is still running by him and therefore claimant did not suffer loss of income to the extent of 100% as held by Claims Tribunal. Relying upon the evidence of Dr. Ghanshyam Diwan (AW5), he submits that claimant suffered only 32% permanent disability of whole body, disability suffered by claimant is with respect to one leg and therefore percentage of disability as mentioned in disability certificate Ex.P-14 of 80% would not be the same for assessing loss of income suffered by claimant. In support of his contention, he places reliance upon decision in case of Sushma H.R. and Anr. Vs. Deepak Kumar Jha & Ors . [ 2022 (4) T.A.C. 422 (SC) and Pappu Deo Yadav Vs. Naresh Kumar and Ors (2020 ACJ 2695). He also contended that Claims Tribunal has awarded Rs.45,99,870/ assessing income of claimant based on income tax return as Rs.2,05,470/- . However, income tax has not been deducted from the said income. He also contended that learned Claims Tribunal in its earlier order sheet dated 13.10.2017, while deciding the application under Order 11 Rule 12 of CPC had observed that income tax return which was sought to be produced was not produced at that time, therefore, it will not be considered in future. However, Claims Tribunal on subsequent date of hearing on 29.08.2018 has taken into

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consideration the income tax return submitted by claimant in support of income as pleaded in the claim application which is erroneous. He also contended that as claim proceedings continued for period of more than five years for which appellant /non-applicant No.3 is not liable and therefore imposition of interest from date of filing of claim application till realization of compensation amount ought not to have been awarded.

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I have heard learned counsel for the appellant and also perused record of claim case.

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So far as the submission of learned counsel for the appellant that as per pleading, claimant was running garage being motor Mechanic, after motor accidental injuries, he became disabled to some extent, garage has not been closed and therefore he will not suffer loss of 100% income is concerned, claimant/injured in the claim application has pleaded that due to disability suffered by him on account of amputation of his left leg he is not in a position to move and not able to do work of Mechanic and run garage, his garage was closed. To prove the pleading made in claim application, claimant himself was examined as AW2. In examination in chief also he stated that due to crush injury suffered over his left leg in accident his left leg was amputated during course of treatment at Apollo Hospital Bilaspur. In para-5 of his examination in chief he stated that earlier he was doing the work of motor Mechanic of heavy vehicles in his workshop at Transport Nagar, Korba. Nature of work was heavy work as he has to take out the engine, he has to climb vehicle and come-down from heavy vehicles and from date of accident due to permanent disability suffered by him

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he is not able to do such work and his garage was closed.

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Learned counsel for the appellant insurance company referring to para16 of cross-examination to the evidence of AW2 would submit that in his cross-examination he admitted that his workshop is still running. Perusal of para-16 of cross-examination of this witness would show that though at one place it is mentioned that his workshop at Transport Nagar, Korba is running at Plot No.158, however, immediately thereafter he corrected himself and stated that his workshop is not running. Considering the entire evidence available on record of AW2 as also pleadings made in claim application, submission of learned counsel for appellant that workshop of appellant which he was running prior to date of accident is still continuing, in the opinion of this Court, is not acceptable. For appreciating a particular fact entire evidence of a witness is to be read and it is not to be read in isolation. Considering pleadings made in claim application as also evidence of AW2 it is not proved that garage which was running by claimant is still continuing even after motor accidental injury in the form of permanent disability suffered by him and therefore submission of learned counsel for appellant to that extent is repelled.

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The other submission of learned counsel for appellant that claimant suffered 32% permanent disability based on deposition of Dr. Ghanshyam Diwan (AW5) is concerned, in the evidence, this witness has stated that as per disability certificate, claimant suffered 80% permanent disability on left leg. He also stated that his left leg was amputated from thigh and permanent disability with respect to whole

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body has been stated to be 32 %. For purpose of computing amount of compensation in case of permanent disability it is not only the percentage of disability as assessed by expert is to be considered but while computing amount of compensation to be awarded to injured/claimant, nature of occupation also plays an important role and therefore in view of evidence of doctor that claimant suffered 32% permanent disability for whole body and therefore loss of income to be assessed in that ratio only is not correct and therefore it is repelled.

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In the case at hand according to pleadings made in claim application, claimant was working as motor Mechanic in the name and style of Gayasudin Heavy Machinery Work. It is also pleaded that due to permanent disability suffered by him on account of motor-accidental injury he is unable to do work of his garage and it is closed. In evidence also, similar statement has been made by claimant. AW1 Ravi Kumar Maini examined by claimant has also stated that prior to accident claimant was doing work of heavy vehicle motor mechanic and after amputation of his leg he is unable to do work. Looking to nature of work with which the claimant was engaged prior to accident of motor Mechanic of heavy vehicles, claimant may have to work while climbing the vehicle, getting down beneath the vehicle and some time has also to lift the heavy parts of motor vehicle which as of now claimant may not be able to do the same.

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There is clear evidence of claimant before the Claims Tribunal that due to permanent disability suffered by him he has to close his garage. This evidence of claimant is not controverted by non-applicant/insurance

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company by placing any other substantive evidence that even after date of accident and injury suffered by claimant he is still running garage.

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Hon’ble Supreme Court in case of Raj Kumar Vs. Ajay Kumar and Anr. (2011) 1 SCC 343 while considering the award of compensation in a permanent disability case has observed thus:

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“13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.”

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Hon’ble Supreme Court in case of Raj Kumar (supra) has also considered the effect of permanent disability on earning capacity giving examples with regard to nature of work which injured person was doing prior to accident and held thus :

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“14. For example, if the left hand of a claimant is

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amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.”

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As discussed above, in case at hand, claimant was working as motor Mechanic. Work of Mechanic is to be discharged by hands and therefore in the facts of case there may not be 100% functional disability affecting loss of 100% income. Under the Employee’s Compensation Act, 1923, affect on earning capacity on account of loss of limb is provided under Part-II Schedule -1, according to which loss of

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earning capacity due to loss of lower limb above knee is provided as 70%. However, considering the nature of work in which claimant was engaged of Mechanic, I am of the view that loss of earning capacity can be considered to extent of permanent disability as mentioned in disability certificate i.e. 70%. It is ordered accordingly.

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For the foregoing discussions, I find it appropriate to re-compute the amount of compensation as under:-

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S. N.	Heads		Compensation
1.	Loss of total Income (A)Annual Income = Rs.2,05,470/-	:	(+) Rs. 30,20,409
	(B) Addition towards future prospects @ 40% (i) 2,05,470 x 40%=82,188) (ii) 2,05,470 + 82,188 =2,87,658/- (C)Loss of earning capacity of 70% (287658 x 70 %=201360.6) (D)Multiplier of 15 201360.6 x 15= 30,20,409/-
2.	Attendant & Conveyance Expenses	:	(+) Rs. 25,000
3.	Medical Treatment	:	(+) Rs. 2,10,000
4.	Special Diet	:	(+) Rs. 10,000
5.	Pains and Suffering	:	(+)Rs. 75,000
6.	Loss of Amenities in Life	:	(+) Rs. 75,000
	Total compensation	:	Rs. 34,15,409

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Now the respondent No.1/claimant is awarded total compensation of Rs.34,15,409/- instead of Rs.45,99,870/- as awarded by the Claims Tribunal.

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Aforementioned total amount of compensation shall carry interest @

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8% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Rest of the conditions

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of impugned award shall remain intact.

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Appeal is accordingly allowed in part and the impugned award stands modified to the extent indicated above.

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Sd/-

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(Parth Prateem Sahu) Judge

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Praveen

Oriental Insurance Company Ltd., v. Gyasudin Ansari

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Oriental Insurance Company Ltd., v. Gyasudin Ansari

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