IN THE HON'BLE HIGH CO>if^T OF CHHATTISGARH AT BILASPUR Misc. ADpeal W No. \ ?i M /20ldLt AP^ELLANT 7^ ^ajaj Allianz Greneral Insurance Company Limited, Through Branch Manager, Shiv Mohan Bhavan, Vidhan Sabha Marg, Pandri, Raipujr Tahsil & Distt. Raipur (C.G.) (Insurance Company)^ Versus iSPONDENTS . ^..^^ l^Smt. Saxitara Bai aged about 40 years, w/o Shri Basant Ram, R/o Village-Padania, Tahsil Katghora, District Korba (C.G.) (Claimaht) Anwar Khan S/o Allauddin Khan, R/o Purani Basti Korb^, T^hsil & District Korba (C.G.) (Owner of Mini Bus No. C*G 12-ZA/0117) Lakhan Lal Sahu, s/o Panchu Ram Sahu aged about 24 years R/o Mudapar Korba, Police Chowki Manikpur, Tabsil & District - Korba (C.G.) (Driver of Mini Bus No. C.G 12-ZA/OI17) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1968 ^ HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.C. No. 134/2011 APPELLANT Bajaj Allianz Company Limited Insurance Versus RESPONDENTS Smt. Santara Bai and others ^y. ? SB:- HON'BLE SHRI N.K. AGARWAL, J PRESBNT:- Shri Sachin Singh Rajput, Advocate, for the appellant. Shri Advocate for the respondent. ORAL ORDER (3-2-2011) 1. Heard on application for condonation of delay in filing the appeal. 2. On due consideration, I am satisfigd that the appellant has succeeded in explaining the cause of delay in filing the appeal. Therefore, the application is allowed and the delay is condoned. 3. This is insurer's appeal against the award dated 26-7- 2010 passed by the Addl. Motor Accident Claims Tribunal, Korba in Claim Case No. 28/2009 awarding Rs. 2,98,760/- as compensation in favour ofthe claimant and as against appellant/Insurance Company along with interest at the rate of 6% per annum from the date of application till its payment. 4. Facts of the case in brief are that on 27-7-2007, when claimant Santara Bai was going to her village Padaniya on an auto vehicle, a minibus bearing registratiori no. CG 12/ZA-0117 being driven by its driver in a rash and negligent manner dashed the auto vehicle, as a result of which she sustained irijuries on her arm, wrist and on other parts of body. She filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. L^pniiiiNUiiMMiljr 7. 8. 10,55,OOO/- as compensation for the injuries sustained in the accident. Learned Tribunal having found the claimant permanently disabled to the extei^t of 51%, income of the claimant as Rs. 36,000/- per annum and as he was of the age of 35 to 40 years at the time of accident, applied multiplier of 16, and awarded Rs. 2,93,760/- as compensation for loss of earning capacity. Learned Tribunal further awarded Rs. 5,000/- on other heads and thus awarded total amount of Rs. 2,98,760/- as compensation for the injuries sustained by the claimant. Shri Rajput, learned counsel for the appellant would submit, learned Tribunal has erred in assessing the loss of earning capacity of the claimant to the extent of 51% masmuch as the claimant has not sustained 51% permanent disability of the whole body but had sustained 51% permanent disability to her left hand only. For this, he placed reliance upon the decision of Hon?ble Supreme Court in the case of Raj Kumar -v- Ajay Kumar and another reported in 2010 SCCL. COM. 830. I have heard leamed counsel for the appellant and perused the award impugned. The Supreme Court in the case Raj Kumar (supra) cited by Shri Rajput has observed in para 10 of its judgment as under:- "10. Ascertainment of the effect of the permanent disability on the actual eaming 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 relevantfor awarding compensc^tion under the head of loss of amenities' of life). The second step is to ascertain his avocation, profession and nature of work before the .^^ i' ^.. 1-i 1 i accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from eaming 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 eam his Iwelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss ofeaming capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in govemment service, the loss of his left hcmM may not result in loss of employment and he may still be continued as a clerk as he couldperform his clerical functions; and in that event the loss of eaming capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, butfarless. In fact, there may not be any need to award any compensation under the head of 'loss of future eamings', if the claimant continues in govemment service, though he may be awarded compensation under the head ofloss ofamenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties dttached to the post or job which he was earlier holding^ on account ofhis disability, and may therefore, be shifted to some other suitable but lesser post with lesser emoluments, in which case th^re should be a Umited award' under the head of loss of future earning capacity, taking note ofthe reduced eaming capacity. ^r^?c Li It may be noted that when compensation is awarded by treating the loss of future eaming capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of amenities or loss of expectation .of life, as othenuise there may be a duplication in the award of compensation. Be that as it may." 9. In view of the dictum of above referred judgment of ' Supreme Court, it is clear that loss of earning capacity depends on the nature ofjob. The claimant is a labourer. Her left hand is permanently disabled to the extent of 51%. Looking to the nature of her job and the fact that a laLbourer cannot do her/his work without help of both of her/his hands, it cannot be said thafelearned Tribunal has erred in assessing the loss of earning capacity of the claimant to the extent of 51%. 10. In view of above, I do not find any scope of interference in the award impugned. The appeal being devoid of substance, deserves to be and is hereby dismissed. Sd/- N.K. Agrawal Judge 91