F.A.O No.3934 of 2003 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O No.3934 of 2003 Date of Decision. 27.10.2010 M/s United India Insurance Company through its Assistant Manager, Regional Office, Sector 17, Chandigarh ......Appellant Versus Darshan Singh son of Shri Jagir Singh resident of village Haripur, Sector 4, Tehsil and District Panchkula and another ......Respondents 2. FAO No.4830 of 2003 Darshan Singh son of Shri Jagir Singh resident of village Haripur, Sector 4, Tehsil and District Panchkula ....Appellant Versus Lok Raj Saini S/o Shri Lal Inderdev resident of village Sihan, Post Office Nagal District Mandi (Himachal Pradesh) and another ....Respondents Present: Mr. Vikrant Hooda, Advocate for the appellant. None for the respondents. 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) 1. Both the appeals arise out of the same accident, FAO No.3934 is at the instance of the insurance company and FAO No.4830 is by the claimants seeking for enhancement. The claim arose out of injury suffered in a motor accident and it had been filed under Section 163-A of the Motor Vehicles Act. Although the F.A.O No.3934 of 2003 -2- insurance company pleaded a case of contributory negligence, it was not required to be considered by the Tribunal in view of the fact that the claim had been pursued under Section 163-A of the Motor Vehicles Act and a strict liability claim brought through the said Section. 2. While awarding compensation, the Tribunal had awarded Rs.25,000/- for pain and suffering and for loss of amenities of life, Rs.5,000/- towards medical expenses and Rs.25,000/- towards physical disability and loss of income. This award is attacked by the counsel appearing for the insurance company contending that if there was a claim under Section 163-A of the Motor Vehicles Act, as per Clause 4 of Schedule II, maximum that should be awarded for pain and suffering for grievous injury shall be only Rs.5,000/- and for medical expenses either the actual expenses or an amount not exceeding Rs.15,000/-. The provision for Rs.25,000/- for grievous injuries made cannot, therefore, be sustained. I find the objection to be credible and reduce the claim for pain and suffering for grievous injuries at Rs.5,000/- instead of Rs.25,000/- awarded by the Tribunal. The amount awarded Rs.5,000/- for medical expenses is retained and as regards the claim towards physical disability, the assessment of loss must be done in the manner referred to under the Workmen's Compensation Act by first taking the percentage of loss of earning power for the disability incurred and applying a suitable multiplier commensurate with the age and income of the injured. The matter of determination of compensation for an injury under Section 163-A of the Motor Vehicles Act shall be first to ascertain the F.A.O No.3934 of 2003 -3- percentage of loss of earning capacity that has immediate bearing to the percentage of disability. The Tribunal, therefore, shall first consider as to how the disability impacts the earning capacity. In this case, PW-2 Dr. Umesh Modi has assessed that the claimant had suffered a fracture of fibula and dislocation of the left hip and that he had suffered a 25% disability. The doctor had also given evidence that the disability suffered by the claimant cannot be reduced with a passage of time and he has affirmed that the percentage of disability has been made on the scale of assessment provided under the guidance of the Government of Haryana. He has stated that the claimant was capable of doing light work. The claimant himself given evidence to the effect that he has difficulties in sitting and there is limping while walking and that he could not sit cross legged. These disabilities are affirmed by the doctor also. The claimant has also stated that he is unable to perform the duties of a driver as earlier prior to the accident. His own inability to drive subsequent to the accident and the injury suffered by him has not been cross- examined at all and there is only a wild suggestion that he was deposing falsely to get a fat compensation. I would, therefore, take the extent of disability to also result in a similar percentage of loss of earning capaicty. While the claimant's statement was that he was earning Rs.5,000/- per month, the suggestion was that his owner- Lekh Raj used to pay only Rs.4,000/- as salary. I will assume take the annual income to be Rs.40,000/- and take the loss of earning capacity to the extent 25% at Rs.10,000/-. He was aged 28 years and the appropriate multiplier corresponding to the age is 18. The F.A.O No.3934 of 2003 -4- amount payable will be Rs.1,80,000/- towards loss of earning capacity. The total amount, therefore, that will become payable would be Rs.1,90,000/- and the increased amount of compensation shall attract interest @6% from the date of petition till the date of payment. 3. The award of the Tribunal shall stand modified and the appeals are disposed of in terms of the award. (K. KANNAN) JUDGE October 27, 2010 Pankaj*