IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5546 of 2004 (O&M) Date of decision:07.10.2010 National Insurance Company Limited ....Appellant versus Madan Lal and others ...Respondents II. FAO No.5470 of 2004 (O&M) Madan Lal ....Appellant versus Satbir Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.Navin Kapur, Advocate, for the appellant in FAO No.5546 of 2004 and for respondent No.4 in FAO No.5470 of 2004. Mr. Sandeep Punchhi, Advocate, and Mr. Harpinder Singh, Advocate, for the appellant in FAO No.5470 of 2004 and for respondent No.1 in FAO No.5546 of 2004. Mr. Kunal Garg, AAG, Haryana. ---- 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) 1. The Insurance Company is in appeal against the determination of compensation for the claimant, who was a Conductor in FAO No.5546 of 2004 (O&M) - 2 - Haryana Roadways. The contention of the insurer is that he was a workman to whom there was a necessity for a compulsory insurance cover under Section 147 and, therefore, an injury that had occurred in the accident due to the negligent driving of the driver, the scale of compensation ought to have been only under the Workmen's Compensation Act and not under Section 166. 2. This submission, in my view, is erroneous and does take into account the legal effect of a provision such as Section 167 of the MV Act that gives an option to a workman, who is entitled to claim both under the MV Act and under the WC Act to apply to anyone forum. If he was not himself a tort-feasor and he had suffered an injury by the use of a motor vehicle, then a claim for compensation against the owner of the vehicle comes not merely in the capacity as a workman but in the capacity as the passenger in the vehicle whose driver had caused the accident. This distinction has a bearing, for, if a claim was possible only under the WC Act for a wrong done by the workman himself, then a resort to a proceeding under the MV Act may not be appropriate. The duty of the Tribunal would in such a situation would be to direct the claimant to approach the proper forum. In this case, the claimant was not a tort-feasor for the injury suffered in the accident by yet another workman of the employer, the claim petition was maintainable under the MV Act and, therefore, the scale of compensation under the MV Act was, therefore, perfectly justified. 3. As regards the claim of enhancement of compensation, the claimant has undergone hospitalization for a period of one month and he FAO No.5546 of 2004 (O&M) - 3 - has been provided compensation in the following manner:- 1. Compensation for pain and suffering Rs.10,000/- 2. Compensation for expenditure on medicines Rs.10,000/- and treatment. 3. Compensation for adverse effect on the earning Rs.94,000/- capacity of the petitioner due 30% permanent disability. 4. Compensation for expenses of conveyance, Rs.10,000/- attendants and special diet. 5. Compensation for encashable leave being the Rs.26,000/- petitioner on leave from 15.1.2002 to 3.7.2002 6. Compensation for loss of love and affection Rs.5,000/- and to meet unforeseen expenses in the hospital. ________________ Total Rs.1,55,000/- 4. The learned counsel contends that the compensation granted is inadequate and the Tribunal has not properly factored the several heads of claim. I am of the view that the compensation afforded to the claimant is even more than what is justified under the circumstances. He has had a fracture and has suffered a 30% disability which consists of reduction of range of movement for his injury in upper thigh. All the heads of compensation that have to be addressed namely, pain and suffering, expenditure for medicines, expenses for conveyance have been taken into consideration. The compensation for encashable leave and compensation for loss of love and affection have all been provided. These are rather strange heads of compensation, not admissible by law. Compensation for adverse effect in earning capacity due to 30% disability has assessed at Rs.94,000/-. In fact, there is no scope for granting compensation for loss of love and affection for a person, who is injured. There is again no basis for arriving at Rs.94,000/- for 30% permanent disability. The loss of earning capacity is what a disability could cause and it must depend on medical evidence and the evidence of FAO No.5546 of 2004 (O&M) - 4 - the workman himself. In this case, he was a Conductor and he was put in soft job and he had suffered no loss of income in the process. I am prepared to concede that a mere continuation in job will not be taken as a ground for refusing compensation and this Court itself has had an occasion to deal with the issue relating to compensation of injuries for an elaborate fashion in the decision in New India Assurance Company Limited Versus Smt. Santosh and others in FAO No.3432 of 2009, decided on 29.09.2010 and, therefore, Rs.94,000/- which the Court has granted could go for loss of earning capacity. The assessment of loss for disability must be attempted to be translated in terms of loss of earning capacity before affording compensation under this head. The amount awarded towards disability would include the loss of amenities for life and the reduction of his expectation of life. The compensation awarded is just and adequate and I find no reason to make any enhancement. The appeal filed for enhancement is dismissed and the appeal filed by the insurer questioning the liability is also dismissed. (K.KANNAN) JUDGE 07.10.2010 sanjeev