Madhya Pradesh High Court
Cholamandalam Ms Gen. Ins. Co. Ltd. vs Jitendra Chaturvedi on 15 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1 MA-1465-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 15 th OF MAY, 2024
MISC. APPEAL No. 4899 of 2019
BETWEEN:-
JITENDRA CHATURVEDI S/O LATE LOKMANI
CHATURVEDI, AGED ABOUT 45 YEARS, OCCUPATION:
TH. NATURAL GAURDAIN AND BROTHER RAVI
CHATURVEDI E-12-13 FORTUNE SHAIL PARISAR
AHMADPUR HOSHANGABAD ROAD, DISTRICT BHOPAL
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI R.P.MISHRA - ADVOCATE)
AND
1. SUNIL KAWDE S/O RAMSINGH KAWDE GRAM
NAGPUR KALA TEH. ITARSI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
2. DALCHAND PATEL S/O RAMDAS PATEL NEAR
TALAB MOHALLA TEH. ITARSI DISTT.
HOSHNGABAD (MADHYA PRADESH)
3. THR. REGIONAL MANAGER THE CHOLA
MANDALAM MS GEN. INSURANCE CO. LTD.
VIJAY NAGAR A.B. ROAD DISTT. INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS NO.1 & 2 BY NONE)
(RESPONDENT NO.3 BY SHRI T.S.LAMBA - ADVOCATE)
MISC. APPEAL No. 1465 of 2017
BETWEEN:-
CHOLAMANDALAM MS GEN. INS. CO. LTD. REGIONAL
OFFICE AT VIJAY NAGAR, AB ROAD INDORE (MADHYA
PRADESH)
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 10-06-2024
17:45:04
2 MA-1465-2017
.....APPELLANT
(BY SHRI T.S.LAMBA - ADVOCATE )
AND
1. JITENDRA CHATURVEDI S/O LATE LOKMANI
CHATURVEDI THROUG LEGAL GUARDIAN AND
BROTHER RAVI CHATURVEDI, AGED ABOUT 45
YE A R S , E 12-13 FORTUNE SHEEL PARISAR
AHMADPUR HOSANGABAD ROAD BHOPAL
(MADHYA PRADESH)
2. SUNIL KAWDE S/O RAMSINGH KAWDE NAGPUR
KALAN, TEH. ITARSI, DISTRICT HOSHANGABAD
(MADHYA PRADESH)
3. DALCHAND PATEL S/O RAMDAS PATEL NEAR
TALAB MOHALLA, TEH. ITARSI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI R.P.MISHRA - ADVOCATE)
(RESPONDENTS NO.1 & 2 BY NONE)
These appeals coming on for hearing this day, th e court passed the
following:
ORDER
Since owner and driver of the offending vehicle are absent in above cases
and liability to pay compensation has been fixed on the Insurance Company,
therefore, absence of owner and driver is immaterial
2. Considered I.A.No.11312/2019 which is an application for
condonation of delay filed in claimant's appeal being M.A.No.4899/2019. It is
stated that there is delay of 825 days. For the reasons stated in the application,
it appears that there exist sufficient cause for condonation of delay.
Accordingly, I.A.No.11312/2019 is allowed. Delay is condoned.
3. Heard M.A.No.4899/2019. The appeal is admitted for hearing.
The Misc.Appeal No.1465/2017 has already been admitted for final hearing
28.6.2017. With the consent of learned counsel for the parties the matters are
3 MA-1465-2017
finally heard and are being decided as below.
4. Both these appeals are filed by the rival parties (claimant and
Insurance Company) being aggrieved by the award dated 07.3.2017 passed by
Member, 11th Motor Accidents Claims Tribunal, Bhopal in MCC No.731/2015
[Jitendra Chaturvedi Vs. Sunil Kawde and others] whereby the Tribunal has
awarded compensation of Rs.7,79,960/- to the claimants on account of medical
treatment, mental pain & suffering, special diet, medical expenses, permanent
disability of 5% although as per permanent disability certificate it was 38%.
5. Against the impugned award the claimants has filed an appeal
seeking enhancement of Rs.3 lacs by paying court fee of Rs.7500/- on the
ground that permanent disability has been taken on lower side ignoring the
permanent disability certificate (Exhibit-P/38). Whereas, the Insurance
Company has filed appeal for reduction of amount of compensation on the
ground that although the Tribunal in paragraph 26 of the impugned award has
held that the claimant in paragraphs 34 & 35 of his statements has agreed that
his income has not been reduced as earlier it was Rs.11 lacs per annum but still
it awarded compensation of Rs.7,15,000/- for loss of income as per paragraph
53 of the award.
6. Heard learned counsel for the parties and perused the record of
the Tribunal. First the appeal filed by the Insurance Company is taken up. The
Insurance Company has relied on the decision of Hon'ble Supreme Court in the
case of Rajkumar Vs. Ajay Kumar and another, (2011) 1 SCC 343 wherein
in paragraphs 10, 11 & 12 it has been held as under:-
" 9. The percentage of permanent disability is expressed by the doctors
with reference to the whole body, or more often than not, with reference to a
4 MA-1465-2017
particular limb. When a disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower limb, it is not the same
as 45% permanent disability with reference to the whole body. The extent of
disability of a limb (or part of the body) expressed in terms of a percentage of
the total functions of that limb, obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% permanent disability of the right
hand and 80% permanent disability of left leg, it does not mean that the extent
of permanent disability with reference to the whole body is 140% (that is 80%
plus 60%). If different parts of the body have suffered different percentages of
disabilities, the sum total thereof expressed in terms of the permanent disability
with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss of future
earnings 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. In most of the cases, the percentage of economic loss, that
is, the percentage of loss of earning capacity, arising from a permanent
disability will be different from the percentage of permanent disability. Some
Tribunals wrongly assume that in all cases, a particular extent (percentage) of
permanent disability would result in a corresponding loss of earning capacity,
and consequently, if the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future earning capacity. In most of
the cases, equating the extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in award of either too low
or too high a compensation.
5 MA-1465-2017
11. What requires to be assessed by the Tribunal is the effect of the
permanent disability on the earning capacity of the injured; and after assessing
the loss of earning capacity in terms of a percentage of the income, it has to be
quantified in terms of money, to arrive at the future loss of earnings (by
applying the standard multiplier method used to determine loss of dependency).
We may however note that in some cases, on appreciation of evidence and
assessment, the Tribunal may find that the percentage of loss of earning
capacity as a result of the permanent disability, is approximately the same as the
percentage of permanent disability in which case, of course, the Tribunal will
adopt the said percentage for determination of compensation. (See for example,
the decisions of this Court in Arvind Kumar Mishra v. New India Assurance
Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298]
and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010)
3 SCC (Cri) 1285 : (2010) 8 Scale 567].
7. In the light of aforesaid judgment of Hon'ble Supreme Court in the
case of Rajkumar (supra) it is seen that some reduction can be made because
accident took place on 02.4.2015 and award has been passed on 07.3.2017.
Even assuming and considering the statement of claimant himself that his
income has remained as it is, before and after accident. But inflation factor is
always to be considered, therefore, interference is needed in paragraph 53 of the
award and loss of earning that has been calculated at Rs.7,15,000/- is taken as
loss of earning. Therefore, making some guess work this amount of
Rs.7,15,000/- is reduced to Rs.3,50,000/-. But regarding paragraph 57 of the
award it is seen that for mental & physical pain and special diet only
Rs.50,000/- has been awarded, therefore, in the considered view of this Court
6 MA-1465-2017
this amount needs to be enhanced and it is found to be on lower side. Hence, it
is enhanced by Rs.1,50,000/-. It is also seen that no amount has been awarded
for future treatment. Accordingly, amount of Rs.1.5 lacs is enhanced under the
head of future treatment.
8. Thus, from the aforesaid it is clear that reduction in amount of
compensation in view of appeal preferred by Insurance Company is
Rs.3,65,000/- and the total enhancement as per appeal of claimants is Rs.3 lacs.
Thereby making total reduction of Rs.65,000/- in the amount of compensation
awarded by the Tribunal vide impugned award. Other terms and conditions of
award passed by Tribunal shall remain intact.
9. In the result, both the above appeals are partly allowed.
(AVANINDRA KUMAR SINGH)
JUDGE
RM
