IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.160 of 1999 Date of decision:28.07.2010 The New India Assurance Company Limited ....Appellant versus Vikas Kumar Goel and others ...Respondents II. FAO No.1352 of 2000 Vikas Kumar Goel ....Appellant versus Manjeet Singh and others ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. V.Ramswroop, Advocate, for the appellant in FAO No.160 of 1999 and for respondent No.3 in FAO No.1352 of 2000. Mr. Raj Mohan Singh, Advocate, for the appellant in FAO No.1352 of 2000. Mr. Aneet Kohli, Advocate, for respondent No.1 in FAO No.160 of 1999. ---- 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. 1. Both the cases are connected and are disposed of by common order. 2. The appeal is by the Insurance Company questioning the quantum and liability. There is also an application under Section 170 of FAO No.160 of 1999 - 2 - the Motor Vehicles Act in CM No.1397-CII of 1999. At the trial, I have noticed that the owner and the driver remained ex parte and permission had been taken by the Insurance Company to summon them as its own witness. The Court had passed an order granting such permission on 25.07.1998. The case had been posted on subsequent date on 29.08.1998 when also the witnesses were not produced. On 07.09.1998, when the case was posted, again no evidence was tendered and there was merely a plea for adjournment. The trial Court rejected that plea and proceeded it to issue the award. At no point before the trial Court was any request made or suggestion given that there was any form of collusion between the claimants and the driver and the owner of the offending vehicle. The permission cannot be sought for the first time before this Court under Section 170. The permission sought for is rejected. 3. There is no legal ground urged in the appeal by the Insurance Company for a reappraisal. Although the application was mentioned to have been filed under Section 163-A, the Tribunal examined the case under Section 166, found the negligence to have been established by the evidence of the claimants and by the fact that there was no contra evidence offered on the side of the respondents, held that it was only on account of the negligence of the insured that the accident had occurred. As regards the negligence therefore there was sufficient evidence. The challenge to a finding regarding negligence is not a ground which is available for the insurer. 4. Even as regards the quantum since the case has been considered under Section 166 on its finding regarding the negligence, FAO No.160 of 1999 -3 - there is no scope for the Insurance Company to urge that the assessment on quantum of compensation is not correct. The Insurance Company cannot maintain the case on the issue of quantum in the appeal without an express permission granted by the Tribunal itself for contesting the case on all grounds. I have examined the trial Court's records and the Tribunal has taken note of the fact of serious injuries which the claimant had suffered and borne out through the medical slips and x-rays and the evidence of the doctor. The doctor had given a certificate to the effect that the claimant had suffered 60% permanent disability in a case of united fracture femur right side with interlocking nail with shortening right lower limb 1/2” with stiff right hip joint, right knee joint with malunited fracture monteggia right side with malunited fracture ulna right side with malunited fracture humerus right side with flexion deformity of 15 degree right forearm with stiff right elbow joint with restricted supination movement right forearm. A bone graft had also been done. The Tribunal determined the compensation of Rs.7,50,000/- without in any way examining the issue from the context of the loss of earning capacity or assessment of non-pecuniary damages through legal parameters set through several decisions. The Tribunal took note of the fact that there was loss of salary to the tune of Rs.1,75,000/- that included loss of perks and facilities provided to the claimant. While the injury suffered is substantial, I feel that the discussion regarding the manner of assessment is grossly inadequate. I still do not feel that it is possible to entertain a plea of the Insurance Company regarding the validity of the award on the issue of quantum for the reasons already FAO No.160 of 1999 - 4 - adduced while rejecting its plea for permission to contest the case on the issue of quantum. The appeal by the Insurance Company is, therefore, dismissed. The appeal filed by the insured for enhancement is also dismissed, since there is no basis even for the compensation already dismissed but I have dismissed the appeal of the insurer only for the reason that it is not possible to examine the issue of quantum in an appeal by the insurer, when it did not have the benefit of defence on all grounds under Section 170 of the Motor Vehicles Act. 5. Both the appeals are dismissed. (K.KANNAN) JUDGE 28.07.2010 sanjeev