The assessment of loss of earning capacity must consider occupation and disability rather than rely solely on percentage disability, resulting in a modified award reflecting an 80% loss of earning capacity.

JUDGMENT :

Parth Prateem Sahu, J.

1. Appellant-insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 18.10.2024 passed by Learned Motor Accident Claims Tribunal, Kabirdham, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 72/2023, whereby learned Claims Tribunal allowed the application filed by applicant-claimant therein under Section 166 of the Act, 1988 in part and awarded total sum of Rs. 33,04,000/- as compensation.

2. Facts of the case relevant for disposal of this appeal are that on 31.05.2023 at about 07:30 pm in the evening, Ramkumar Patel after stopping his motorcycle bearing number CG09 JG 3802 was standing on side of the road in front of tahsil office, at that relevant time, a truck bearing number CG 04 NK 1385 (hereinafter referred to as “offending truck”) driven by non-applicant No. 1 rashly and negligently dashed him and caused accident. In accident, Ramkumar Patel suffered grievous injuries on his person, his palm of right hand was cut off and his left leg got severally injured. He was taken to District Hospital, Bodla, from where he was referred to Roopjeevan Hospital, Kawardha and thereafter looking to grievous injuries he was admitted to BTRC, Multispeciality Hospital, Bilaspur, where his left leg was amputated. Accident was reported to police station Bodla, against non-applicant No. 1- driver, based on which Crime No. 147/2023 was registered for alleged offences under Sections 279, 337, 338 of IPC.

3. Respondent No. 1/ applicant-claimant filed an application under Section 166 of the Act of 1988 seeking compensation of Rs. 33,04,000/- on the grounds pleaded therein.

4. Respondents No. 2 & 3/ Non-applicants No. 1 & 2 -driver and owner of the offending truck filed joint reply to the application, denying the facts pleaded therein. It was further pleaded that a false and frivolous case has been lodged against non-applicant No. 1, no accident occurred by the offending truck. On the date of accident, non-applicant No. 1 was possessing valid and effective driving licence, and the offending vehicle was insured by non- applicant No. 3.

5. Appellant/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident non-applicant No. 1 was driving the offending truck in breach of policy conditions, he was not possessed with valid and effective driving licence. There were no valid permit, fitness certificate of the offending vehicle. The accident occurred between two vehicles, as such there was contributory negligence on the part of driver of motorcycle also. The driver, owner and insurer of the motorcycle on which the applicant was riding were not made party to the proceedings, thus, the application is not maintainable.

6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that applicant -Ramkumar Patel suffered grievous injuries in the accident arising out of rash and negligent driving of offending truck driven by non-applicant No. 1. Breach of conditions of insurance policy, contributory negligence and non-joinder of party were not found to be proved. Tribunal calculated the amount of compensation and awarded Rs. 21,15,894/- as total compensation with interest @ 6% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy