J.^f^'-2- ^s-^ '^^•t"'" IN THE HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH MISC. APPEALlMO.^S3 OF 2006 APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 APPEAL VALUED AT RS. 3.28.000/- (RUPEES THREE LACS TWENTYEIGHTTHOUSAND ONLY Appellant Non-Applicant No. 3 i Respondent No. 1 Applicant Respondent No. 2 Non-Applicant No. 1 Respondent No. 3 Non-Applicant No. 2 Nationallnsurance Co. Ltd. Divisional Manager, Divisional Office, Mobin Mahal, GE Road, Raipur (Chhaftisgarh) through its Acting Divisional Manager, Bilaspur Branch, Taha Complex, Vyapar Vihar Road,Bilaspur Versus ?—Raju Sahu, aged about, 38 years, S/o Shri Daulal Sahu, R/o Near Satbahania Temple,, Jorapara, Raipur (CG) L. Krishna reddy, agedabout 38 years, S/o Shri Veera Reddy, R/o Malkapet, P.S. Malkapet, Distt. Hyderabad (Andhra Pradesh) (Driver of Truck No. AP 28 T/7261) Smt. Rama Reddy, C/o V. Rajendra Reddy, R/o Plot No. 38, Highway Colony, Chintalkutta, Saror Nagar (Andhra Pradesh) (Registered owner of Truck No. AP28T/7261) COVKT OF CHHATTIS^ARH AT DIVISION BENCH: HON'BLE MR. I. M. QUDDUSI & MR. PRASH.4NT XUM^R MISHRA. JJ. XpDellant (Nontaappllcant No.3) BssDondents (Applicant d Non- appjicants No.l <& 2) M.A. fcT No.553/2006 National Insurance Co< Ltd< Vs Raju Sahu&oThers Present: Mr. bashrath ^upta, Advocate for the oippejfant. Mr. R. Pradhon, Advocate for the respondent No.l. ORDERrOraS) (11th Apnl, 2011) I.M. Quddusi. J; I, By way of this appeal under Section l73 of the Motor Veh icles Act/1988 (for short 'the Acf), the appellant-Insurance Company has impugned the award dated 12.07.2006 by the learnsd 12th .Add.itionai Motor Accident Claims Tribunal, FTC, Raipur (CS) (for short ithe Claims Tribunal') in Cfaim Case No<82/2006 aJlowing claim ^ppiication of the injured claimant, awarding compensGtion of Rs3,28,000/°- and' fastemng Iiability on the appellant herein to pay compensation, 2. Facts of the case, in brief, are -ttiat on 01.10.2003 in the nightatabout 11.30 p.m. a truck bearing registration number AP28-T-7281, which was being driven in rash and negJigent moinner by its driyer, dGShed the truck bearing registration number C&04-ZC-0956 in which claimant sustained grievous bodlly injuries resuiting in his permanent disablement. Matter was reported in the Police Station Mana Camp on wh ich Crime NoJ08/03 was registered and afterinvestigation, charge sheet was filed in the Court of tiie ieGrned Judidaj Magistrate 1st Class, The ciaimant hos filed a daim aDplication before the Ciaims T^ibunal ^eking compensation to the tune of Rs.9,50,000/- for the permanent disablement sustained by hjmin 1+ie aaid accident, - ^ :'"'v' 3. On th@ pieadings of 'the partses, the. Claimg. .Tribunai ha^ framed'- as many QS eight-issues and afrer hearing the parties and consideri.ng -material avaitabie on .record allowed the- claim QODijcQtion of the .cbimGnt, awarded a compensation of'Rs.3,28,000/- and.fastened liQbiiity'on the QppellQnt herein to pay compensation. /. 4. We have 'heard jsarned counse! for the parties and perused the records'of, the CJdnis Tribuna! as al.so the fin.djnqs given inthe impucsncd wjlard. ^ ^^- ^^^-^^^--^^ -^—-^^.-—--^-^-.. ^- ^ ^^-.--.^ ^ ^ ). In the matter of Rajkumar Vs. 'Ajay Kuinar A reported in 2010' where'm in Para-ll the Mon'bte Apex-Court has he!d as ynder^ .'11. The Tribunal s.hoyid 'nof be a.siient spectator'i^hen medicoJ CTidence is tendered'in regard to the.jnjurics and ther'effect, in particubr+he.extent of permanent dbabiiityJ Sections 168 <ind 169.o.f"the Act make It.evident.thattheTribunQ.ldoeg.not. funcTion'as a neutrQj'.unnpJre os in a civilsult, but as'an active expforer and seeker.of truth who Is required'to 'hoid' an.enquiry Jnto the cbim' for detersii.ining the ^iust. corTipensatiorf.. Th©. TribunaS snou!d therefor'e.take an Qctive roie to oscertdn th@ true an'd .correct position. ^o that it c.an. assess the 'Just cgmpensOTion. White dealing ^jth. personal injury cases, the ' TrlbunaJ should preferabiy equ.lp itself ^ith ajM.edicaI bictlonary and a HQrid.book for evQlUQtJon of'permanent physical imp.airment (for example the ManuQifor..EvQluation of •Permanent •.PhysicQi Im pairment fcr Orthopsdic Surgeons,' prepared by Anierican Acaderrsy of Orthopedjc Suraeons ar jts.,Indian equivalent or Qther'authorlzed texts) for..understanding.the m.^dica! evidence and assessing the physica! and^functionQl d.isabiiity. The Tribuna! may also keep.in view/ the first scheduie :to the Workmen's .CoTnpensOTJon Act/'1.923 t^hich gives some indicQtiQn about the extent of permanent disability. in' di.fferent types of jnjuries/in the case. of.^orkmen. If a Doct.ar giving' evidence uses technical medlcai. term^ the TT'lbund' ^hould mCTruCT him to CTOT€ in add'itjon, rn simDte non-nied.icai terrns, the nature. ancl- the effect of th.e JnjUry. -If a doetor givcs ^vidence ab:out the percCTtage ;of permanent disabiiity/the Tribunai'ha^ to ciarificdtionQs to ., ^hether such- percentQge of disabiiityj is. the tunctianai di:sabjiity with r^fercnce to thewhob body or whKth©r;itis only wi^h reference to Q ' Simb.. :If .the percentage of pernianent disab.iiity is stat.ed p/ith reference to a |jm..b, the. Tribunai ^ii! 'have to seek the doctor's opinion as to'^hether it is possibie to deduce the correspondmg functionG! permanent.,dj^abi!ity^ith .reference to th@ sA/hoie b.ody and if'so the pcrcentaQe,"3 6. It is dso settled position of law that incapacity to earn is to be d'etermined i¥ith reference to. .work w'hic'h the injured WQC doinQ at fhe'time' pf'accident. .1- p- •< Where the cbimant suffers a permanent disabiiity as a result of injuries, 1+ie assessment of compensation under tiie head of loss of future eaminas.would depend upon the effect and impact of such permanent di^bility on his earning capadty^ In most of the cases, the Dercentcxge of economic ioss, that is, percentage of ioss of earnjnq capacity, arising from apermanent d'isabilit^ wiil be different from the percentage of permanent disability. Suppose, the in.jured was a driyer aaed 30 years, earnlng fts<3,000/aB per mon+h. His hand is amputated and his permanent disability'is assessed at 60%. He was terminated from hisjob as he could no bnger drive. HJS chances of getting any other employment were bleak and even if he got any job, the salary was likely to bea pittance.In 'riisssituatjon his bss of future earnina capacstyf wlil be more than the permanent diSQbilit^ sustained by him. 7. In the case on hand, it is evident from perusal of the first informQtion report that ifie ciaimant was workina as helper m the truck bearing registration number C^04-ZC-0956 and thus even if we presume that the claimant has sustQined 50% permanent disabjlit^ then also it cannot be said that ioss of earning capacitv suffered by the jnjured-claimant is 50% as even after occident he can workds hefper. Tlius, looking to the condition of the iniured-claimant, we are of the opinion that loss of earning capacjt^ with reference to the disability sustained by the cJGimant is 25% Qnd not 50% as held by the Ciaims Tribunal, 8. Therefore, if wq take monthly income of respondent No.l as Rs*3X]00/»,as assessed by the Claims Tribunal and apply multipiier of 15 to it, as ttie claimGnt was 38 years of age at the time of incident and as per judgmentof Ssrte ^e/ma (Smf.) ond ofhers -vs- Qslhi Tmifsporf' CQrDor'Qtion and onothsr reported in f^W^ 6 SC€ 121 multiplier of 15 js applicabte to the injured ctaimant/decea^d who are between the age qroup of 36 to 40 years, the total of Idss of income wouid come to Rs.5,40,000/- (3000x12x15). As we have aiready held that loss of eaming capadty sustained by the claimant is to the extent of 25% only, therefore, the net compensation awardable to fhe respondent No.l-cJaimGnt witl be fts.1,35,000/- i.e. 25% of 5,40,000-/. Besides 1tiis, the respondent No.l-daimant is also entitled to get Rs.10,000/- toward^ pain & suffering/Rs.5,000/- for future treatmentand Rs,5000/«for ^ 3? attendant. Thus, the total amount of compensation for which the claimant would be entitled for is Rs.1,55,000/-. He wili also be entitled for simple interest @ 6% p.a. from the date of filing of cJQim application tifi the actual payment is made to him< 9. So far as question of contributory negligence is concerned/ Qfter going through the evsdence ayailable on record, we are of the opinjon that the Cfaims Tribunal has not committed any iliegalityor impropriety in reaching to -^ , . ' . ' . • . • . .'• the conclusion that there was no contributory negligence, 10.In the result, the appeal isaJlowed in part, the impugned award is modified to the extent that ttie respondent No.l-cJaimant shall be entitled for a compensation of RsJ,55,000/-/along with simple interest @ 6%per annum, in place of Rs.3,28,000/", as awarded by 1tie CIaJmsTribunal< ll/At this stage, iearned counsel for theappeJlQntsubmitsthatasperdirection of the Cbjms Thbunal RsJ,00,000/- has already been paid to the claimant and2 baiance amount jnvolved in the jmpugned award has been deposited in the fixed deposit scheme of a nationaiized bank foraperiodof five years, ^ l2<In view of above, it is directed thaf the appellanT-Insurance Company shall be allowecl to wjthdraw The amount deposited by it in a fixed deposit scheme in such a proportion that Rs,55,OOOA shall remain in fixed deposit till the completion of fiye years and rest of the amount along with interest shall be paid to the ctaimantin cash, In other words, the respondentNoJ-claimantJs entitled to an award of Rs.1,55,000/-, out of which Rs.1,00,000/- along with interest shall be paid in cash and balance amount of Rs,55,000/- shall be kept in the fsxed deposit scheme of a nationGlized bank. Any amount already paid by 1tie appeiiant-Insurance ComDany to the injured ctaimGnt shaJI be adjusted^ IS^Certified copy as per mles* ^ Roshan/- Sd/- I.M. Quddusi Judge Sd//- Prashant Kumar Mishra Judge