A person shall be compensated for both the physical & mental injuries: Chhattisgarh High Court

1NAFRHIGH COURT OF CHHATTISGARH BILASPURM.A(C) No.13715Reserved on 15.12.2020Pronounced on 17.12.2020Roshan Goyal S o Katahur Goyal Aged About 40 Years R o Village Pendari Tahsil Takhatpur District Bilaspur Chhattisgarh .........Claimant AppellantVersus 1.Rakesh Kumar Malhotra S o Shyam Lal Malhotra Aged About 22 YearsR o Village Khajuri Nawagaon Kathakoni Tahsil Takhatpur District Bilaspur Chhattisgarh Registered Owner Of Motor Cycle No. C.G. 10 N C 4963 Chhattisgarh 2.Ajay Malhotra S o Shyam Lal Malhotra Aged About 20 Years R o Village Khajuri Nawagaon Kathakoni Tahsil Takhatpur District Bilaspur Chhattisgarh Driver Of Motor Cycle No. C.G. 10 N C 49633.Branch Manager I.C.I.C.I. Lombard Branch Office Vyapar Vihar Bilaspur Chhattisgarh .........Non Applicants RespondentsFor Appellant:Shri Basant Dewangan Advocate.For Respondents No.1 & 2:None though served.For Respondent No.3: Shri Amrito Das appears along with Shri Tessy Abraham Advocates.Single Bench:Hon ble Shri Sanjay S. Agrawal JC A V Award Judgment 1.This Appeal has been preferred by the Claimant under Section 173of the Motor Vehicle Act 1988questioning thelegality and propriety of the award dated 26.09.2015 passed by the 9thMotor Accident Claims Tribunal Bilaspurin ClaimCase No.188 2014 whereby the Tribunal has dismissed the Claim Petitionfiled under Section 166 of the Act of 1988. The parties to this Appeal shallbe referred hereinafter as per their description in the Court below. 2.Shri Basant Dewangan learned Counsel for the Applicant submits 2that the finding of the Tribunal holding that the Claimant has failed toestablish the specific number of the vehicle in question which caused theaccident is apparently misreading of the avements made in the claimPetition vis a vis the evidence both oral and documentary and is therefore perverse and liable to set aside. While inviting attention to thecharge sheetand the seizure memoit is contended thatthe vehicle in question i.e. motorcycle Hero Honda bearing registrationNo.CG 10 NC 4953 owned by Non Applicant No.1 Rakesh KumarMalhotra was involved however without taking note of these documentaryevidence and that by ignoring the evidence led by the parties in its propermanner the Tribunal has committed a serious illegality in dismissing theclaim.3.On the other hand Shri Das learned Counsel for Non ApplicantNo.3 has supported the award impugned as passed by the Tribunal. 4.I have heard learned Counsel for the parties and perused the entirerecord carefully.5.From perusal of the record it appears that on the fateful day i.e. on27.12.2013 Claimant Roshan Goyal was going by his motorcycle alongwith his sister in law Neeta Khandey from Bilaspur to village Pendari enroute he was dashed from his back side by the offending vehicle i.e.motorcycle Hero Honda bearing registration No.CG 10 NC 4953 owing torash and negligent driving by its driver namely Ajay Malhotra Non Applicant No.2. As a result of the alleged accident his right leg below theknee got fractured along with other injuries which he received in otherparts of his body. He was admitted into Gayatri Hospital Bilaspur wherehe was operated for fracture of Tibia and medial malleollus and an implant 3was put inside the bone i.e. a rod was fixed for the treatment of fracture. 6.On account of the aforesaid accident the matter was reported toP.S Chakarbhata in connection with Crime No.10 14 and after theinvestigation the charge sheetwas submitted before the JudicialMagistrate Belha against the driver of the alleged offending vehicle underSections 279 337 and 338 IPC while specifying not only the number of hisvehicle as CG 10 NC 4953 but by seizing the same from him vide seizurememodated 18.01.2014. It is true that the number of allegedvehicle was differently mentioned in the claim Petition as it was shown as CG 10 NC 4963 in the cause title of the memo of claim Petition while atparagraphs No.2 & 3 as CG 10 HC 4953 . However the documentaryevidence like charge sheetand seizure memowouldreveal the involvement of the vehicle having its registration No. CG 10 NC 4953 . That apart according to the statement of the driver of thealleged offending vehicle Ajay Malhotrait appears that when hewas going by the said vehicle the Applicant at the relevant time wasgoing to village Pendari accompanied by two others while driving hisvehicle in a rash and negligent manner and turned the same abruptlywithout showing the indicators of it and fell down due to loss of control overit. It means that the number of alleged vehicle was not disputed by thiswitness in his evidence nor any complaint has been lodged before thehigher authority as evidenced from paragraph 3 of his statement that itwas wrongly involved in the matter as such. It thus appears that due to thetypographical mistake the number of alleged offending vehicle has beenmentioned slightly different in the claim Petition. However in view of thedocumentary evidence like charge sheetand seizure memo 4(Ex.A 3) vis a vis the statement of the driver of the alleged offendingvehicle as observed herein above it cannot be said that the vehicle inquestion i.e. CG 10 NC 4953 was not involved in the alleged accidentoccurred on 27.12.2013. Consequently the finding of the Tribunal holdingthat the vehicle in question was not involved in the alleged accident isthus liable to be and is hereby set aside. 7.Since the accident was of the year 2013 and the statements of boththe parties have already been recorded therefore I deem it appropriate todetermine the amount of compensation payable to the Claimant RoshanGoyal and would consider further the fact as to whether it was being usedin violation of the policy as alleged by the insurer. 8.According to the Claimant he suffered permanent disability onaccount of the alleged accident which took place on 27.12.2013 but inabsence of any documentary evidence in this regard it cannot be held tobe so. It however appears from a bare perusal of the evidence of Dr. AjayJaiswalthe owner of the Gayatri Hospital where the Applicant wasadmitted on 27.12.2013 immediately after the occurrence of the allegedaccident that during his treatment he was operated for fracture of Tibiaand medial malleollus and an implant was put inside the bone. He opinedfurther that in such type of a case a person can lead his normal life aftersix months of the operation. It appears further from his evidence thatduring his treatment various medical bills i.e. Ex.A 9 to Ex.A 22 exceptEx.A 12 and Ex.A 13 were issued from his hospital. The Claimant istherefore entitled to a sum of Rs.16 723.67 rounded of to Rs.16 750 towards medical expenditure as evidenced by these bills. In addition tothis he is entitled to a further lump sum amount of Rs.10 000 towards 5mental and physical agony suffered by him owing to the alleged accident. 9.That apart a person is not only to be compensated for the physicalinjury but also for the loss which he suffered as a result of such injury inthe light of the observations made by the Supreme Court in the matter ofRaj Kumar Versus Ajay Kumar and Another reported in1 SCC343. As the applicant was in hospital for a period of 8 days and wasunable to work as a daily wager therefore the Applicant must havesuffered loss owing to it and would be entitled to be compensated in thisregard as well apart from suffering for mental and physical agony.According to the claimant he was a daily wager and used to earn Rs.300 per day monthly Rs.9 000 however in absence of its proof it cannot beheld to be so. His income therefore under such circumstances could beassessed as of an unskilled worker as provided under the MinimumWages Act 1948. Since the alleged accident occurred on 27.12.2013 itwould therefore be appropriate to consider his monthly income atRs.5 163 rounded off to Rs.5 200 prevailing at the relevant time as perthe Notification issued by the Prescribed Authority under the said MinimumWages Act 1948. The claimant would thus be entitled to a sum ofRs.1 387 rounded off Rs.1 500 owing to his hospitalization for 8 days.10.Consequently the Claimant is entitled to a total sum of Rs.28 250 with interest at the rate of 7% perannum from the date of filing of the claim Petition till its actual payment. 11.As far as the defence taken by the insurer that since the vehicle inquestion was being used in violation of the policy and therefore no liabilitycould be fastened upon it is however liable to be rejected in absence ofany cogent and reliable evidence led by the insurer as the Sujit Kumar Rai 6(NAW 2) who was examined by the insurer has however failed toestablish the same. In such circumstances the Insurance Companycannot be held to be exonerated from its liability as alleged. Accordingly it is held that the vehicle in question was not being used in violation of thepolicy and the insurer of it is thus held liable to indemnify the insured. 12.In view of the foregoing discussion the Appeal is allowed in partand the Non Applicants are held liable jointly and severally to satisfy theaforesaid amount of compensation and it is directed that Non ApplicantNo.3 I.C.I.C.I Lombard Insurance Company shall pay the aforesaidamount of compensation of Rs.28 250 to the Claimant with 7% interestper annum from the date of filing of the Claim Petition till its realization. Noorder as to costs. Sd JUDGEPriya 

Summary: A person is not only to be compensated for the physical injury but also for the loss, which he suffered, as a result of such injury, this remarkable stand was forwarded by Hon’ble Chhattisgarh High Court, in a single judge bench chaired by Hon’ble Justice Mr Shri Sanjay S. Agrawal, in the miscellaneous appeal case of Roshan Goyal v. Rakesh Kumar Malhotra &amp; ors., [M.A(C) No.1378 of 2015]. On the fateful day, i.e. on 27.12.2013, Claimant Roshan Goyal was going by his motorcycle along with his sister-in-law Neeta Khandey from Bilaspur to village Pendari, en route, he was dashed from his back side by the offending vehicle, i.e. motorcycle ‘Hero Honda’ bearing registration No.CG 10 NC-4953 owing to rash and negligent driving by its driver namely Ajay Malhotra, NonApplicant No.2. As a result of the alleged accident, his right leg below the knee got fractured along with other injuries, which he received in other parts of his body. He was admitted into Gayatri Hospital, Bilaspur where he was operated for fracture of Tibia and medial malleollus and an implant was put inside the bone i.e. a rod was fixed for the treatment of fracture. On account of the aforesaid accident, the matter was reported to P.S Chakarbhata in connection with Crime No.10/14 and after the investigation, the charge sheet (Ex.A-2) was submitted before the Judicial Magistrate, Belha against the driver of the alleged offending vehicle under Sections 279, 337 and 338 IPC while specifying not only the number of his vehicle as CG 10 NC-4953, but by seizing the same from him vide seizure memo (Ex.A-3) dated 18.01.2014. This Appeal has been preferred by the Claimant under Section 173 of the Motor Vehicle Act, 1988 (for short ‘the Act of 1988’), questioning the legality and propriety of the award dated 26.09.2015 passed by the 9th Motor Accident Claims Tribunal, Bilaspur (for short ‘the Tribunal’) in Claim Case No.188/2014, whereby the Tribunal has dismissed the Claim Petition filed under Section 166 of the Act of 1988. After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble SC observed that, “As far as the defense taken by the insurer that since the vehicle in question was being used in violation of the policy and therefore, no liability could be fastened upon it, is, however, liable to be rejected in absence of any cogent and reliable evidence led by the insurer as the Sujit Kumar Rai (NAW-2), who was examined by the insurer, has, however, failed to establish the same. In such circumstances, the Insurance Company cannot be held to be exonerated from its liability, as alleged. Accordingly, it is held that the vehicle in question was not being used in violation of the policy and the insurer of it is thus held liable to indemnify the insured.” The bench further added that, “the Appeal is allowed in part and the Non-Applicants are held liable jointly and severally to satisfy the aforesaid amount of compensation and it is directed that Non-Applicant No.3-I.C.I.C.I Lombard Insurance Company shall pay the aforesaid amount of compensation of Rs.28, 250/- to the Claimant with 7% interest per annum from the date of filing of the Claim Petition till its realization.”