Chattisgarh High Court

Monish Kumar Shah vs Ramchand Sathpati on 21 March, 2025

Author: Rajani Dubey

Bench: Rajani Dubey

                                   1




                                                  2025:CGHC:13515


                                                              NAFR

         HIGH COURT OF CHHATTISGARH AT BILASPUR


                         MAC No. 954 of 2019

1 - Monish Kumar Shah S/o Arvind Kumar Shah Aged About 29 Years
Occupation - Service (G.M.R. Energy Angool Urissa) Permanent R/o
Street No. 03, Vikasnagar, Kotraroad Raigarh, District Raigarh
Chhattisgarh.
                                                           ... Appellant


                                versus

1 - Ramchand Sathpati S/o Prahlad Sathpati Aged About 35 Years
Occupation - Vehicle Owner, R/o Mahuban Chhak Ariya, Police Station
Paradeep, District Jagatsinghpur Udissa.


2 - Jashwant Sahu S/o Padiya Sahu, Occupation-Vehicle Driver, R/o
Village-Mundamala    Sahi,   Police    Station-Chandipada,   District   -
Jagatsinghpur (Udissa)


3 - The New India Insurance Company Limited Through S.B.I Main
Branch Kewdabadi, Near Bus Stand Raigarh Chhattisgarh
                                                        ... Respondents

For Appellant : Mr. Anand Kesharwani, Advocate on behalf of Mr.V.K. Pandey, Advocate.

For Respondent No.3 : Mr. Anil Gulati, Advocate.

Hon'ble Smt. Justice Rajani Dubey, J

Judgment on Board

21/03/2025

This appeal is by the injured claimant against the award dated

15.2.2019 passed by First Additional Motor Accident Claims Tribunal,

Raigarh in Claim Case No. 108/2015 awarding total compensation of

Rs.10,78,700/- with interest @ 9% per annum from the date of

application till realization, fastening liability on the non-applicant

No.3/insurance company.

02. As per claim petition filed under Section 166 of the Motor Vehicles

Act, 1988, on 6.2.2014 at around 4:00 Hours the claimant was going to

Village-Angul by his motorcycle bearing No. OD 19/3946. However, on

the way non-applicant No.2/driver by driving vehicle Tata Truck bearing

No. OR 04/L 9172 (hereinafter referred to as "the offending vehicle") in

a rash and negligent manner dashed his motorcycle as also one Aulto

car parked there. At the relevant time, the offending vehicle was owned

by non-applicant No.2 and insured with non-applicant No.3. In this

accident, the claimant, who was 29 years of age and working as Junior

Manager in GMR Energy and drawing monthly income of Rs.45,000/-,

suffered serious injuries, remained in Apollo Hospital, Bhuvneshwar

from 9.2.2014 to 22.4.2014; rod was inserted in his right hand and right

leg which is to be removed through surgery in future. Hence he

claimed a total sum of Rs.19,27,905/- under various heads from the

non-applicants.

03. Non-applicants No.1 & 2 did not file any written statement and

remained ex-parte whereas non-applicant No.3 in its written statement

denied the fact that the claimant was working as Junior Manager and

drawing income of Rs.45,000/- per month. It also denied any such

accident on 6.2.2014 by the offending vehicle. It was also contended

that the claimant suffered injuries due to his own rash and negligent

act. This apart, it was also stated that non-applicant No.2 was not

having a valid and effective driving licence as also the vehicle was

being plied without a valid fitness certificate and permit. Therefore, the

insurance company is not liable to pay any compensation to the

claimant.

04. Based on the pleadings of the respective parties, the learned

Tribunal after appreciation of oral and documentary evidence on record

passed the impugned award as mentioned above. Hence this appeal

by the claimant for enhancement.

05. Learned counsel for the appellant/claimant submits that the

Tribunal was not justified in assessing the income of the injured as

Rs.4,500/- per month whereas it should have been taken as

Rs.48,000/- as he was working as operating engineer. No amount for

future medical treatment and future prospect has been awarded. The

Tribunal has also not awarded the total amount spent on medical

treatment despite the claimant filing documentary evidence in this

regard. Most importantly, the finding of learned Tribunal regarding

contributory negligence of the injured is also erroneous as there is no

evidence on record to substantiate this fact whereas it is proved by the

claimant that non-applicant No.2/driver after hitting his vehicle also

dashed a car parked on its side which clearly shows that non-applicant

No.2 was solely responsible for this accident.

06. On the other hand, learned counsel for the respondent/insurance

company supports the impugned award and submits that the Tribunal

considering all the relevant aspects of the matter has rightly awarded

compensation which needs no interference by this Court.

07. Heard learned counsel for the parties and perused the material

available on record.

08. On the basis of pleadings of respective parties, learned Tribunal

framed total six issues including Issue No.3 relating to contributory

negligence which reads as under:

                   वाद प्रश्न                             निष्कर्ष

3. क्या दुर्घटना में योगदायी उपेक्षा का सिद्धांत       "हॉ प्रमाणित "
लागू होता है ?

While dealing with the said issue, learned Tribunal in para 10 of

the impugned award observed that there was a head-on collision

between the vehicles; the applicant/claimant seeing the offending

vehicle coming from opposite direction also ought to have ridden the

motorcycle cautiously. Hence there is contributory negligence on the

part of the applicant to the extent of 1/4th.

09. It is clear from the record of learned Tribunal that as per FIR

(Ex.P/2) non-applicant No.2 Jashwant Sahu driver of truck bearing No.

OR 04 L 9172 was rash and negligent. After full-fledged investigation

charge sheet was filed against driver of the offending vehicle Jashwant

Sahu. The applicant's witnesses also stated that it is non-applicant

No.2 who was responsible for this accident.

10. Non-applicant No.1 & 2, owner and driver of the offending

vehicle, neither filed written statement nor did they appear before the

learned Tribunal and remained ex-parte. As such, the oral and

documentary evidence adduced by the claimant remain unrebutted. As

such, there is nothing on record to prove that the applicant was in any

manner responsible for or contributed to the accident. The finding of

learned Tribunal regarding contributory negligence on the part of the

applicant/claimant merely on account of there being head-on collision

is not in accordance with law and therefore, it is liable to be set aside.

11. As regards income of the injured claimant, though he has

pleaded that at the time of accident he was working as Operator

Engineer and drawing salary of Rs.48,000/- pm, however, no oral or

documentary evidence to prove his income or nature of job has been

adduced by him. Therefore, the learned Tribunal on notional basis

assessed his income at Rs.4,500/- per month. However, considering

the fact that the accident took place in the year 2014 when the

minimum wages of unskilled labour was Rs.5,163/-, the same can

safely be taken as income of the claimant in this case.

12. It is also seen from the record of the Tribunal that on account of

this accident, the claimant remained hospitalized from 6.2.2014 to

9.2.2014 and again remained hospitalized from 9.2.2014 to 15.4.2014.

As per the claimant he was bed ridden from nine months on the advice

of the doctors. PW-2 Dr. Rajkumar Gupta states that the Medical Board

after examination of the claimant issued disability certificate (Ex.P/131)

which bears signature of Dr. Tondar, CMO and himself, and they found

20% permanent disability suffered by him. As per medical treatment

papers of the claimant he was operated upon and rod was inserted in

his right thigh and right hand. His evidence remain unrebutted in the

cross-examination. Even after being discharged from hospital, the

claimant would not have been in a position to work for a month or two

as efficiently as he would be doing prior to such disability. However,

learned Tribunal did not consider this aspect and awarded no amount

even for loss of earning during the period he was confined to bed.

Looking to the medical documents filed and proved by the claimant, the

amount of Rs.8.11 lacs awarded towards medical expenses by the

Tribunal appears to be just and proper. Thus, considering the facts and

circumstances of the case, age of the claimant; the permanent

disability, the period of hospitalization; the nature of medical treatment

etc. claimant is held entitled for compensation in the following manner:

Sl. Heads                                          Calculation
No.
01.   Income of the injured claimant             @ Rs.     61,956/-      per
      Rs.5,163/- per month.                        annum

02. Total loss of earning due to 20% Rs.2,10,647/-

permanent disability.

(20% of Rs.61,956/- x multiplier 17)

03. Loss of earning for 09 months Rs.46,467/-

(Rs.5,163 x 9)

04. Medical expenses Rs.8,11,000/-

(as awarded by Tribunal)

05. For pain and suffering 1,00,000/-

(as awarded by Tribunal)

06. For attendant, conveyance and special Rs.50,000/-

diet.

Total: 12,18,114/-