M/S. Bajaj Allianz General Insurance Co. Ltd., BBSR And Others vs Akshaya Kumar Sahoo & Another

G. Satapathy, J

These two appeals U/S. 173(1) of the Motor Vehicles Act, 1988 (in short, the "Act"), assail the impugned judgment dated 17.01.2025 passed in MAC Case No.697 of 2016 by which the learned 3rd Motor Accident Claim Tribunal, Cuttack (in short, "the Tribunal") directed M/s. Bajaj Allianz General Insurance Company Ltd. (in short, "the insurer") to pay a sum of Rs.20,70,271/- only to one Akshaya Kumar Sahoo (in short, "the claimant") for the injuries sustained by him in a motor vehicular accident.

The aforesaid award carries further simple interest @ 7% per annum w.e.f. date of filing of application i.e. 20.10.2016 till its realization and the insurer was directed to pay the compensation within two months of passing of the aforesaid award, failing which to pay penal interest @ 12% per annum.

Briefly stated, the claimant was working as a helper in the Truck bearing Regd. No. OD-07-A-8393(hereinafter referred to as the "offending vehicle") and on 09.04.2016 at about 12.30PM, the offending Truck met with an accident by dashing another Truck from behind, as a result the claimant sustained multiple compound fractures on his left leg femur, left lower limb, fracture of left ankle joint and grievous wounds on left leg, severe head injury and facial injuries together with multiple injuries all over his body. According to the claimant, the accident occurred due to rash and negligent driving of the driver of the offending Truck and he was treated at different hospitals at Berhampur and Bhubaneswar for the injuries sustained by him and despite treatment, he became permanent disabled and lost his total earning capacity and the accident was reported to Rambha Police, resulting in registration of Rambha PS Case No. 44 of 2016 which culminated in submission of charge sheet. On the aforesaid averments, the claimant approached the Tribunal U/S. 166 of the Act for grant of compensation of Rs.33,50,000/- by impleading the owner and insurer of the offending vehicle.

2.1 In response to the claim, the owner of the offending Truck appeared and filed his written statement admitting the accident, but questioning its maintainability against him. The owner of the offending Truck also admitted the salary of the claimant @ Rs.12,000/- per month and inter alia further pleaded that since the vehicle was duly insured with all vehicular documents, the insurer is contractually liable to indemnify him against the award passed in this claim.

2.2. On the other hand, the insurer appeared and contested the claim by filing its written statement denying its liability to pay compensation to the claimant and inter alia averring the claim to be not maintainable by praying to dismiss the claim.

On the rival pleadings of the parties, the learned Tribunal struck with five issues and allowed the parties to lead evidence. Accordingly, the claimant examined himself as PW1 and proved police paper, discharge certificate, his disability certificate and other medical documents under Exts. 1 to 10 together with identifying five X-ray plates under MO-I to MO-V as against no evidence whatsoever by the insurer, but the owner of the offending vehicle examined himself as OPW1. After appreciating the evidence upon hearing the parties, the learned Tribunal by the impugned judgment granted compensation to the claimant indicated supra. Being aggrieved with the impugned judgment, the claimant and insurer have filed two separate appeals challenging the quantum of compensation.

Heard, Mr.Anupam Dash, learned counsel for the insurer and Mr.Karunakar Das, learned counsel for the claimant. Besides, Mr.Khitish Kumar Jena, learned counsel for the owner of the offending vehicle had concluded his argument on 06.02.2026, but he was not present when the matter was heard finally on 12.05.2026. In addition, the insurer and claimant have filed their short written notes of submissions in support of their claim.

After having considered the rival submissions upon perusal of record, both the insurer and claimant challenge the quantum of compensation mainly on the ground of extent of disability. The insurer has urged to take the disability of the claimant either at 15% or at best 30% for calculating loss of future earnings, whereas the claimant has urged to take the disability at 100% for computing loss of future earnings. In addition, the claimant also seriously challenges the finding of the learned Tribunal with regard to assessment of his income at Rs.7,000/-instead of Rs.12,000/- per month. It, therefore, clear that these two appeals primarily urges this Court to reevaluate the income and disability of the claimant for computing loss of future earnings. On coming to the challenge of the claimant as to determination of his income, this Court does not find any difficulty to ascertain as to how the learned tribunal assessed the monthly income of the claimant which is in fact assessed at paragraph no.11.4 of the impugned judgment and it is found therein that the income of the claimant is assessed notionally at Rs.7000/- per month, but the owner of the truck in which the claimant was stated to be working as helper, not only in his written statement pleads, but also in his evidence testified before the tribunal that the claimant was the helper of the truck at the relevant time of the accident and he being the employer was paying Rs.12,000/- per month to him and fooding allowance @ 50 per day, but no documentary evidence could be produced by the claimant to evidence his monthly income at Rs.12,000/- per month, however, if the minimum wage for the year 2016 is taken into consideration and the fooding allowance to the claimant as stated by the OPW.1 is added on the face of absence of any concrete evidence, the notional income of the claimant as taken by the learned tribunal at Rs.7,000/- per month appears to be correct one and needs no interference.

In a case of injuries, the disability of the injured plays a significant role in assessing/computing the compensation for such injured of motor vehicular accident, however, the law laid down by the Apex Court in Raj Kumar vrs. Ajay Kumar; (2011) 1 SCC 343, makes it very clear that all injuries or permanent disability arising from the injury/injuries do not always result in loss of earning capacity and 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 of said person except in few cases where the evidence justifies the same and the same permanent disability may result in different percentage of loss of earning capacity in different person depending upon the nature of profession, occupation or job, age, education and other factors. It is also stated with certainty that ascertainment of loss of earning capacity by analyzing the permanent disability is a complex issue and requires evidence in this regard, but the evidence of expert in such cases would be very useful. It is plain and simple that the same extent of permanent disability in different persons may result different loss of earning capacity. Thus, it is very much essential or required to be ascertained what activity/activities the claimant could not carry out due to the permanent disability and what activity he can still perform despite the permanent disability and thereafter, applying the same to the avocation/profession or nature of work performed by the injured before the accident, it is to be determined whether the claimant is totally disabled from earning any kind of livelihood or whether in spite of permanent disability, the claimant could still effectively carry out some activities and functions, which he was earlier carrying on or whether he was prevented or restricted from discharging his previous activities and function, but could still carry out some other lesser work or activities or function so that he can continue to earn his livelihood by other profession. Besides, it is to be determined that the permanent disability is with regard to the whole of body or with reference to any specific/particular limb or part of body affecting his physical function of the entire body which is considered as functional disability and as to how such functional disability has affected his earning.

Moving to the case at hand, it appears that the claimant has not examined any doctor to state that as to how the permanent disability affects his functioning or as to how it has resulted in his inability to perform his physical work nor is there any evidence as how the disability of the claimant has restricted or affected his functioning. It is not in dispute that the claimant has been issued with a disability certificate under Ext.8 which reveals 60% of permanent disability in relation to both leg of the claimant, but it is not the same disability with reference to the whole of the body and it has not clarified in evidence as to the extent of disability of the whole body of the claimant. On the other hand, discharge summary certificate issued to the claimant under Ext.7 reveals that the claimant was diagnosed with "Polytrauma with fracture femur with fracture trochanter left lower limb; grade IIIB compound fracture, fracture and left Talonaviular joint". Further the discharge summery also reveals that the claimant had undergone surgery followed by plastic surgery and he was treated as indoor patient w.e.f.09.04.2016 till 20.06.2016, but the disability certificate of the claimant discloses him to have been diagnosed for "Post Traumatic stiffness of left knee". Further, it could not be disputed that the claimant was working as a helper in the truck and he had come to the tribunal to testify in this case, although he claims to be confined to bed and unable to move and could not be able to keep his left foot on the ground due to severe stiffness on right leg muscle. Be that at it may, the evidence of the claimant does not clarify as to how he is not able to perform his daily work or his profession as a helper. No doubt the claimant claims himself to be cent percent disabled, but the tribunal has only assessed the compensation by taking the disability of the claimant at 60% without analyzing or opining that such disability of the claimant is his functional disability and such functional disability is the same extent of disability for loss of earnings capacity.

The insurer on the other hand has relied upon the decision in Aliveli Mallareddy Vrs. Surthani Linganna @ Chinna Linganna & Others in Civil Appeal No.--- of 2025 (Arising out of SLP(C)No.19636 of 2024) disposed of on 07.04.2025, wherein the Apex Court in para 10 has held thus:-

"10. Xx xx xx. xx the Almanco Manual would suggest that the disability when not assessed to the whole body, the disability to the lower limb will be 1/5 and upper limb be ¼ of the disability assessed".

Similarly, the decision as relied on by the insurer in Uttar Pradesh Road Transport Corporation Vrs. Vibhor Fialok & Another in Civil Appeal No(s).1337-1338 of 2019 [Arising out of SLP(C) Nos.2738-2739 of 2019], the Apex Court in Paragraph 13 has held as under:-

"13. Xx xx xx. Thus, this court will have to undertake the exercise of assessing the whole body disability and as per almanco manual, the whole body disability when compared to the particular limb disability would be 1/4th in respect of that of the lower limb. xx xx xx xx".

By relying the aforesaid two decisions, the insurer claims that the extent of claimant's disability under Ext.8 is not the exact extent of the disability of the claimant for loss of earnings and the claimant's disability for loss of earnings can at best be taken at 30% of the whole body, but the claimant in the relied on case in Aliveli Mallareddy (supra) stated to have sustained fracture of patella and right temporal bone; whereas the claimant in Vibhor Fialok(supra) had sustained open grade III, B/L femur condoyle with fracture SOF with fracture proximal fibula with ciley Pest (RT) side and other multiple injuries, however, the claimant herein had sustained fracture of femur with fracture of trochanter left lower limb; grade IIIB compound fracture, fracture and left Talonaviular joint and therefore, the claimant in relied on case cannot be equated with the claimant of the present case inasmuch as the fracture of trochanter is a facture involving the thigh bone, which would definitely affect the functioning of a person like the claimant-appellant in this case who was working as a helper in the truck and taking into account the avocation of the appellant-claimant and other factors into consideration, this Court is of the considered view that the disability of the claimant of both legs can be taken as the same disability for the whole of body since with the fracture of trochanter and other compound fracture and fixation of nail/implant as revealed from the discharge summery under Ext.7, the claimant cannot certainly perform his earlier avocation of helper in the truck, but he still can do some work and therefore taking his functional disability at 60%, this Court in the peculiar facts and evidence on record takes the disability of the claimant at 50% for computing loss of future earnings.

In ascertaining the loss of future earnings, this Court has already concurred the finding of learned tribunal that the claimant was notionally earnings at Rs.7000/- per month and thereby, his net annual income would be Rs.84,000/-, but since the appellant was below 40 years and a self-employed, 40% to the aforesaid amount is to be added towards future prospects and therefore, net annual income of the claimant would be calculated at Rs.1,17,600/-(Rs.84,000/- + Rs. 33,600/- which is 40% of Rs.84,000/-) and applying 15 multiplier to it, the net loss of future earnings of the claimant would be calculated at Rs.1,17,600/- X 15 X 50%= Rs.8,82,000/-.

No doubt, the learned tribunal has awarded a sum of Rs.1,00,000/- towards future medical treatment, but taking into account the present day market index and the cost of medical treatment, this Court considers that the appellant is entitled to Rs.3,00,000/- towards future treatment. For the sum as awarded by the learned tribunal towards Transportation & Special Diet to the claimant at Rs.1,00,000/-, it appears to be genuine one so also the expenses relating to the treatment, hospitalization at Rs.2,83,871/- inasmuch as, even though the claimant has claimed Rs.8,00,000/- towards his treatment, but has not able to produce any document to that effect, whereas he could able to produce evidence with regard to incurring expenditure for Rs.2,83,871.62/- vide Ext.10-series. The learned tribunal has awarded a sum of Rs.28,000/- towards attendant charges for the period of treatment and hospitalization of the claimant and in the circumstances, the same amount appears to be genuine and correct one. In view of the discussion made hereinabove and taking into account the sum totality of the evidence on record, this Court considers that the claimant is entitled to compensation in the following scale as enlisted under:-

Sl No

Heads

Amount

(i)

Expenses relating to treatment, hospitalization

Rs.2,83,871/-

(ii)

Transportation & special diet

Rs.1,00,000/-

(iii)

Attendant charges for the Period of hospitalization

Rs.28,000/-

(iv)

Loss of future earning

Rs.8,82,000/-

(v)

Pain, suffering loss of amenities

Rs.5,00,000/-

(vii)

Future medical treatment

Rs.3,00,000/-

Total Compensation

Rs.20,93,871/-

Further, the imposition of penal interest @ 12% per annum being not in consonance with the law is required to be set aside and is accordingly set aside.

In the result, these two appeals are accordingly disposed of and the impugned judgment is modified to the extent indicated above with direction to the insurer to pay a sum of Rs.20,93,871/- (Rupees Twenty lakh ninety-three thousand eight hundred seventy-one) only together with interest @ 7% per annum w.e.f. the date of filing of the claim i.e. from 20.10.2016 till its actual realization within eight weeks hence. On deposit of the modified compensation amount, the same shall be disbursed to the claimants proportionately in terms of the award passed by the learned tribunal and the security deposit together with accrued interest thereon be refunded back to the insurance company on proper proof of deposit of the modified compensation amount before the tribunal.