^ 91^ IN THE HON'BLE HI6H COURT OF CHHATTISGARH AT BILASPUR VSJSF^N Appellants ^^SV-J^-A <a^-~t\~Xi^<~ ^ o-S^Al <^-^. MISC APPEAL fC) N0. 3-57 OF 2011 1. AjayPatle, S/o A. Patle, aged about 30 years :<<s' V>Jto ^^- 2. Mahendra Kumar S/o Tikaitram Patte, aged 32 years IH'.L............ nt«j&yShii^hsteftlM.^Both R/o Village Beltukri, P.S. <& -..——..............T-.....^._^ahsilBaloda, Distt. JanjgFr- 0^\-^-1 ! Champa(CS) Versus E^-g' ". ^s: s-^' Respondents '^"»..t»>'" '^A^C-BS^. r V^IS^-s—aJS^I^ACjl^X.v^Oi-^ '> ^ 1. Kamal Rathore, S/o Sri Siyaram Rathore, aged about 28 years, R/o Village Khisora, P.S. Baloda, Distt. Janjgir-Champa (C6) 2. ICICI Lombard Seneral ^ Insurance Company Ltd., Bilaspur, bistt. Bilaspur (C6) MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLESACT. 1988 ^i£^--3 -^ ^ if^~" I f'K ^sse.^ 1 HIGiI C^URT QF CHHATTISGARH : BILASPUR M^A. 10 No. 237^of 2m 1 Appellants Ajay Patle 8s another Versus Respondents Kamal Rathore & another APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi 8s Hon'ble Shri G. Minhajuddin, JJ f Ms Sharmila Singhai, Advocate with Shri Sanjay Agarwal, Advocate for the appellants. Shri Pushpendra Patel, Advocate for the respondent No.l. Shri Amrito Das, Advocate with Miss Tanushree Das, Advocate for the respondent No.2. ORDER (Orall ( Passed on this 20th day of October, 2011 ) Per I. M. Quddusi, J. This appeal has been filed by the appellants (driver and owner) against the impugned award dated 12.11.2010, passed by the Principal Motor Accident Claims Tribunal, Janjgir Chainpa, in Claim Case No. 15/2010, dismissing the claim petition. We have heard learned counsel appearing for the parties and perused the lower Court record as well as the findings given in the impugned award. Brief facts, in nutshell, are that on 8.11.2009 injured/claimant Kamal Rathore along with his friends was going on Bolero Jeep, bearing registration No. C.G. ll-BB/1472. On the way near village - Kenvchi, Police Station - Gourela, District - Bilaspur, due to rash and negligent driving of the non-applicant No. 1 the vehicle fell into a valley. In that accident Kanial Rathore received grievoAs injuries and got permanent disability. The claimant/injured filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 18,50,OOO/- under various heads. "^. 'sSs—.A ''3^ 'ss.^"^ 7. Learned Claiins Tribunal, having regard to the facts situation and the evidence on record awarded a total sum of Rs. 4,23,080/- along with interest at the rate of 6% per annum from the date of the application i.e. 11.2.2010, holding the appellants/driver and owner as liable to pay the amount of compensation, finding that the vehicle was being plied in breach of the conditions of the insurance policy. On perusal of the record it is evident that 'the treating doctor had given the certificate of 50% permanent disability of the injured/claimant and further verified the certificate issued by the medical board in this regard. However; it is not known up to what extent the claimant/injured got the permanent disability and due to that whether there is loss of functional disability, resulting in loss of earning capacity and up to what extent. Permanent disability has been defined in Section 142 which reads as under: "142. Pennanent disablement. - For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident ofthe natu.re referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving :- (a) permanent privation of the sight of either eye or the hearing ofeither ear, orprivation ofany member orjoint; or (b) destruction or pennanent im.paring of the powers of any member orjoint; or (c) permanent disfiguration of the head orface." 8. Explanadon to sub Section (1) of Section 163 A of the Motor Vehicles Act express that for the purpose of that sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen Compensation Act, 1923. In Second Schedule of Section 163-A at clause 5, the description-.of 'disability in non-fatal accidents has been given and after sub-clause (b), it has been mentioned that "Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablernent and percentage of loss of earning capacity shall be as per Schedule-I under Workmens Compensation Act, 1923". 9. In the case ofPratap Narain Singh Deo vs. Shrinivas Sabata and another reported in AIR 1976 SC 222 four Judges of Hon'ble Apex Court have held in paragraph 5 thus as under :- "5. The expression "total disablement" has been defined in Section 2(1)(1) ofthe Act asfollows:- "(lj "total disablement" means such disablement, whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement. " It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded hisfinding asfollows:- "The injured workm.an in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding. Counselfor the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is ateo no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4y2° below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. ° 10. In the case of National Insurance Co. Ltd. Vs. Mubasir Ahined and another reported in (2007) 2 SCC 349 the Hon'ble Apex Court has held in para 8 as under :- "Z-oss of eaming capacity is, therefore, not a substitute for . percentage of the physical disablement. It is one of the factors taken into account. In the' instant case the doctor who / -!lttV~-^ /"'-< examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of eaming capacity. Without indicating any reason or basis the High Court held that there was 100% loss of eaming capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside'that part of the High Court's order and restore that of the Commissioner, in view. of the fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with 'that question. The provision has been quoted above." 11. Therefore, permanent disability has direct link with the functional capacity of the injured. In the instant case, the Tribunal has not assessed the functional disability of the injured on the basis of the . physical disability. The Tribunal has also not assessed the future loss of earning of the claimant due to actual permanent disability. In such circumstances, the Tribunal should have conducted proper enquiry as laid down in Rule 226 of the C.G. Motor Vehicles Rules, 1994 and Section 168 ofthe Motor Vehicles Act, 1988. 12. It has been provided in Rule 226 of C.G. Motor Vehicles Rules, 1994 that the Claims Tribunal shall obtain whatever information and documents which may be found necessary from the police, medical and other authorities and proceed to award the claim whether the parties who were given notice, appear or not, on the appointed date. Further we cannot ignore the provisions of sectionl68 of the Motor Vehicles Act, 1988 which provides that on receipt of an application for compensation made u/s 166, the Claims Tribunal shall after givinj the parties (including the insurer) an opportunity of being heard, hold an inquiiy into the claim and subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just. However, the Tribunal has not conducted any enquiry in the manner indicated above. 13. Further in RaJ Kumar -vs- AJay Kumar and another decided on 18U1 October, 2010 and reported in IV (2010) Accident & C'ompensation Cases 815 (SC) Hon'ble the Apex Court laid down vide para 11 as under: 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the iniuries and their effect, in _pa,rticular the extent of permanent disabilitv. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an inauirv into the claim for determining the 'iust compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'iust compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal raay also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-raedical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctors opinion as to whether it is possible to de.duce the corresponding functional permanent disability with refer-ence to the whole body and if so the percentage. (Emphasis supplied) 14. In'view of the foregoing, the appeal is allowed in part, the impugned award dated 12.11.2010 is set aside and the matter is remitted back to the Tribunal for decision afresh in view of the observations made herein above. No order as to cost. 15. Needless to mention that the parties shall be allowed to amend the pleadings, adduce further evidence, file documents or get the docuraents verified etc., and thereafter decision shall be taken afresh. The Tribunal shall conduct an enquiry, which is necessary for adjudication of the extent of functional disablement and future loss of earning of the claimant injured having regard to the extent of the physical permanent disability. 16. It will be open for the parties to raise the question of quantum, if any. 17. The parties shall appear before the Claims Tribunal on 30th November, 2011. 18. The LCR shall be sent back without further delay. 19. Ifthe amount is deposited by the appellants, the same shall be kept in a Hxed deposit in a Nationalized Bank for a period of s\x months, .extendable from time to time. However, if the sum or any part of the sum has been paid to the claimant, the same shall not be recovered during the pendency of the claim petition and it will be subject to fresh decision by the Tribunal. ft^/_ ~~—-——- Sd/- G.Minhajuddin I.M.Quddusi Judge Judge Thaki.ir ,