IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.56-CI of 2009 in/and FAO No.1454 of 2009 Date of decision:26.07.2010 United India Insurance Company Limited ....Appellant versus Badri Parshad @ Badri Nath Tiwari and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Gopal Mittal, Advocate, for the appellant. None for the respondents. ---- 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 for a claim made by a pillion rider in a motorcycle. The driver of the motorcycle was also the owner and he died in the accident that was on account of a collision with yet another vehicle whose identity was not known. The application had been filed for compensation for injuries sustained by the pillion rider. 2. The contention of the learned counsel is that the insured's son was made as a party after the death and the claim against the insurer cannot survive. If there was a valid comprehensive cover, a pillion rider will be taken to be “any person” involved in the accident and the insurer will still be liable. If the accident was the result of a collision with yet FAO No.1454 of 2009(O&M) - 2 - another vehicle, it may become possible for the insurer in an independent action to prove the same and claim recovery. As far as the claimant is concerned, the maintainability of the petition cannot be doubted and the award in so far as it determines the liability at Rs.85,000/- with interest on a scale permissible under schedule-II is sustained. The appeal by the Insurance Company is dismissed but however with liberty to the insurer to initiate appropriate action if so advised to proceed against yet another vehicle alleged to have been involved in the accident. This shall not be taken as a conclusive decision as regards the person, who is not before me namely the other vehicle which is said to have been responsible for the accident. The appeal is dismissed with the above observations. 3. As regards the quantum, the learned counsel for the Insurance Company states that the defence under Section 170 had been permitted. The Tribunal while assessing the claim under Section 163-A has allowed for a compensation of Rs.75,000/- for medical expenses when it has to be capped to Rs.15,000/- for a claim under the said provision. Further a permanent disability which was assessed at 12%, with no medical evidence available which ought to have been translated the disability in terms of loss of earning capacity for arriving at the necessary amount of compensation under the Workmen's Compensation Act. It is in evidence that on account of the injuries suffered by him, there was restricted range movement of the right knee. He was a labourer of 45 years and for a labourer who does manual work, restriction of movement of the knee ought to have resulted in substantial loss of income. Although definite material is not available before me as FAO No.1454 of 2009 (O&M) - 3 - to the nature of loss that he has suffered in relation to his income, I would proximate his loss of earning capacity to about 25%. The labourer was reported to be earning Rs.2,400/- and the appropriate calculation as per schedule mentioned in the Workmen's Compensation Act by applying the formula for a person who was aged 45, shall be Rs.50,832/- (2400 x 50/100 x 169.44 x 25/100). The Act provides for a provision for pain and sufferings for grievous injury at Rs.5,000/- and I am inclined to award the same. The total amount which could therefore be claimed shall fall under the following heads:(i) loss of earning capacity;(ii) damages for pain and sufferings; and (iii) medical expenses and their total shall be Rs.70,832/-. The amount of compensation already arrived at by the Tribunal shall stand modified and the appeal shall be partly allowed to restricted to the amount mentioned above. The cross appeal for enhancement is consequently dismissed. (K.KANNAN) JUDGE 26.07.2010 sanjeev