The Oriental Insurance Company Limited Vs Dinesh Kumar Rathore

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2025:CGHC:42687

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ALFIZA ALFIZADigitallysigned byBAIG BAIG Date:2025.10.0711:10:59+0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 578 of 2019

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The Oriental Insurance Company Limited Through Divisional Manager, The Oriental Insurance Company Limited, Divisional Office - Gitanjali Bhawan Main Road Korba District Korba Chhattisgarh

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--- Appellant

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versus

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1 - Dinesh Kumar Rathore S/o Suresh Kumar Rathore Aged About 28 Years R/o Village Raliya Tehsil Katghora, District Korba Chhattisgarh.........Applicant

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2 - Shiv Kumar Pandey S/o Buddh Sen Aged About 32 Years R/o Naunkhurd, Thana Hanumana District Riwa M. P. Present Address Divya Niwas, College Chowk Hardibazar, Police Chowki Hardibazar, Tehsil Pali, District Korba Chhattisgarh...............Driver

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3 - Special Blast Limuted R/o Nathani Building Shastri Chowki Raipur Tehsil And District Raipur Chhattisgarh..............Owner

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--- Respondents

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MAC No. 637 of 2019

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Dinesh Kumar Rathore S/o Shri Suresh Kumar Rathore Aged About 28 Years R/o Village- Raliya, Tahsil- Katghora, District- Korba, Chhattisgarh.

--- Appellant

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Versus

1 - Shiv Kumar Pandey S/o Shri Buddh Sen Pandey Aged About 32 Years R/o Naunkhurd, Police Station- Hanumana, District- Riwa, Madhya Pradesh, At Present R/o Divya Nivas, College Chowk, Hardi Bazar, Police ChowkiHardibazar, Tahsil- Pali, District- Korba, Chhattisgarh.

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2 - Special Blast Limited R/o Nathani Bulding Shastri Chowk, Raipur, Tahsil And District- Raipur, Chhattisgarh.

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3 - The Oriental Insurance Company Limited Through Division Manager,the Oriental Insurance Company Limited, Division Office- Geetanjali Bhawan, Main Road, Korba, District- Korba, Chhattisgarh.

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	---Respondents
For Appellant in MAC No. 578/2019	: Mr. Sudhir Agrawal, Advocate appears along with Mr. Prasanjeet Dutta, Advocate
For Respondent No. 3 in	: Mr. Tejasva Deo, Advocate appears on behalf
MAC No. 578/2019	of Mr. Vinod Pandey, Advocate
For Appellant in MAC No. 637/2019	: Mr. P. Acharya, Advocate
For Respondent no. 3 in	: Mr. Sudhir Agrawal, Advocate
MAC No. 637/2019

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Hon'ble Shri Justice Parth Prateem Sahu

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Judgement On Board

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22.08.2025

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As both these appeals are arising out of common award dated 25.10.2018 passed in Claim Case No. 33/2014 between Dinesh Kumar Rathore Versus Shiv Kumar Pandey, therefore, both the appeals are being heard and decided together by this common judgment.

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MAC No. 578 of 2019 is filed by appellant-Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award dated 25.10.2018 passed by learned Additional Tribunal to learned Additional Motor Accident Claims Tribunal, Katghora, District-Korba, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 33/2014, on the ground that learned Claims Tribunal has assessed functional disability of claimant to the extent of 79.4% as mentioned in disability certificate without determining functional disability suffered by claimant with respect to whole body. It is contended that claimant himself has given resignation from the service and, therefore, it cannot be considered that he was removed from the service due to disability suffered by him, if any. Last ground which has been raised is that offending vehicle was a tanker, however, on the date of accident driver of offending vehicle i.e. non-applicant no. 1 was not possessed with valid and effective driving license, further tanker was converted as a container truck without prior permission from RTO concerned.

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MAC No. 637 of 2019 is filled by appellant/claimant seeking enhancement in amount of compensation awarded in Claim Case No. 33/14 on the ground that learned Claims Tribunal has overlooked the nature of permanent disability suffered by him, part of the body in which appellant suffered permanent disability and assessed functional disability resulting in 100% loss of claimant’s earning capacity as the claimant has to leave the job due to his inability to perform or discharge the work which he was doing earlier. No compensation is awarded towards loss of marriage prospect and conveyance

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expenses, overlooking documents/bills produced by claimant of Dwarka Travels and Transport (Ex. P/110) amounting to Rs. 36,300/-.

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

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As the manner in which accident occurred, motor accidental injuries suffered by claimant due to involvement of offending vehicle bearing registration no. CG 04 JC 2957 driven by non-applicant no. 1, owned by non-applicant no. 2 and insured by non-applicant no. 3 is not in dispute, therefore, this Court is not entering into the factual aspects of the case and is only considering the grounds as raised by counsel for respective parties in their memo of appeals.

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So far as the ground raised by appellant-Insurance Company before this Court during the course of argument that Claims Tribunal erred in holding that deceased suffered 100% loss of earning capacity is concerned, perusal of record would show that after motor accidental injuries suffered by claimant in accident dated 23.11.2013, he took treatment from Apollo Hospital, Bilaspur for the period from 23.11.2013 to 09.12.2013. Discharge summary of Apollo Hospital, Bilaspur is filed as Ex. P/36 in which under “principle diagnosis” column there is mention of injuries suffered by him which reads as under:-

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“crush injury B/L leg with compound fracture, tibia 昀椀bula (left), extruded talus right side, small lacerated wound left elbow.”

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The claimant thereafter, took treatment from Narayan Hospital, Raipur from 27.12.2013 to 19.01.2014. Discharge summary is filed as Ex. P/21. Under history column following has been mentioned:-

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“H/o old trauma due to RTA last month 23 Nov. 2013 collision of motor bike with truck at Deepka, Korba operated fracture T.F. left

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lower end elsewhere come here for further management and treatment.

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Non diabetic, normotensive

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H/o Sx- left T.F. Lower end, with right foot multiple K. wire 昀椀xation last month Nov. 2013.”

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When even after lapse of sufficient time, the injuries suffered by claimant could not be cured fully, he appeared before the Medical Board District Hospital, Korba for obtaining disability certificate which is filed as Ex. P/12. The Doctor examined him, had determined permanent disability to the extent of 79.04% and mentioned following in diagnosis column:-

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“Dislocation of right ankle, vertebral (operated) and under the column of permanent physical disability mentioned 79.04%.”

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To prove the disability certificate issued by District Hospital, Korba claimant examined Dr. P.P. Singh as AW-02 who in his evidence has stated that claimant suffered permanent disability of 56.6% on his right leg and 22.80% on left leg. From the evidence available, documentary and oral, it is apparent that claimant suffered permanent disability on both of his leg. Submission of counsel for appellant-Insurance Company stated that loss of income determined by Claims Tribunal taking the percentage of disability as shown in disability certificate to be erroneous and it will be less than what is determined. Whereas, the claimant in the appeal seeking enhancement, addressed the ground that though percentage of permanent disability as mentioned in disability certificate is 79.04%, however, claimant suffered 100% loss of earning capacity and he is unable to do any work.

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Hon’ble Supreme Court in the matter of Raj Kumar Vs. Ajay Kumar and Anr. Reported in 2011 (1) SCC 343 , while considering the issue with regard to award of compensation in case of permanent disability

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have issued guidelines with regard to computation of loss of earning capacity for awarding compensation has observed as under:-

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“12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:

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(i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

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If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

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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 ability (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 Apex Court in the aforementioned decision has also observed

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that loss of future earning may be more or less than the percentage of permanent disability as assessed by the Medical Board or Doctor and

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mentioned in the disability certificate looking to the nature of employment in which they were engaged, prior to the date of accident.

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In the case at hand, the claimant was employed as Turner in Iron Coal Beneficial Limited, he has to work on lathe machine, as pleaded by the claimant in claim application and stated by claimant as well as HR Manager of the Company, Saurabh Shrivastava (AW-02) before the Claims Tribunal.

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From the aforementioned facts of the case it is apparent that the claimant was doing work of Turner prior to the date of accident and working on lathe machine for which the claimant is required to keep standing for doing the work in which he was engaged. Job of Turner is a technical work and due to injury suffered by claimant, more particularly the permanent disability on both of his leg, it may not be possible for him to do his work of Turner continuously standing on lathe machine. In case of Pappu Deo Yadav (S) v. Naresh Kumar And Others (S). (2020 INSC 553) Hon’ble Supreme Court while considering aspect of loss of earning capacity in case of amputation of one hand of claimant (therein) has observed thus:-

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“20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in

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relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case.”

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In the case at hand, undisputedly the claimant suffered permanent disability on both of his legs. For the work of like nature in which claimant was engaged, needs both the leg’s foot so as to stand and to move in discharge of his work. Therefore, in light of the decision in case of Raj Kumar (supra) and Pappu Deo (supra), in the opinion of this Court, learned Claims Tribunal erred in not determining the functional disability of the claimant to the extent of 100%. Accordingly, it is ordered that claimant suffered physical disability rending him incapable to carry out the profession as he was doing before accident, and thus amounting to 100% functional disability.

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So far as the second ground raised by counsel for appellant that registration of vehicle is of Tanker, however, it was converted without taking prior permission from the Competent Authority to a truck container, is concerned, there is no specific evidence available in the record of claim case. The leaned Claims Tribunal in para no. 26 of award recorded categorical finding that the insurance company could not be able to prove that the vehicle on the date of accident was driven in breach of policy conditions. The witness examined by the Insurance Company i.e. NAW-3-1 Animesh Tandon, in his evidence stated that the vehicle was registered as Tanker, however, he could not able to say that the tanker to carry water or inflammable fuel like petrol. He

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also contended that nothing is mentioned with regard to shape of tanker. Vishnu Kumar Dewangan, NAW-02 who in his evidence has stated that no change has been made to the vehicle since 2011. By that vehicle emulsion is supplied, which is in liquid form of grease. It is not the ballistic goods. The vehicle by which ballistic goods transported is other vehicle.

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From the aforementioned evidence available on record it is not evident that make of vehicle has been changed, subsequent to the registration or in the vehicle any inflammable/hazardous goods were transported. Therefore, in the facts of case, counsel for appellant though referred evidence however, could not able to point out that finding recorded by learned Claims Tribunal in para no. 26 is perverse to the evidence available on record. In the aforementioned facts of the case the second submission made by counsel for the appellant is also not sustainable. Accordingly it is repelled.

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In view of above conclusion arrived by this Court, the ground raised by counsel for appellant Insurance Company that the driver of the offending vehicle was not possessed with valid and effective driving license is also not having force and same is repelled.

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Claims Tribunal has not awarded the amount of compensation under conveyance head. Admittedly, claimant is resident of Korba, after accident he took treatment initially from Apollo Hospital, Bilaspur and thereafter, from Narayan Hospital, Raipur also. The medical documents which are available on record show that claimant has travelled to hospital from place of his residence continuously from the date of accident till 2015. Therefore, considering the place of residence, period of treatment and also that he took treatment at

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Apollo Hospital, Bilaspur and Narayan Hospital, Raipur, I find it appropriate to award Rs. 25,000/- towards conveyance expenses. It is ordered accordingly.

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Taking note of nature of permanent disability suffered by claimant, submission made by counsel for appellant/claimant that claimant has lost marriage prospect is not sustainable. In view of the pleadings made in claim application in para no. 24 and proved by examination of HR Manager of the same company, the said submission is accordingly repelled.

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However, from the nature of injured, it is apparent that appellant will not be able to enjoy his married life and would suffer loss of amenities in life and therefore, I find it appropriate to award Rs. 50,000/- towards loss of amenities in life. It is ordered accordingly.

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Now the claimant shall be entitled for total sum of compensation of Rs.37,94,451/- instead of Rs.37,19,451/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry simple interest @ 8% p.a. from the date of filing of claim application till its realization. Any amount paid to the claimant pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Rest of the conditions as imposed by the Claims Tribunal in the impugned award shall remain intact.

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In the result appeal filed by the insurance company MAC No. 578/2019 being sans merit is dismissed and the appeal filed by the claimant in MAC No. 637/2019 is allowed in part. sd/-

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(Parth Prateem Sahu)

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Judge

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alfiza

The Oriental Insurance Company Limited v. Dinesh Kumar Rathore

Case brief

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The Oriental Insurance Company Limited v. Dinesh Kumar Rathore

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