Bhukhan Lal Vishwakarma Vs Hulas Sahu

Bhukhanlal Vishwakarma S/o Babadin Vishwakarma Aged About 54 Years R/o Dumar Talab, Tiwari Colony, Behind Amanaka Thana, Mahoba Bazar, Raipur, Tahsil and District Raipur Chhattisgarh. ( Claimant )

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Hulash Sahu S/o Rajju Sahu Aged About 20 Years Occupation Vehicle Driver And Owner, R/o Village Raveli, Sejbahar, Raipur, Tahsil and District Raipur Chhattisgarh………….( Non-applicant No. 1)

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--- Respondents

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WITH

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MAC No. 84 of 2019

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Bhukhan Lal Vishwakarma S/o Shri Babadeen Vishwakarma Aged About 54 Years R/o Dumar Talab, Tiwari Colony, Amanaka, Behind Police Station, Mahoba Bazar, Raipur, Tehsil and District Raipur, Chhattisgarh.

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--- Appellant/claimant

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Versus

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Hulas Sahu S/o Shri Rajju Sahu Aged About 20 Years Driver Cum Owner R/o Village Raveli, Sejbahar, Raipur, Tehsil and District Raipur, Chhattisgarh.

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National Insurance Company Limited Through Regional Manager, Regional Office, Mobin Mahal G. E. Road, Raipur, Chhattisgarh.

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--- Respondents

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For Insurance Company : Mr. Qamrul Aziz, Advocate For Claimant : Mr. Akhilesh Mishra, Advocate For Driver-cum-owner : Mr. Rahul Pathak, Adv. on behalf of Mr. PAWAN KUMAR Awadh Tripathi, Advocate JHA Digitally signed by PAWAN KUMAR JHA

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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07/07/2025

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As both the appeals are arising out of same award, therefore, they are being heard together and dispose of by this common order.

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Challenging the impugned award dated 07.09.2018 passed by Learned Second Additional Motor Accident Claims Tribunal, Raipur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 475/2016, Appellant-Insurance Company filed MAC No. 190/2019 under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the direction issued by the Claims Tribunal of pay and recover; and MAC No. 84/2019 is filed by the appellant-claimant seeking enhancement of amount of compensation of ₹ 2,09,000/- awarded by the Tribunal while allowing the application filed under Section 166 of the Act of 1988.

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Facts of the case relevant for disposal of this appeal are that on 01.01.2016 applicant-Bhukhan Lal Vishwakarma while riding his bicycle was going from Doomartarai to his work place at Tatibandh. As soon as he reached near Sarona over bridge, Ring Road Number 1, driver of motorcycle bearing number CG04H9468 (henceforth “offending motorcycle”) while driving his motorcycle rashly and negligently dashed the applicant and caused accident. In the accident, applicant Bhukhan Lal suffered grievous injuries. He was taken to Mekahara Hospital for treatment.

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Applicant-Bhukhan Lal filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 31,00,000/- pleading therein that on the date of accident, he was 54 years physically fit person. He was doing the work of Mechanic in M/s Ramesh Steel Plant, Tatibandh, earning ₹ 10,000 per month and also doing the work of Carpenter from which he was earning ₹ 8000/- per month, he was thereby earning ₹ 18,000/- per month.

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Non-applicant No. 1-Hulas Sahu, driver-cum-owner of offending motorcycle submitted reply to the application, while denying the pleadings made therein it was further pleaded that a false report has been lodged against him, no accident has been occurred from his motorcycle. It is stated that the offending motorcycle was insured by non-applicant No. 2, thus, the liability to pay the compensation would be of insurance company.

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Appellant/ non-applicant No. 3-Insurance Company submitted its reply, denying the pleadings made in the claim application and further pleaded that on the date of accident non-applicant No. 1 driver was not possessing valid and effective driving licence, thus there was breach of conditions of insurance policy. Exaggerate amount of compensation is claimed by the applicant.

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Learned Claims Tribunal upon appreciation of oral and documentary evidence brought on record by the respective parties, recorded a finding that the applicant-Bhukhan Lal Vishwakarma suffered grievous injuries in the accident arising out of rash and negligent driving of offending motorcycle by Non-applicant No. 1. Breach of conditions of insurance policy was found to be proved, calculated the amount of compensation and awarded total sum of ₹ 2,09,000, exonerated the insurance company from its liability to satisfy the amount of compensation and further directed the insurance company to first pay the amount of compensation and thereafter to recover the same from the owner of the offending motorcycle.

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Learned counsel for appellant-Insurance Company would submit that the Claims Tribunal recorded a finding that on the date of accident, non-applicant no. 1-driver of the offending motorcycle was not possessed with valid and effective driving licence, there was breach of conditions of insurance policy, however, has issued direction to appellant-Insurance company to first pay the

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amount of compensation and thereafter to recover the same from the owner of the offending motorcycle.

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Learned counsel for Respondent No. 2, owner of the offending motorcycle, would submit that the Claims Tribunal has considered the decision of Hon’ble Supreme Court in the case of Amrit Paul Singh and another v. Tata AIG General Insurance Company reported in (2018) 7 SCC 558 and issued direction. Hence, the impugned award, sofar as it relates to issuance of direction to Insurance company to satisfy the award and thereafter recover the same from the owner-cum-driver of the offending motorcycle cannot be said to be erroneous.

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Learned counsel for Respondent No. 1-claimant would submit that direction issued by the Claims Tribunal of pay and recover is just and appropriate in the facts of the case and in accordance with the decision of Hon’ble Supreme Court in the case of Amrit Paul Singh (supra) . He however submits that he has also filed separate appeal seeking enhancement of amount of compensation. He submits that the Claims Tribunal erred in disbelieving the disability certificate Ext. P-121 issued by the private doctor. He submits that the reason assigned by the Claims Tribunal for disbelieving the disability certificate is that the claimant has not underwent treatment from the doctor, who issued disability certificate, he is not a Government doctor nor a member of any Medical Board. He submits that the Tribunal has assessed the income of appellant-claimant on lower side overlooking the pleadings made in the claim application with regard to nature of occupation to be Fitter and earning ₹ 18,000/- per month. He submits that the amount of compensation awarded under the other heads is also on lower side.

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Learned counsel for Respondent No. 1/ owner-cum-driver in MAC No. 84/2019 of the offending motorcycle submits that the award passed by the Claims Tribunal is just and proper in the facts of the case. Claimant had not

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submitted any admissible evidence to prove nature of occupation and his income.

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

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So far as the submission made by learned counsel for appellant-Insurance Company, in MAC No. 190/2019, that the Tribunal erred in issuing direction of pay and recover is concerned, admittedly the Claims Tribunal exonerated the insurance company on the ground that on the date of accident driver of the offending motorcycle was not possessed with valid and effective driving licence. Hon’ble Supreme Court in the case of Shamanna and another v. Divisional Manager, Oriental Insurance Company Ltd. reported in 2018 (9) SCC 650 has considered the issue with regard to direction of pay and recover when the driver of the offending vehicle was not possessed with valid and effective driving licence and observed thus:

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“ 6. As per the decision in National Insurance Company Limited vs. Swaran Singh (supra), onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recover” can be ordered in case of third party risks. The Tribunal is required to consider “as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver... does not fulfill the requirements of law or not will have to be determined in each case”

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Considering the aforementioned decision of Hon’ble Supreme Court in the case of Shamanna (supra) and further the undisputed fact that the offending vehicle was insured with appellant-Insurance Company, I do not find any error in issuance of direction to first satisfy the impugned award and thereafter to recover the same from the owner of the offending motorcycle.

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For the foregoing discussion, there is not merit in appeal MAC No. 190 of 2019, filed by appellant-insurance company, which is liable to be and is hereby dismissed .

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So far as the ground raised by learned counsel for appellant-claimant in MAC No. 84 of 2019 that the Claims Tribunal fell into error in not considering the disability certificate is concerned, perusal of record would show that the claimant though has filed some papers with regard to his treatment at Yashwant Hospital, Raipur, however, he has not submitted and proved the discharge summary of the said hospital so as to ascertain nature of injury as also its status on the date of discharge. The accident is dated 01.01.2016, claim case was filed before the Claims Tribunal on 18.07.2016, however, the disability certificate is dated 04.09.2017, much after filing of claim case. Claimant was examined as AW-1 before the Claims Tribunal, in his evidence he stated that after the accident he was not able to do any work. He also stated that he took treatment from Dr. A.A. Saify. In para-5 of his crossexamination though he stated that after treatment at Yashwant Hospital, Raipur, he fully recovered, however, he himself stated that he is facing difficulty in movement and discharge of his work. Claims Tribunal has considered one line of cross examination that after discharge from the hospital, he recovered fully and not other part of his evidence. Tribunal has also taken note that he has not taken treatment from Saify Hospital, however, document as enclosed as Ext. 119 to 121 would show medical prescriptions of Dr. A.A. Saify dated 26.12.2016, 29.03.2017, 22.08.2017.

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In the aforementioned facts of the case, in the opinion of this Court, Claims Tribunal erred in disbelieving the disability certificate issued by the doctor who is a Orthopedic surgeon and retired Asst. Surgeon of Medical College, Raipur, C.G.

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Now, I will consider as to what will be the effect of disability suffered by the claimant/ appellant on his earnings. Dr. A.A. Saify is examined as AW-3, in his evidence he stated that the disability certificate is issued not for the whole body but for the disability on left leg only. Perusal of record would further show that the notice was issued to doctor of Yashwant Hospital, however, in one of the notesheet it is mentioned that Dr. Jaywardhan Singh was out of India.

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From the aforementioned facts, it is apparent that the claimant had made an attempt to examine the doctor from whom he got treatment, however, the said doctor could not be made available to prove the nature of injury and the treatment at Yashwant Hospital. But from the documents exhibited of treatment and evidence of Dr.A.A. Saify, it is proved that the claimant suffered Compound Fracture over his left leg.

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In the aforementioned facts of the case and also considering that the documents enclosed along with record is also showing that Dr. A.A. Saify has also issued medical prescription of treatment before issuing disability certificate, I am of the view that Disability Certificate cannot be overlooked. The percentage of disability may not affect in same proportion towards loss of earning capacity but it may defer because of nature of work which the claimant/ injured was doing prior to the date of accident.

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In the case at hand, claimant has not produced any admissible piece of evidence with regard to his employment with M/s Ramesh Steel Plant as Mechanic fitter and also doing the work of Carpenter. There is no evidence to suggest that with the said disability the claimant may not be able to discharge the work of fitter and no question has been put in this regard to doctor, AW-3.

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In the aforementioned facts of the case and in absence of prove of nature of work and further the specific evidence that the disability will affect nature of work appellant doing, I find it appropriate to award compensation under the

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head of grievous injury looking to the nature of injury suffered by the appellant-claimant as is reflecting from the copy of discharge summary available on record of the Yashwant Hospital of ₹ 40,000/-. It is ordered accordingly.

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Claims Tribunal has awarded ₹ 30,000/- towards pain and suffering, ₹ 5,000/towards conveyance expenses, ₹ 10,000/- towards special diet and ₹ 20,000/- towards loss of earning during treatment period. The loss of income as assessed by the Claims Tribunal for a period of 04 months assessing the income of appellant as ₹ 5,000/- per month, as there was no proof of occupation and income of appellant. Claims Tribunal justified in taking recourse to assess the income of appellant-claimant on notional basis, however, Tribunal fell into error in not considering factors like date of accident, age of appellant, price index, cost of living, wage structure prevailing to assess notional income of claimant. Appellant-claimant is a resident of Raipur city and therefore in absence of any prove of wage rate prevailing in Raipur city, I find it appropriate to assess the income of appellant taking note of minimum wages fixed by the competent authority under the Minimum Wages Act and prevailing on the date of accident. For assessing the income of injured/ deceased some guess work is required to be done. Considering the age of claimant as also place of resident and work ie., Raipur, capital and industrial city of Chhattisgarh, I find it appropriate to assess income of the appellant as ₹ 6,500/- per month. It is ordered accordingly.

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Now the appellant-claimant will be entitled for loss of income for a period of 04 months as ₹ 26,000 (₹ 6500X4). The total amount of compensation for which the appellant/ claimant-Bhukhan Lal Vishwakarma is entitled will be ₹ 2,56,000 /- [₹ 1,45,000 (medical treatment expenses)+ ₹ 30,000 (pain and suffering) +₹ 5,000 (conveyance expenses)+ ₹ 10,000 (special diet)+ ₹

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26,000 (loss of earning for 04 months) +₹ 40,000 (grievous injuries)] instead of ₹ 2,09,000/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry simple interest @ 7.5% p.a. from the date of filing of claim application till its realization. Any amount paid to the appellant-claimant pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Other conditions of the impugned award shall remain intact.

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In the result, appeal filed by the appellant-Insurance Company is dismissed and the appeal filed by appellant-claimant is allowed in part and the impugned award is modified to the extent as indicated herein-above.

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Sd/(Parth Prateem Sahu) Judge

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pwn

Bhukhan Lal Vishwakarma v. Hulas Sahu

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Bhukhan Lal Vishwakarma v. Hulas Sahu

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