Gauhati High Court
Page No.# 1/14 vs Prafulla Konwar And 2 Ors on 28 August, 2025
Page No.# 1/14
GAHC010138122023
2025:GAU-AS:11654
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./251/2023
ORIENTAL INSURANCE COMPANY LTD.
A CENTRAL GOVT. UNDERTAKING, HAVING ITS REGIONAL OFFICE AT
GUWAHATI, GS ROAD, ULUBARI, GUWAHATI 781007, REPRESENTED BY
THE DEPUTY MANAGER,GAUHATI REGIONAL OFFICE, ULUBARI,
GUWAHATI 781005
VERSUS
PRAFULLA KONWAR AND 2 ORS.
S/O GHANA KONWAR,
RESIDENT OF 44TH ASSAM RIFLES, PO LOKRA, PS RANGAPARA, C/O 99
APO, DIST SONITPUR, ASSAM, 784102
PERMENENT ADDRESS
VILLAGE RANGAJAN KONWAR GAON, PO RANGAJAN, TITABOR, DIST
SONITPUR, ASSAM 784101
2:SRI SAROJ DEVI RATHI
W/O SRI JUGAL KISHOR RATHI
RESIDENT OF K.B ROAD
NORTH LAKHIMPUR
PO AND PS NORTH LAKHIMPUR
DIST LAKHIMPUR
ASSAM 787001
3:SRI HEMA PHUKAN
S/O SRI SUREN PHUKAN
RESIDENT OF VILLAGE DHAPALIAL GAON
GHILOMARA
PO AND PS LAKHIMPUR
DIST LAKHIMPUR
ASSAM 78705
Page No.# 2/14
Advocate for the Petitioner : MS. R D MOZUMDAR, MS. C MOZUMDAR,MR. S P SHARMA
Advocate for the Respondent : MR. N BORUAH, S KHAN (R-1),MR. K BHATTACHARJEE (R-1)
Linked Case : MACApp./195/2024
PRAFULLA KONWAR
S/O GHANA KONWAR
R/O 44TH ASSAM RIFLE
P.O.- LOKRA
P.S.- RANGAPARA
DIST.- SONITPUR
ASSAM.
VERSUS
SAROJ DEVI RATHI AND 2 ORS. A
W/O JUGAL KISHOR RATHI
R/O K.B. ROAD
NORTH LAKHIMPUR
ASSAM.
2:HEMA PHUKAN
S/O SUREN PHUKAN
R/O DHAPALIAL GAON GHILOMARA LAKHIPUR
DIST.- LAKHIMPUR
ASSAM.
3:ORIENTAL INSURANCE COMPANY LTD
T.P (HUB) GAUHATI REGIONAL OFFICE G.S. ROAD
PIN- 781007.
------------
Advocate for : MR. K BHATTACHARJEE
Advocate for : MS. R D MOZUMDAR (R-3) appearing for SAROJ DEVI RATHI
AND 2 ORS. A
Linked Case : I.A.(Civil)/899/2025
Page No.# 3/14
SRI PRAFULLA KONWAR
S/O- LATE GHANA KONWAR
RESIDENT OF 44TH ASSAM RIFLES
P.O-LOKRA
P.S-RANGAPARA 99 APO
DISTRICT-SONITPUR
ASSAM
PERMANENT ADDRESS VILLAGE RANGAJAN KONWAR GAON
P.O-RANGAJAN
DISTRICT-JORHAT
ASSAM
PIN-785630
VERSUS
ORIENTAL INSURANCE COMPANY LTD
REGISTERED OFFICE AT ORIENTAL HOUSE A 25 27 ASAF ALI ROAD NEW
DELHI
REGIONAL OFFICE AT GUWAHATI-07
REPRESENTED BY THE REGIONAL MANAGER
Advocates
For the Appellant : Ms. R.D Mozumdar
For the Respondent No.1 : Shri. K. Bhattacharjee
Date of Hearing : 21.08.2025.
Date of Judgment : 28.08.2025
BEFORE
HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER
JUDGMENT & ORDER (CAV)
1. MAC Appeal./251/2023 and MAC Appeal No. 195/2024 have been heard
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together and disposed of by this common judgment and order as the appeals
are arising out of the same judgment and award dated 22.03.2023 passed by
the MACT, Sonitpur Tezpur in MAC Case No. 155/2011.
2. I have learned counsel for the appellant Ms. R.D Mozumdar in MAC 251/2023
who is also the counsel for the respondent/insurer in MAC Appeal 195/2024. I
have also learned counsel, Shri. K. Bhattacharjee for the appellant in MAC
Appeal No. 195/2024 who is also the counsel for the respondent No.1/claimant
3. The case of the appellant/insurer in MAC Appeal 251/2023 is that the learned
tribunal did not consider the fact that the claimant/respondent was not removed
from service due to disability. It was the own admission of the claimant in his
cross examination that he was directed to go on retirement on completion of 55
years of age or 30 years of continuous service. Therefore the retirement of the
claimant was not related to his injuries sustained in the accident.
4. Learned counsel for the appellant/insurer submits that the leaned tribunal did
not consider the fact that it was the own admission of the claimant/respondent
in his cross examination that even on 15.02.2017 he was still in service and was
getting regular salary and therefore there was no loss of income due to the
accident.
5. Another ground which the appellant/insurer has taken is that the learned
tribunal did not consider the contradictory statements of CW-2/doctor in his
evidence when he stated that he had found the right upper limb below the
elbow joint amputated. This witness again in his evidence on 17.02.2022 stated
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that in his previous examination-in-chief he had mentioned that 40% permanent
disability of the claimant had been assessed with regard to the right arm but in
Exhibit 8/disability certificate which was shown to him, he had mentioned that
the disability is related to post operative multiple fracture right upper limb. In
medical terms the disability is in respect of right upper limb and CW-2/Doctor
admitted that there is a difference in his opinion in examination- in chief and
cross examination with regard to the disability. In spite of the fact that the
disability was not proved, the learned Tribunal awarded Rs. 39,00,000/- as
disability compensation based on his evidence.
6. Learned counsel for the appellant/insurer has also submitted that the
claimant did not suffer any disability and his retirement from service was upon
attaining 55 years of age or 30 years of continuous of service which was not
related to any disability arising out of the accident.
7. It is also stated by the appellant/insurer that the claimant in his cross
examination admitted that he received full salary during his treatment and after
getting treatment for 6 months he had joined his service and therefore, there
was no loss of income of the claimant.
8. Learned Counsel for the appellant/insurer therefore submits that the learned
tribunal has committed serious error by awarding Rs.39 lakhs towards disability
compensation when the evidence clearly revealed that there was no disability of
the claimant arising out of the accident and also in view of the fact that the
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claimant himself admitted in his evidence that he did not spend anything during
his treatment as the expenses were borne by his department.
9. Learned counsel for the appellant/insurer relies on the case of Raj Kumar
Vrs Ajay Kumar and another reported in (2011) 1 SCC 343 in support of
her contention. Wherein the Hon'ble Supreme court held as under:-
"19. We may now summarize the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of
earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person,
cannot be assumed to be the percentage of loss of earning capacity. To put it differently,
the percentage of loss of earning capacity is not the same as the percentage of
permanent disability (except in a few cases, where the Tribunal on the basis of evidence,
concludes that percentage of loss of earning capacity is the same as percentage of
permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to
assess the extent of his permanent disability can give evidence only in regard the extent
of permanent disability. The loss of earning capacity is something that will have to be
assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning
capacity in different persons, depending upon the nature of profession, occupation or job,
age, education and other factors."
10. Learned counsel for the appellant/insurer further submits that the disability
certificate was obtained from another hospital and not from the army hospital
where the claimant was treated. She has also argued that the tribunal has not
taken into account the fact that the disability was not proved regarding the
percentage of permanent disablement but awarded an amount of Rs. 39 Lakhs
as compensation for disablement.
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11. Relying on the aforementioned judgment of Raj Kumar (supra), learned
counsel submits that when a claimant suffers a permanent disability as a result
of injuries the assessment of compensation under loss of future earning would
depend upon the effect and impact of such permanent disability on his earning
capacity. The tribunal should not mechanically apply the percentage of
permanent disability as the percentage of economic loss or loss of earning
capacity. She submits that the percentage of economic loss or percentage of
loss of earning capacity arising from a permanent disability will be different from
the percentage of permanent disability. Therefore, the tribunal has to first
decide whether there is any permanent disability, if so, the extent of such
permanent disability. If the tribunal concludes that there is no permanent
disability then there is no question of proceeding further and determining the
loss of future earning capacity. Only if the tribunal concludes that there is
permanent disability then it would it will proceed to determine the loss of future
earning capacity. Leaned counsel has therefore prayed that the impugned
Judgment dated 22.03.2023 may be set aside and quashed as the disability has
not been proved.
12. Per contra, the claimant appellant in MAC 195/2024 has preferred the
appeal on the ground that the claimant appellant had suffered permanent
injuries as a result of the accident and therefore he had filed MAC Case No.
155/2011 under Section 166 of the MV Act, 1988 before the learned MACT,
Sonitpur Tezpur Assam but the same was dismissed on 27.02.2017 on the
ground that the clamant did not suffer any loss of income as he was getting his
regular salary during the period when he was under treatment.
13. Against the judgment and award dated 27.02.2017, the appellant/clamant
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preferred an appeal vide MAC Appeal No. 468/2017 before this Court.
14. This Court allowed the MAC Appeal No. 468/2017 on 28.11.2019 stating
that the appellant/claimant had sustained permanent disability due to which he
was given compulsory retirement and had referred to a decision of the
Meghalaya High Court in WP(C)/12/2015 wherein the appellant/petitioner along
with other colleagues had filed the writ petition against their compulsory
retirement from service on medical grounds and the same was dismissed by the
Meghalaya High Court. Learned counsel states that in MAC Appeal 468/2017,
the counsel of the Oriental insurance company also fairly submitted that the
impugned order dated 27.02.2017 passed by the learned tribunal in MAC Case
155/2011 appeared to be erroneous and unreasonable.
15. Thereafter, MAC Appeal 468/2017 was disposed of by this Court on
28.11.2019 remanding back the case to the Tribunal for fresh adjudication on its
merit giving liberty to the appellant/claimant to adduce evidence and be
subjected to cross-examination. It was also directed that the
respondents/insurance company would also be at liberty to adduce further
evidence, if necessary.
16. Thereafter, the appellant/claimant filed additional affidavit before the
learned tribunal and exhibited his documents, including his pay certificate and
the report of the medical board along with his medical documents. The
appellant /claimant was examined and cross-examined and subsequently the
impugned judgment and award dated 22.03.2023 was passed.
17. The claimant/appellant has filed the appeal on the ground that;-
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i) The appellant claimant sustained grievous injurious and his disability was
assessed as 40% by the District Disability Rehabilitation, Centre Sonitpur,
Assam. And his department had also categorized his disability as A2
permanent and had given him compulsory retirement on that ground. If the
accident had not happened, the appellant claimant could have served in the
Assam Rifles for more than 10 years and after retirement he could have
applied for another job because after retirement of an Army personnel the
Government of India offers ample opportunities for reemployment in various
departments according to their ranks, but the appellant claimant became
unfit to get any kind of job after his compulsory retirement and at the time
of the accident the appellant claimant was drawing a salary of Rupees
43,136/- per month. However, after his compulsory retirement the appellant
claimant is getting a monthly pension of Rs. 21,150/- only. Therefore there
was loss of future earning due to the disability. But, the learned tribunal
wrongly took the monthly income after deducting the pension amount and
arrived at Rs 25,000/- only as monthly income.
ii) Another ground which the appellant/claimant has taken is that according
to the case of Vimal Kanwar and others Versus Kishor Das and
others reported in (2013) 7 SCC 476, the provident fund, pension and
insurance shall not be deducted from monthly income. However the tribunal
has mistakenly taken the monthly income as Rupees 25,000/- instead of
Rupees 43,136/- which was his monthly salary at the time of the accident.
iii) The next ground taken by the appellant claimant is that he was 45 years
at the time of the accident and as per the second schedule of the MV Act,
1988 the multiplier should have been 15 but the tribunal calculated the age
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of the claimant according to the date of his compulsory retirement i.e., 49
years and took the multiplier as 13 instead of 15.
iv) Another ground which the appellant claimant has taken is that the
tribunal failed to grant any compensation towards future prospects. It is
stated that at the time of the accident the appellant claimant was 45 years
and as per the decision of the Supreme Court in Sarla Varma Case
reported in (2009) 6 SCC 121, when the age of the victim is between the
age of 40 to 50 years then 30% of income should be added to the total
income. However, the learned tribunal failed to add 30% of the income to
the actual salary.
18. In view of the above grounds and submissions, learned counsel for the
appellant claimant prays that the impugned judgment and order dated
22.03.2023 may be enhanced and modified as given below;-
1.Loss of earning of Victim Rs 43,136X12X15 Rs 77,64,480/-
2.Loss of future prospect Rs 77,64,480X30% Rs.23,29,344/-
3.Compensation for pain and Rs 2,50,000/- Rs.2, 50,000/-
suffering
4.Loss of amenities and Rs 2,50,000/- Rs.2,50,000/-
enjoyment of life
TOTAL Rs.1,05,93,824/
(one crore five lakhs ninety three thousand eight hundred twenty four)
19. The Court has given due consideration to the submissions of the opposite
parties and has perused the pleadings as well as the Trial Court Record and also
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considered the authorities relied upon by the parties.
20. The factum of the accident and injury sustained by the claimant appellant
and the validity of the insurance policy is not disputed by the insurer. Rule 48 of
the CCS Pension Rules 1972 deals with retirement on completion of 30 years of
qualifying service. It provides two options; a government servant can voluntarily
retire after giving notice or the appointing authority can require the employee to
retire in the public interest. In either case, the employee is entitled to a retiring
pension. The claimant appellant as per the records was appointed to the post of
Rifle man (general duty) on 28.08.1995. And he was retired from service on
retiring pension w.e.f., 01.09.2015 under the provisions of Rule 48 of the CCS
Pension Rule 1972. Under the provision of the aforementioned pension rules,
the petitioner had become due for service review on completing 30 years of
service in 2015 and he was found unfit for further retention in service by a duly
constituted service review board held at 44 Assam Rifles. Due to his medical
unfitness he was found to have been placed in low medical category for his
disabilities which are mentioned in Exhibit-15. As per the Order Memo No.
1.13013/Rec-032/201422/1388 dated 22 June, 2014 which was produced by the
Assam Rifle authorities before the learned tribunal, the appellant claimant along
with two other persons were found unfit to be retained in service beyond 30
years or 55 years of age whichever is earlier and he was compulsorily retired
from service as per Rule 48 of the CCS pension rules 1972. But by the same
Order dated 22 June, 2014 another 24 colleagues were found fit and they were
allowed to continue in service beyond 30 years of service or 55 years of age
whichever is earlier. This Court is therefore of the view that if the
appellant/respondent had not suffered the injuries in the accident he would
have also been allowed to continue in service beyond 55 yrs of age or 30 yrs of
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service whichever is earlier as in the case of his colleagues. There is no doubt
loss of earning capacity in the present case. Moreover, this Court has already
allowed the MAC Appeal No. 468/2017 on 28.11.2019 stating that the
appellant/claimant had sustained permanent disability due to which he was
given compulsory retirement
21. As far as the disability certificate is concerned which is Exhibit 8 in the trial
court records, it is seen that the certificate has been obtained from the District
Disability Rehabilitation Centre, Tezpur. However, the CW-2/doctor has given
contradictory statements regarding the description of the injuries. The
Doctor/CW-2 could not assist the Tribunal regarding the percentage of disability
and how the disability will affect the normal bodily functions of the claimant. In
the case of Raj Kumar (Supra) the Supreme Court held that when the disability
certificate is given by a duly constituted medical board it may be accepted
subject to evidence regarding the genuineness of such certificate. This Court is
of the view that the disability certificate has not been proved in accordance with
law in the present case. In Raj Kumar, (supra), the Supreme Court held that;-
"Mere production of a disability certificate or discharge certificate will not be proof of the
extent of disability stated therein unless the doctor who treated the claimant or who
medically examined and assessed the extent of disability of the claimant, is tendered for
cross-examination with reference to the certificate. If the Tribunal is not satisfied with the
medical evidence produced by the claimant, it can constitute a Medical Board (from a
panel maintained by it in consultation with reputed local hospitals/medical colleges) and
refer the claimant to such Medical Board for assessment of the disability".
22. Upon going through the evidence, it is also observed that the claimant
appellant in his cross examination deposed that after the accident and during
his treatment he had been receiving his full salary and he did not have to pay
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anything and he also stated that he got reimbursement for expenditure in
private hospitals. The claimant is therefore not entitled to compensation for
medical expenses, attendant charges/special diet or conveyance charges. The
Tribunal was justified in not awarding compensation for medical expenses
during treatment.
23. Regarding the multiplier the age of the claimant/appellant at the time of
accident has to be taken, which is 45 years and therefore the multiplier should
be 15 and not 13.
24. In respect of the income, the salary which the claimant appellant was
receiving at the time of filing the claim petition and proved by the pay slip has
to be taken as the monthly income. The learned Tribunal further without making
any valid assessment and without any basis awarded Rs.39,00,000/- (thirty nine
lakhs) towards loss of future earning/permanent disability and the same is
hereby set aside.
25. The compensation amount awarded under pain and suffering and loss of
amenities in life is upheld.
26. With the above observations and modifications the case is remanded back
to the learned Member MACT Sonitpur, Tezpur, for taking fresh evidence
regarding the certificate of disability and thereafter assess the loss of future
earning by referring the claimant to a Medical Board in a Government Hospital
or by constituting a Medical Board if necessary for assessment of the disability.
27. The Registry shall refund the 50% of awarded amount deposited in the
Registry along with the statutory deposit to the Insurer/appellant in MAC Appeal
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251/2023 forthwith.
28. The parties shall appear before the learned Member MACT Sonitpur, Tezpur,
Assam on 24th September 2025. Thereafter, the learned Tribunal shall make all
efforts to dispose of the case as expeditiously as possible as the accident is of
2010.
29. With the above directions the Appeals stand disposed.
30. Registry to send back the Trial Court records immediately along with a copy
of this Order.
JUDGE
Comparing Assistant
