IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR r Jr^ ri Misc. Appeal {C} No. ^ / ^ 12010 c^v AP1?ELLANT Ojvision BencA Bajaj Allianz General Insurance Company ^Bajaj Allianz (Jeneral insurance compa ^i^ ^ Limited, Through Branch Manager, Shiv .-^"^"' 0^'r Mohan Bhavan, Vidhan Sabha Marg, -^^<-9^/^ ^ Pandri, Raipur Tahsil & Distt. Raipur ^^•^A^ "^. \^^^ (C-G-^ (Insurance Company) ^^ ...^-^v t^"" Versus RESPONDENTS Deepak Kumar Nayak Age-23 years, S/o Jagdish Nayak, R/o Village and Post- Raikheda, District Raipur (C.G.)(Claimant) ^' Laxminarayan S/o Itwari Ram Nirmalkar, R/o Village & Post- Kharora, Thana-Kharora, District- Raipur (C.G.) (Driver of Mini Bus No. C.G 04- E/1076) 3 Smt. Charanjeet Kaur, W/o Surjeet ^"[ Bhatia R/o Village & Post- Kharora, k. Thana- Kharora, District - Raipur (C.G.) (Owner of Mini Bus No. C.G 04-E/1076) ^'- MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 ____.^1— ^^ W0H COURT OF CHMmse^RH AT BILASPUR OIVISION 8ENCH: HON'BLE MR. I.M.QU&DUSI A HON'BLE MR.NAWAL laSHORE ^ARWAt JJ. LA.fcl No.915/2010 Aooellant ResBondents Vs Bajaj Allianz ^eneral Insurance Company Deepak Kumar Nayak A 2 others Present; Mr. Sachin Singh ftajput, Adyocote for the appetlant. Mr. S. Pancfya, Advocote for respondent No.2 A 3. ORDEft fOroft (28th Nowinter, 2010) I.M Quddusi. J; 1. Heard. 2. The appellant-insurance company hos filed this misceljaneous appeal under Sed-ion 173 of the Motor Vehjcles Ad", 1988 against the impugned award dated 12.04.2010 passed by the learned 7rtl Additiond Motor Acciclent CIaims Tnbunal, Raipur (C6') (for brevity ^the trjbunaf) jn Claim Case No.92/2008 thereby awardmg compensatjon to the tune of Rs.3,71,000/- alon9 with interest @ 6% to the clajmant/respondent No.l. 3. Permission under Section 170 of the Motor Vehicles Act. 1988 to contest the claim on oll available defences was grwited to the appcllant-company. 4. Facts of the cose, in brief, are that on 25.3.2008 at about 4.00 p.ro. the claimant was traveling as passenger in the bus bearing re9istration number C604-E-1076. The said bus coJlided with the tra^or as a result of which the claimant sustained jnjuries on his left leg which resuH-ed in permanent disabjljty. The claimant claimed compensation to the tune of Rs.4,25,000/- mainly on the ground that he was the only earning niember in the family and due to his djsdblement, his family has sustained irreparable loss. 5. Non-applicants Nos.l A 2 have been proceeded ex-part-e. However, the appellant /non-applicant No.3 has filed jts written stcri-ement and denieci the clajm of the claimant on various grouncts. .1:, [^^?^-:-s I '® ^.// -^p 6. On the pleadings of the p<rties, the tribunal ha$ framed as marty as fiye issues and afrer hearjng the parties jn the matter has part'ly allowed the claim petition of the claimant and awarded a surn of Rs.3,71,000/- under various heads along with mterest @ 6%. 7, Learned counsel for the appelkmt hasja^itted that the clajmarrt hcd permanent disablement in relation to left- leg only and ther<?forethetrtt>unal has erred in calculotin9 the income of the »njur«Itreatjn9 his t<ri'<>l permanent djsablement to the extent of 60%. He has also submjtf-ed th<ri' the Medical Officer, who has examjned the ijnjured, has statcd in his statement thof permanent disability of the clajmant is, mentloned as 60%, in reJat-ion to his leftleg onfy and tha'efore the tribunal should not have calculated the compenstri-ion treating the permanerri' djsabjement ofthe claimant as 60% as whole. He has firther submjtted thcrt- oiccordin9 to the stotement of the Medical Officer the certificate has not been issued to the claimant in the format pr^cribed under the Rules and jt was preparecl according to the (ist of physically handicapped persons cnd was issued to the injured for 9ettln9 benefjt under a government scheme and the saro®was not issued to produce be-fore the tribunal. The Medical Officer has ftirther stated that the permanent djsability, which has been mentioned as 60%, is in relation to left 1®9and he has npt assessed the permanent djscdbjiityofthe whole body of the injured. He has also submitt-ed that the value of medicines purchased by the claimant has been asse»edos Rs.15,000/- in place of Rs.8,009/- for which the cash memos were submitt-ed by the claimant before the tnbunal. UH-Jmately, he submitt-ed that in such circumstances the tribunal has coromitl'ed mstoke in ossessmQ the loss of earning capdcity of the injured at 60%. 8. On the other hand, learned counsel appearing for the respondent hto.2 A 3 has suppwted the irapugned award. 9. We have heard learned counsel for the pcrties and perused the records of the tribunat as also the findings given jn the jrnpugned cward. lO.The tribund in the award has calculoEt'ed the income of injured as Rs.100/- per day and by presuming thcrt- the claimant, whe wcs (abourer by profession, /f^ ^•ii J would get work for 24 days only, assessed the incom®oftheclQJmwitandby applying the niultiplier of 17, assessed the loss of income of the jnjur<|d ot Rs.3,06,000/-. Besides this the tribunat has award<?d fts.l5,ODQ/- for medical treotment, Rs.15,000/- for nutritious diet, Rs.10,000/- for the attendant, Rs.i25,OCN3/- for pqin and sufferings. Thus, thetGtal<|imoNuntof compensation according to the tribunal comes to Rs.3.71,OQp/-. 11. After perysal of the assessment made by the tribunal, we see that the tribunal has ignored the toss of jncome for the pwkxd during which the injured remajned odmitt'ed in the hospital i.®. frwn 9.5.2008 (date of admjssion) to 28.7.2008 (date of dischwge). In the dischwge ticket the Consuftant had advised to td<e certain medicinet and thot has also not been assessed. Besides this, the expenses incurred in the hospital towards dtet for 82 days have also not bcsen taken jnto consideration. Thou9h the plea of the learned counsel fpr the appellant js thgt- thc injurecl had gonejxiir 15 days to his house due to strike of the doctors, but it cannot be disputed thot during this period he could not do his wok of lobourer. 12.So far as the contention raised bythe tewned counsel for the cippellant that the permanent dtSflfojljty of the clqlmant to the extent of 60% was onfy in respect of his left leg ond although jn the medical eerKficate it is mentioned that his condition is not likely to improve cnd reassessrBent was recommended but jt couM not have been treated as total 60% permanent discfcjement is concerned, we have given a deep thought over the contention raised by the learned counsel for the appellant and found that the claimoint was a labourer and due to his permanent disabiNty to the extent of 60% in relatjon to his left leg, he would not be able to be work as Jabourer in future as with one leg he cannot perform tbe work of a lcdbourer and therefore for the purpose of his job it cannot be said that he wos not disabled permanently to the extent of 60% as assessed by the tribunal. Anyhow in case the permanent djsabiljty js reduced, even then considenng the age of th®claimant i.e. 24 years, the muh'iplier of 18 should have been applied by the tribunal as per* decision of the Hon'bte Supreme Court- in the matt-er of Sorfa Wsrwo (Smt.) wd ethmv -vs- Iteffirf /r^ \ ^.£:^:5^ 1 tvs9] ^Y.. ^?"^' ^^•^i-.-^ Trwi^ort Ciorpwwtioii wid wiothw re^o^ed m (2009) SCC'W. Besides this, the diet money for 82 doys ©Rs.300/- per day was obvious but th® same has not been assessed bythe tribunal. Future roedical expenses and also toss of income during admission in the hospital have also not been assessed. All the aforesaid facts, which ought to have been td<en into considerotion bythetribunal, have nqt been taken into considerotjon by the tribunal whjle awcrding Rs.25^XK^ tow<rds pam and syf^ to permanent djsablement, which js on the lesser side. 13.In view of the above» sjnce no cross-appeal has been frJed by the dajmant for enhancement of the amount of compensatjon auvwded tp him, consjderm9 the above mentioned facts ond circumstances we are oftheopinion thot the amount awarded to the claimant by the tribunal is not excessive. 14. Coming to the ar^ument advanced by learned counsel for the appfillwrt that the tribunal should not have cajculated the compensort'ion treating the loss of earnm9 capacity of the injyred at 60%, part-icularly in vjew of the fact thot the Medical Officer has stated thot the cerl-ifjcate is issued not for the purpose of producing before the tribunal below. 15. The provision of the Motor Vehicles Act, 1988 rnd<es it clear that th®awarct must bejust, which meansthot compensationshoulcl,totheext-entpossible/ fully and adequately restore the claimcurt' to the posttjon prior to the accident. This means that he js to be compensated for his incibiljtyto lead a full life, his inabjlity to enjoy those normal amenjties which he wouJd have enjoyed but for the mjurjes,and his indbijity to earn as much cs he used to earn or could hwe earned. Incapacity to eorn is to be determined with reference to work the Jnjured wcs doing at' thc tjroe pf accident. Wha^ the claimant suffers a permanent disabjlity as a resuh- of injuries, the assessment of compensatton under the hecd of loss offuture ewnings,would depend lipon the effect and impac^ of such permanent disabtlity on his earning capacity. In most of the cases,the percentage ofeconomic (oss, that js, percentage of loss of eqrnmg capacity, <B'J$ing from a permanent disabjlity will be different from the percentage of permanent cljsabjlity. Suppose, the injured wos a driver oQed 30 years, earning Rs.30CX)/- per /^'' ^ y-',„-., i m month. His hand is oroputoted and his perrnanent dHsabiljty js assessed o* 60%. He was terminoted from hjs job as he couid no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. In this situation hjs loss of ^uture earning capacity will be more thqn the permanent dj$cibility sustained by him. 16. In the present case the injured, who is a labourer by profession (ncl ot the time of accident was 23 yearsof oge, has undergone treatment for a period of more than three months and while undergojng treGtment he faced four- operotions and even a rod has been insert-ed in hjs left le9. The said defect- in the leg of the claimant willcert-ainjy make him unfit to do the work, part-icularly in view of the fact thtrt he is labourer and has to do strenuous work, which involves physicat exertion. In addition to that, his body is unable to •ftind-ionproperly ancl heis unableto leacl a norrBat life. 17. Furt-her, the dod-or, who has been examined jn the instant case, has stoted thof aft-er examincrt-ion of the jnjured, he being the Senior Doctor and Member of the Medical Board has issued the cert-ificote of djsablement to the injured and *A to A* part- of which bears his si9rw*ures. In the cross- exoroinal'jon he has denied the suggestion that on the demand ofthe injured, a false cert-jficcrt-e has been issued to him. He hc® dso stated thof disablementjs not because of ne9li9ence on the part of the injured but the same js resuh* of jnjury. 18. In view of above, the cert-ificGte produced by the injured bcfare the tnbunal cannot be jgnored rocrely on the ground that the swne^as not issued in the formot preschbed under the kutes and thus, loss of earnmg assessed by the trjbunal is just ond proper <md the sarne do not call for any interference by this Court". 19.In the resuh-, the appeal has no substance, the same deserves to be dismissed and is hereby dismissed. No order as to costs. Roshan/- Sd/- I.M.Quddusi Judge ~Sd/- N.K. Agrawal Judge