Icici Lumbard General Insurance Company Limited, Vs Suresh Jaiswal

ICICI Lumbard General Insurance Company Limited, Through Its Legal Manager, Vanijya Bhawan, Ground Floor, Devendra Nagar, Raipur Chhattisgarh........... Insurer

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--- Appellant/ Non-applicant No. 2

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versus

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Suresh Jaiswal, S/o Dular Jaiswal, Aged About 25 Years R/o Village Ghughri, P.S. And Tahsil Dabhra, District Janjgir Champa Chhattisgarh........... Claimant

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Vijay Kumar Sidar S/o Ghasiya Ram Sidar, Aged About 35 Years R/o Village Tilgi, P.S. And Tahsil Pussour, District Raigarh Chhattisgarh............. Owner - Driver of Vehicle No. CG13UF5990

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Kamlesh Kumar S/o Dular Jaiswal, Aged About 29 Years R/o Village Ghughri, P.S. And Tahsil Dabhra, District Janjgir Champa Chhattisgarh............... Owner of Vehicle No. CG11AC2512

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Branch Manager, Iffco Tokio General Insurance Company, Branch Office Raigarh, Gourishankar Mandir Road, Raigarh Chhattisgarh.

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--- Respondents/ Non-applicants

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MAC No. 242 of 2020

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Suresh Jaiswal S/o Dular Jaiswal Aged About 26 Years R/o Village Ghughri, Police Station And Tahsil Dabhra, District - Janjgir - Champa Chhattisgarh.

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--- Appellant/ Claimant

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versus

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Vijay Kumar Sidar S/o Ghasiya Ram Sidar, Aged About 35 Years R/o Village Tilgi, Police Station And Tahsil Pusour, District - Raigarh Chhattisgarh. (Non Applicant No. 1)

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Kamlesh Kumar S/o Dular Jaiswal Vehicle Owner, R/o Ghughri Police Station And Tahsil Dabhra, District Jangir- Champa Chhattisgarh Taluka Dabhra, District Jangir Champa Chhattisarh.

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Branch Manager Efko Tokiyo General Insurance Company Branch Office Raigarh Gaurishankar Mandir Road Raigarh Chhattisgarh Taluka Raigarh, District Raigarh Chhattisgarh.

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Branch Manager I.C.I.C.I Lombard Insurance Company Brance Office Raipur, District Raipur Chhattisgarh.

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---Respondents/ Non-applicants

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In MAC No. 1929 of 2019

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For Appellant : Mr. Sourabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate For Respondent No. 1 : Mr. Pradeep Kumar Jogi, Advocate For Respondent No. 2 : Mr. Ravi Kumar Banjare, Advocate on behalf of Mr. Manoj Kumar Jaiswal, Advocate For Respondent No. 4 : Ms. Shrejal Gupta, Advocate on behalf of Mr. Vaibhav Shukla, Advocate

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In MAC No. 242 of 2020

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For Appellant : Mr. Pradeep Kumar Jogi, Advocate

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For Respondent No. 1 : Mr. Ravi Kumar Banjare, Advocate on behalf of Mr. Manoj Kumar Jaiswal, Advocate For Respondent No. 3 : Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patankar, Advocate For Respondent No. 4 : Mr. Sourabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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C.A.V. Order

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As both these appeals are being filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the legality and sustainability of the impugned award dated 15.03.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Raigarh, District Raigarh, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 85/2017, they are heard together and decided by this common order.

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In claim case No. 85/2017, Claims Tribunal had allowed the application filed by Suresh Jaiswal (appellant in MAC No. 242/2020) in part and awarded total sum of Rs. 7,70,200 as compensation, fastening liability upon non-applicant No. 2-Insurance Company (appellant in MAC No. 1971/2019).

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Brief facts of the case for disposal of these appeals are that on 18.10.2015 at about 10:00 am, Suresh Jaiswal/ claimant was travelling on his motorcycle

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from village Ghughri to Baramkela on motorcycle bearing No. CG11AC2512. On the way, another motorcycle bearing No. CG13UF5990 (hereinafter referred to as “offending motorcycle”) dashed the motorcycle of claimant. In the said accident, claimant Suresh Jaiswal suffered grievous injuries over his person. He was taken to hospital at Baramkela from where he was referred to Jindal hospital, Raigarh and had also taken treatment at Ramkrishna Hospital, Raipur. He suffered grievous injuries over his hand and later on suffered permanent disability. Claimant thereafter filed an application under Section 166 of the Act of 1988 seeking compensation of Rs. 50,40,000 in total against non-applicants therein, ie., driver of offending motorcycle, insurer of offending motorcycle and owner and insurer of motorcycle driven by claimant. In the claim application, it was pleaded that claimant on the date of accident was working as agricultural labourer and earning Rs. 15,000 per month.

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Non-applicant No. 1/ owner-cum-driver of the offending motorcycle submitted reply denying the facts pleaded therein. It was also pleaded that the accident was a result of self negligence on the part of claimant. Offending motorcycle was insured with non-applicant No. 2.

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Non-applicant No. 2-Insurer submitted its separate reply and has denied the pleadings with regard to the employment and earnings of claimant. Injuries stated to have been suffered by claimant is also denied. Accident was a result of self-negligence and that at the time of accident offending motorcycle was being driven in breach of policy conditions as the driver of offending motorcycle was not possessed with valid and effective driving licence.

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Non-applicant No. 3/ owner of vehicle driven by claimant has also denied the facts pleaded therein and further pleaded that the accident was a result of self-negligence on the part of claimant.

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Non-applicant No. 4/ Insurer of motorcycle driven by claimant has also submitted reply denying the facts pleaded therein. It is pleaded that the

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compensation sought for is highly exaggerated, accident was a result of selfnegligence on the part of claimant and that claimant himself was driver of the vehicle insured by it.

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Learned Claims Tribunal based on the pleadings made has formulated as many as five issues for consideration and upon conclusion of trial of claim case had allowed the claim application in part, recorded a finding that the appellant suffered 40% permanent disability on his hand and after computing compensation on different heads had awarded sum of Rs. 7,70,200.

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Learned counsel for appellant-Insurance Company would submit that the Claims Tribunal erred in fastening liability upon it. The said finding recorded by the Claims Tribunal is perverse to the evidence available on record. The amount of compensation awarded is highly exaggerated. It is also contended that accident was not reported to the concerned police station and further that the accident occurred due to rash and negligent act of claimant and therefore the liability fastened upon appellant-insurance company is erroneous. He also contended that there was head-on-collision between two motorcycles and therefore there is contributory negligence on the part of claimant to the extent of 50% but the Claims Tribunal failed to consider this aspect that the accident is on account of self-negligence on the part of claimant.

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Claimant/ appellant in MAC No. 242/2020 would submit that the Claims Tribunal has rightly come to conclusion that the offending motorcycle insured by non-applicant No. 2 was involved in accident and upon appreciation of evidence has rightly awarded the compensation to claimant. He however would submit that less amount of compensation is awarded. It is contended that the Claims Tribunal has not awarded compensation towards loss of future prospects in the facts of the case where claimant suffered permanent disability as held by Hon’ble Supreme Court in case of National Insurance

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Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680. The doctor who examined the claimant has issued certificate to the extent of 40% permanent disability and therefore the Claims Tribunal ought to have awarded compensation towards loss of future prospects also. The compensation awarded on other heads is also on lower side.

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

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Perusal of impugned award would show that the Claims Tribunal has given a finding that on the date of accident driver of both the vehicles drove the motorcycle without precaution and have negligently caused accident. Upon perusal of the issues framed would show that the Claims Tribunal has not formulated any issue with regard to whether there was contributory negligence. The issue with regard to contributory negligence in the facts of the case was necessary when drivers of both motorcycles have filed separate claim applications, one from which these appeals are arising in claim case No. 85/2017 and another claim application bearing claim case No. 21/2017. In both the claim cases, issue has been framed whether nonapplicant No. 1 on the date of accident drove the motorcycle rashly and negligently and in both the cases this issue has been decided in affirmative. Non framing of issue towards negligence in the facts of the case, in the opinion of this Court, appears to be fatal.

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Claims Tribunal on deciding the issue with regard to 40% permanent disability has considered the evidence of doctor, AW-2, who issued permanent disability certificate Ext. P-13, had concluded that claimants suffered 40% permanent disability and computed compensation accordingly but had not awarded compensation towards future prospects. Loss of future prospects in case of permanent disability has been considered by Hon’ble Supreme Court in Chandramani Nanda vs. Sarat Chandra Swain & Anr.

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reported in 2024 SCC OnLine SC 2859 wherein the Court has held that the claimant who suffered permanent disability is also entitled for the loss of future prospects and held thus:-

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“ 14.3 However, the Tribunal and the High Court both have failed to consider the fact that the appellant is also entitled for enhancement on account of future prospects. Hence, in line with the law laid down in National Insurance Company Limited v. Pranay Sethi , given the age of appellant was 32 years at the time of accident, he is entitled to 40% future prospects.”

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In view of the aforementioned decision of the Hon’ble Supreme Court the injured/claimant who suffered permanent disability, is entitle for addition of loss of future prospects based on the age of the deceased as held by the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680 . For adding compensation towards future prospects Hon’ble Supreme Court has held that where the claimant or deceased was less than 40 years and not in permanent employment, 40% of the assessed income is to be added towards loss of future prospects but the Claims Tribunal erred in not adding any compensation towards loss of future prospects. Claims Tribunal has also erred in assessing income of claimant as Rs. 4,500 per month in the facts of the case on lower side.

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As Claims Tribunal has not formulated issue with regard to contributory negligence in the facts of the case, I am of the considered view that the impugned award passed by the Claims Tribunal is not sustainable and accordingly the award passed in claim case No. 85/2017 dated 15.03.2019 is not sustainable and it is hereby set aside. The matter is remitted back to the concerned Claims Tribunal for deciding the claim case No. 85/2017 afresh after framing additional issue of contributory negligence. It goes without saying that as the additional issue is to be framed, the parties will be at liberty to lead further evidence.

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Parties are directed to appear before the Claims Tribunal on 18.08.2026 .

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Consequently, MAC No. 1929/2019 is allowed in part.

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In view of decision made in MAC No. 1929/2019, MAC No. 242/2020 filed by claimant seeking enhancement of amount of compensation is not required any consideration on merits, accordingly it is also disposed of in light of decision in MAC No. 1929/2019.

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Sd/-

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(Parth Prateem Sahu) Judge

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pwn

Icici Lumbard General Insurance Company Limited, v. Suresh Jaiswal

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Icici Lumbard General Insurance Company Limited, v. Suresh Jaiswal

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