Chattisgarh High Court
Arun Yadav vs Smt. Shashi Prabha Diwan Joujay on 3 April, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.04.07
15:27:26 +0530
2025:CGHC:15746
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1522 of 2017
Arun Yadav S/o Tekaram Yadav, Aged About 28 Years R/o Rani
Laxmi Bai Chowk, Kelabadi, Durg, Thana- Durg Kotwali, Tehsil
And District Durg, Chhattisgarh.
... Appellant
versus
1. Smt. Shashi Prabha Diwan Joujay W/o Late Umesh Kumar
Diwan, Aged About 42 Years R/o Quarter No. B /42, New Police
Line, Durg, Tehsil And District Durg, Chhattisgarh. (Driver -
Vehicle Hero Honda Splender No. C. G. 07 L N 8948)
2. (A) Branch Manager, Bajaj Aliyanj National Insurance Company
Limited, Aakash Ganga Complex Supela, Behind Police Traffic
Tower Supela, Tehsil And District Durg, Chhattisgarh. (Owner -
Vehicle Hero Honda Splender No. C. G. 07 L N 8948)
(B) Divisional Manager, Bajaj Aliyanj National Insurance
Company Limited, Shiv Mohan Bhawan Pandri Road Raipur,
Tehsil And District Raipur, Chhattisgarh. (Insurer - Vehicle Hero
Honda Splender No. C.G. 07 L N 8948)
... Respondent(s)
For Appellant : Mr. Amit Nayak, Advocate, on behalf of
Mr. Avinash Chand Sahu, Advocate
For Respondents : Mr. Prasant Sahu, Advocate, on behalf of
2. (A) & (B) Mr. Sangeet Kumar Kushwaha, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
03/04/2025
1. This appeal arises out of award dated 23.09.2017 passed by 8th
Additional Motor Accident Claims Tribunal, Durg (C.G.) in Motor
Accident Claim Case No.20/2012 awarding compensation of
Rs.2,72,000/- with interest @ 6% per annum, from the date of
application till its realization, in favour of the injured claimant.
2. The claim of appellant/claimant before the Tribunal, in brief, was
that on 16.01.2011 at about 11:15 p.m., when he was returning
from Durg on his motorcycle Hero Honda Plus No. CG 07 LF 0492,
near jail road in front of Swami Vivekanand Community Hall,
respondent No.1-Smt. Shashi Prabha Diwan Joujay driving the
offending motorcycle Hero Honda Splendor bearing registration
No.CG 07 LN 8948 rashly and negligently dashed his motorcycle,
as a result of which, he suffered grievous injuries on various parts
of his body and fell unconscious. With the help of local people and
friend, the claimant was immediately admitted to Ramkrishna Care
Hospital, Raipur for treatment.
3. It was claimed by Claimant Arun Yadav that before accident, he was
earning Rs.12,000/- per month working as an Accountant. On
account of the accident, he has become blind from the left eye and
has suffered serious injuries in both his legs, knees and other parts
of the body. Therefore, the claimant preferred an application before
the Tribunal claiming total compensation of Rs.8,80,000/- under
various heads.
4. On the basis of Permanent Disability Certificate (Exhibit P-13/C)
issued by Dr. C. S. More, in para 18 of its judgment, the Tribunal
found that there is 30% loss of vision in the left eye and 10% loss of
vision in the right eye. Thus, a total of 40% permanent visual
impairment (reduction in vision) has been found. On the basis of
the entire evidence presented, the award has been passed in
favour of the claimant as under:
Heads Amount
Medical expenses 69,000
Travelling/transportation 7,000
Special diet 10,000
Assistant 9,000
Loss of income during 27,000
treatment
Loss of income in future 1,00,000
Physical and mental agony 20,000
Loss of amenities 20,000
Future treatment and 10,000
outdoor medicines
Total Rs.2,72,000
5. The Tribunal has awarded total compensation of Rs.2,72,000 in
favour of the claimant with interest @ 6% per annum, from the date
of application till its realization. While passing the impugned award,
the Tribunal has exonerated the insurance company from its liability
on the ground of breach of policy conditions. Hence, this appeal is
for enhancement and for an order of pay and recover.
6. Learned counsel for appellant/claimant submits that the monthly
income of the appellant was Rs.12,000/- whereas Tribunal has
assessed it to be only Rs.4,500/- which should be enhanced. He
further submits that the compensation amount should be enhanced
by calculating his loss of income on the basis of 40% permanent
disability certified issued by the doctor. He also submits that though
the insurance company has been exonerated, considering the
beneficiary legislation of the Motor Vehicles Act, an order of pay
and recovery may be passed.
7. On the other hand, learned counsel appearing for the respondents
2 A & B opposes the submission made by the counsel for appellant
and submits that in the facts and circumstances of case, the award
passed by the Claims Tribunal is just & proper and does not require
any enhancement. He also opposes the prayer for an order of pay
and recover.
8. Heard learned counsel for the parties and perused the record.
9. In a motor accident claim case, what is important is that, the
compensation to be awarded by the Courts/Tribunals should be just
and proper compensation in the facts and circumstances of the
case. It should neither be a meager amount of compensation, nor a
Bonanza.
10. Now this Court shall examine as to whether the compensation
awarded by the Tribunal is just and proper compensation in the
given facts and circumstances of the case.
11. The Tribunal, in para-39 of the award has held that claimant Arun
Yadav has suffered permanent visual impairment but the claimant,
who was earlier doing a private job of Accountant, is currently
working as Assistant Teacher Panchayat in the Education
Department and his monthly salary is Rs. 11,500/-. Therefore, the
award in question has been passed by assessing a lump sum
amount of Rs. 1,00,000/- for loss of his future earnings due to
permanent visual impairment.
12. According to the permanent disability certificate Exhibit P-13/C
issued by Dr. C. S. More, 40% permanent visual impairment has
been found. Since the appellant is working as an Assistant Teacher
Panchayat in the Education Department, there does not appear to
be any loss in his income due to decrease in his eyesight. In the
above situation, the lump sum amount of Rs. 1,00,000/- awarded
by the Tribunal towards loss of future earnings is found to be
appropriate. Hence, there is no need to enhance under that head.
13. Thus, the amount of compensation awarded by the Tribunal is
found to be just & proper.
14. As far as the question of 'pay and recover' is concerned, in the case
the vehicle was found to be insured but the insurance company
was exonerated of its responsibility due to violation of insurance
conditions. The appellant/claimant requested for an order of pay
and recover which was opposed by the insurance company.
15. In the present case, admittedly, the offending vehicle was insured
with respondent no.2 but due to breach of policy conditions, the
insurance company has been exonerated. However, considering
the principles laid down by the Hon'ble Supreme Court in the case
of Amrit Paul Singh & another. Vs. Tata AIG General Insurance
Company Limited & others reported in (2018) 7 SCC 558
ordering the insurance company to pay first and then recover and
also taking note of the facts and circumstances of the present case,
particularly the fact that at the time of accident the vehicle was
insured with insurance company, it is directed that the Insurance
Company shall first pay the amount of compensation awarded to
the appellant/claimant and then recover the same from the
owner/driver of the offending vehicle.
16. In the result, the appeal is partly allowed to the extent indicated
herein above.
17. Record of the Tribunal be sent back forthwith along with a copy of
this order for information and necessary action, if any. Sd
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai
