FAO No.3169 of 2001 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3169 of 2001 Date of Decision. 07.10.2010 United India Insurance Company Limited, having its regional office at Sector 17, Chandigarh through its Assitt. Manager ......Appellants Versus Narinder Kumar son of Shri Kisan Lal, S.D.C., P.W.D., (PH) Debwali, Sirsa, resident of Bhagat Singh Colony, Sirsa Barnala Road, Sirsa and others ....Respondents Present: Mr. Sanjiv Pabbi, Advocate for the appellants. Mr. G.S. Bawa, Advocate for the respondents-claimants. Mr. Kunal Garg, AAG, Haryana. 2. FAO No.883 of 2002 Narinder Kumar son of Shri Kisan Lal, S.D.C., P.W.D., (PH) Debwali, Sirsa, resident of Bhagat Singh Colony, Sirsa Barnala Road, Sirsa ......Appellants Versus State of Haryana through Collector, Sirsa and others ....Respondents Present: Mr. G.S. Bawa, Advocate for the appellant. Mr. Kunal Garg, AAG, Haryana. Mr. Sanjiv Pabbi, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) FAO No.3169 of 2001 -2- 1. The matter in appeal filed at the instance of the insurance company is that the insured's vehicle had been admittedly requisitioned for election under SGPC Committee by the State and therefore, the accident that had taken place during the time when the vehicle was in exclusive control the State cannot leave a trail of cause of action for the claimants to pursue a remedy against the insurer. The right of enforcement of any award shall be done only against the State, which had the control over the vehicle. This aspect of liability of insurer where State requisitioned the vehicle has been dealt with by the Hon'ble Supreme Court in Rajashthan State Road Transport Corporation Vs. Kailash Nath Kothari and others 1997 ACJ 1148 and National Insurance Co. Ltd. Vs. Deepa Devi and others 2008 ACJ 705. The accident is a admitted fact and the requisitioning of the vehicle at the relevant time is also admitted. The Tribunal, however, said that if insurer's liability is governed by the terms of the policy then it will be immaterial that the State requisitioned the vehicle. There is no term of policy that can make the insurer liable to a State requisitioned vehicle. What applies to private individuals by transfer and through the benefit of Section 157 of the Motor Vehicles Act cannot avail to the Government, which takes control of vehicles under specific legislation for that purpose. The award making the insurer liable is, therefore, vacated and the liability is cast on the State Government represented through respondents Nos.1 and 2 in the appeal. The appeal in FAO No.3169 of 2001 is allowed to the above extent. 2. In the appeal seeking for enhancement of compensation, FAO No.3169 of 2001 -3- the claimant had extensive injuries that were originally assessed at 30% disability and later he suffered an amputation and the doctor had given evidence to the effect that it worked out 80% disability for amputation at the knee. In amputation above knee, even the Workmen's Compensation Act provides for loss of earning capacity at 80%. It is contended that notwithstanding the amputation, he continued in service and therefore, there had been no loss of earning. This is not a correct understanding of law since the issue of an entitlement for loss of earning capacity for a person, who had suffered an amputation of leg must be approached from the point of view of whether he would be able to secure a fresh employment or how his own saleability in the market gets impacted by the disability. This Court has dealt with the issue at great length in the judgment in New India Assurance Company Ltd. Vs. Smt. Santosh and others in FAO No.3432 of 2009 dated 29.09.2010 dealing with all the relevant case law in Indian and foreign jurisdictions. If his income was Rs.5022/- and if he was aged 50 plus, the appropriate multiplier would be 11, the amount would be Rs.6,62,904/-. Since the disability is upto 80%, the amount that will become payable would be 80% of the same, which will work out to Rs.5,30,323/-, which is round off to Rs.5,30,500/-. This will be in addition to the actual expenses that he has incurred towards medical expense, conveyance charges and special diet. I will not provide to him loss of salary since I have already taken into account the said fact while determining the loss of earning capacity. This will mean additional amount of Rs.1,90,000/-. The amount that would become payable FAO No.3169 of 2001 -4- would be Rs.7,20,500/-. The amount in excess of what has been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of the payment. The liability shall be borne by the Government represented through respondent Nos.1 and 2. If any amount has been recovered by the claimants from the insurance company, it will be open to the insurance company to seek for recovery against the Government in the very same case before the Tribunal through execution. 3. The appeal filed by the claimants for enhancement are allowed to the above extent. (K. KANNAN) JUDGE October 07, 2010 Pankaj*