IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.(C) No.. .5.^.? OF 2008 fAPPEAL VALUED AT Rs.4.12.500/-) ^ APPEAL UNDER SECTION 173 OF THE MOTORVEHICLESACT. 1988. ; APPELANT : (NON-APPLICANT^ ^ .•^"^^ ^^•^'^•^ i^-.—--'"^^/ L'1 RESPONDENTS :1. (APPLICANT) ^> United India Insurance Company Limited, Through: Its Branch Manager, T.P.agar, Korba, Distt.-Korba (CG) VERSUS Dildas, S/0-Bihari Das, Caste- Panika, aged-25 years, R/0- Dhawaipur, P.S. & Tah.- Katghora, Distt.- Korba (CG) ( NON-APPLICANT :2. No:l) (NON-APPLICANTN ^ :3. 0.2) Shani Kumar Chauhan, S/0- S.G.Chauhan, R/O-Vill. Nevsa, Out Post-Hardibazar, P.S.- Kusmunda, Tah.-Katghora, Distt.-Korba (CG) (Driver) Sandeep Agrawal, S/0-Kanta Agrawal, R/O-Main Road Katghora, P.S. 85 Tah.- Katghora, Distt.-Korba (CG)(owner) ^c""^ //^^.^ ^•/ .^^^ CCs^il ^j "''^^sss^ :^^ r— HIGH COURT OF CHHATTI8GARH. BILASPUR DB: Hon*ble I. M. QUDDU8I & Hon*ble G. MINHAJUDDIN, JJ APPBLLANT: RESPONDBNT8: M.A(Ct NO.S30/2008 United India Insurance Compaay Ltd. Vs. Dildas aiid two ofhers MISC. APPBAL UNDBR SBCTION 173 OF THB MOTOR VBHICLBSACT. 1988 Appearance: Mr. Dashrafh Gupta, counsel for the appeUant Mr. Amiyakant Tiwari, counsel for respondent No. 1. Per I.M. OUDDUSI. J. ORAL ORDBR (05.07.2011) 1. This appeal has been filed by fhe Insuraace Coinpaay agamst the impugned award dated 27.11.2007 passed by Addl. Motor Accident CIaims Tribunal, Katghora, District Korba (C.G) in Claim Case No.296/2007 on the ground of UabiLity as weU as quantum. 2. Brief facts of the case as per the version of the iajured/clafcmaat are fhat on 26.4,2005 he had gone to work in Tmck bearing Rega.No.C.G.12-ZC/0662 as laboiirer (Hamali) along-wifh others takmg the load of rice to Kendai fromi Katghora. When they were retuming from Kendai after unloadin^g fhe rice, on the way ia fhe night at about 10.00 p.ia., near Sarbhoka tuming the said Truck which was beiag driven by Respondent No.2 ia a rash and negUgent inaaner dashed agaiast a tree aad turaed turtle, as a result ofwhich, Dildas sustained serious irijuries. His left leg was fractured and acid water of batteiyfeSl upon his left leg as a result of which, fhe bone was melt. There were also iajuries on ofher parts of fhe body. The claimant became permaaenfly disabled due to titie iajxiry sustained bv him ia fhe said accident axid he is not able to work. Therefore, he has fUed clami petition u/s 166 ofthe Motor Vehicles Act claimiag compensation to fhe tune of Rs.4,12,500/- on various heads, 3. The learaed Claims Tribunal held that the vehicle m question was iavolved ia fhe accident due to which fhe clamiaat sustaiaed serious injuries aad became permaaentiy disabled. The Tribunal haviag treated fhe disabUitv to the extent of 64% has awarded a total compensation of Rs.4,12,500/- with iatercst @ 8% per aaniim. which fhe claiinaat is entitled to receive firom appeUant aad respondents 2 & 3 joiatiy or severaUy. 4. We have heard leamed counsel for fhe pardes at length and have also gone fhrough fhe records offhe Tribunal, 5. Learaed counsel for tibie appellaat has subxmtted fhat in the msuraace policy two employees were iasured, fhe firet employee was driver and fhe second one should have been trcated as helper. The mjured was sittmg in the Truck as a labourer (HamaU) who got mjury ia the said accident. If two employees werc msured and one employee gets injury, ' it is not open for the Insuraace Compaay to say fhat fhe msuraace was not made for fhat employee who was iajured aad thercfore, siace ia this case only one employee has ^ been injured that is clafcmant, and fhe insuraiice poMcy was meaat for two employees fhe mjurcd is covercd by the msuraace policy. Therefore, tiie contention of fhe leanied counsel for the appellant is not sustamable. However, wifh regard to fhe pennaaent disabiUty certificate issued by fhe Medical Board, learaed Counsel for fhe appeUaat has submitted fhat fhe certfcficate was not proved by aay member of the Board or authorized by them to prove fhe same and as such fhe appeUant could not get any opportunity to get clarification about fhe issuaace of the disability certiificate aad also loss ofworkfcag capacity offhe iajurcd. We are of the opmion fhat fhe loss of earaiag capacity is not the substitute for fhe percentage of physical disablement which is one of fhe factors to be taken iato account. Therc are also several factors which are rcquired to be taken mto consideration for determmmg the amount of coinpensation. The permaaent disability has a direct rclationship wifh fhie loss of Umb. Thereforc, the Tnbunal should have taken mto consideration fhe relevaat factors before awardiag compensation. In fhis regard, the law laid down by Hon'ble fhe Supreme Court in case of National Insurance <^>mpany Ltd. Vs. Mubasir Ahmed and another (2007) 2 8CC 349 (Para 8) and Oriental Insurance Co. Ltd Vs. Mohd. Nasir and another, 2009 AIR 8CW 3717 (Paras 8 to 14 & 16) is also to be foUowed 'while determiaing fhe compensation in. case of personal mjuiy. The Tribunal shaU also conduct enquiry as would be necessaiy for fhe purpose of determination of facts as ^•^, '^•^ 6'fc--S»' ^g^,p^-^l§ ' ^ -^^^ J v^/ provided in Riile 226 offhe C.G. Motor Vehicle Rules, 1994 aad sections 168 & 169 of the Motor Vehicles Act, 1988 to ascertam fhe trufh rcgardmg fhe mjuries sustainied by the clainiaat aad fheir eflFect especiaUy fhe extent of permanent disabiUty. 8. Further ia Rqf Kunwr -vs- AJag Kumw and another decided on 18th October, 2010 aad reported in IV (2010) Aacident & Campensatian Cases 81S (SC)f Hon^le the Apex Court has held that the clamx petition is not a civU siut which ahnost depends upon the evidence led by the parties only. Therefore, it is fhe duty of fhe Tribunal to conduct a proper enquiry iato fhe claim for determiamg the tfjust compensation'. The Supreme Court has fixrther held in para 11 which is quoted below : "11. The Tribunal should not be a sUent spectator when laedical evidence is tendered iii regard to the mjuries aad fheir efiTect, ia partlcular fhe extent of permaaent disabiUty. Sections 168 aqd 169 of the Act make it evident fhat fhe Tribunal does not function as a neutoral umpire as ia a civU suit, but as aa active explorer and seeker of tnifh who is luired to 'hold aa iaaimv iato fhe claim' for detenniniag fhe 'iust conipensation", The Tnbunal should fherefore take aa active role to ascertam the true aad corrcct position so fhat it can assess fhe 'iust compensation'. While dealing with personal iajury cases, fhe Tribunal shoiild preferably equip itsetf wifh a Medical Dictionary aiid a Handbook for evaluation of permaaent physical impainnent (for example fhe Maaual for Evaluation of Penaanent Physical Impamnent for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indiaa equivalent or other aufhorized texts) for understaadmg fhe medical evidence and :^"^ fiC, ,,.:„.., %. ^ •^ ''•^"'•.^'•'••'••'^^^ .•.';. _-n'.. ../•"" •:---;\ .. // assessing fhe physical and functional disabiMty. The Tribunal niay also keep ia view the first schedule to the Workmen^s Compensation Acty 1923 which gives soiae iadication about fhe extent of permaaent disabUity in. differcnt types of iajunes, ia fhe case of workoien. If a Doctor giviag evidence uses technical medical terms, fhe Tribunal should instruct him to state ia addition, ia siDaple non-medical terms, the nature aad fhe effect ,of fhe iajiuy. If a doctor gives evjdence about fhe percentage of permaaent disabitity, the Tiibunal has to seek clanfication as to whefher such percentage of disability is fhe fiuictional disabilitv wifh reference to fhe whole bodv or whefher it is onlv wifh. reference to a lunb. If fhe nei^entase of Demiaaent disabiUtvr is stated wifh reference to a limb. fhe Tribunal wiU have to seek the doctor's opmion as to whether it is possible to deduce fhe corrcspQndiag functional permaaent disability wifh reference to the whole bodv aad if so fhe percentage,^ (Emphasis sypplied) 9. In view of the above discussion, we are of fhe opiaion fhat fhe matter requires rcconsideration at the end of the Tribunal in respect ofquantum part i.e., assessment of fhe compensation to be awarded to the claimant iajured with reference to fhe permaaent disability, For fhe above purpose, the Tribunal shatl conduct proper enqiiuy and find out fhe fiitLire loss of earamg of the claimaat wifh reference to the pennaaent disabiUty aad ia this rcgard, fhe Tribiinal may get fhe opiaion offtie Medical Board. 10. ' Hence, we allow this appeal m part aad rcmit fhe matter ~r back to the Tribunal for decision afresh m view of fhe observations inade herein above. 'Y.. 11. Needless to mention that ffae parties shall be allowed to amend the pleadin.gs, adduce further evidence, file documents or get the documents verified etc., and thereafter decision shaU be taken afresh at the earUest The Tribunal shaU conduct aa enquiry, which is necessary for determiniag fhe just compensation. The parties shatl appear before fhe Clamis Tribunal on let August^ 2011, The records of fhe Tribunal shall be sent back wifhout furtherdelay, 12. The ainount which has already been deposited by fhe Insuraace Compaay, shall retaam ia a fixed deposit in a NationaUzed Baak for a period of six mionths extendable froni tibaie to time, However, ifany part thereofor fhe whole has already been disbursed to fhe claimant, the same shatl be subject to fhe award niade by fhe Tribunal. 13. In fhe result, the appeal is aUowed ia part. No order as to costs. ^^ Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge 2?ao