IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1216 of 2000 Date of decision:20.08.2010 The New India Assurance Company Limited ....Appellant versus Munish Kumar and another ...Respondents II. FAO No.1814 of 2000 Munish Kumar ....Appellant versus Raj Kumar and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. L.M. Suri, Senior Advocate, with Mr.Neeraj Khanna, Advocate, for the appellant in FAO No.1216 of 2000 and for respondent No.2 in FAO No.1814 of 2000. Mr. Kulwant Singh Dhanora, Advocate, for the appellant in FAO No.1814 of 2000 and for respondent No.1 in FAO No.1216 of 2000 ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- FAO No.1216 of 2000 - 2 - K.Kannan, J. (Oral) 1. The two appeals address the claim relating to the same accident, the insurer having come on appeal having liability cast on it and the injured person coming on appeal seeking for enhancement of the compensation. 2. The accident has arisen out of a collision between the insurer's jeep and a scooter. The claimant is the scooterist, who was injured in the accident. The Tribunal has found the driver of the jeep to have been guilty of negligence driving and has made the insurer liable. The learned senior counsel for the insured would contend that in the said accident, a passenger in the jeep was also injured but the claim was dismissed on the ground that it was established that the owner of the jeep had used it as a taxi when it had been insured only as a private vehicle. This, according to him, would show that the insured had been guilty of breach of terms of the policy and, therefore, the insurer shall not be liable for the claim arising under the accident. 3. The claim, in this case, is by a scooterist, who was a third party to the jeep. If there was a finding that the insurer's vehicle had been guilty of negligence, the liability of the insurer for such a vehicle cannot be denied at all. Even for a violation of terms of the policy, it has to be seen whether the violation complained of is itself the cause of the accident or the person who was making the claim was in some way responsible for violation of the terms. For determining the liability as far as the third party was concerned and in the manner in which the accident is said to have been taken place, the so called user of the vehicle against FAO No.1216 of 2000 - 3 - the terms of the policy was wholly irrelevant. This aspect has been considered in a slightly different circumstance by the Hon'ble Supreme Court in National Insurance Company Versus Swaran Singh (2004) 3 SCC 297, where the issue was whether even on proof of fake licence or that the driver did not have a valid driving licence, it would afford a ground to the insurer to deny liability in all circumstances. The Hon'ble Supreme Court made exceptions to the fact that when the accident is due to mechanical failure or act of God, the insurer cannot plead exclusion of liability by the only fact that the driver did not have a valid driving licence. In other words, while rooting for liability on the insurer, the breach complained of must have relevance to the fact of a claim itself. If a claim is made by a third party, the breach complained of could have a bearing if the driver did not have a valid driving licence. If there was a user of a private vehicle as a taxi, if a liability claim had been sourced to any of the passengers in the car which was used as a taxi, the violation could have still relevance. In this case, it cannot avail to an insurer to contend that it will not be liable for the accident when the claim was made a third party. 4. The case has to be therefore examined only on the issue of quantum of how the Tribunal has determined with reference to the injury. The claimant had examined himself to state that he was engaged in dairy farming and he was also an agricultural labourer and doing business in piggery. The Tribunal took note of the fact that the disability that had been caused by the accident could have involved in loss of income during the period of his treatment and provided Rs.10,000/- under the FAO No.1216 of 2000 - 4 - said head. The contention is that no provision has been made for future loss of income arising by the loss of earning capacity by the permanent disability. The learned counsel would submit that the injured had been taking treatment in at least four hospitals at different times between the period from 15.06.1997 to 02.02.1998 and even thereafter as out-patient. He had taken treatment in Kurukshetra, Karnal, Rohtak and then again at Karnal. His complaint is that no provision had been made for transport expenses and for a prolonged treatment of more than six months, no provision had been given for attendant’s charges. 5. The charges for attendants, the transport expenses must all be matters of evidence and I am totally handicapped by complete lack of details relating to the said heads of claims. The complainant had produced medical bills to the tune of Rs.29064.50 and the Tribunal added towards transport expenses and attendant’s charges additional amount to round if off to Rs.40,000/-. The only additional expenses which I can provide in the manner in which the claimant states that he has obtained treatment in four different places and he had to spend going to various will be to provide for another Rs.10,000/- for transportation, special diet and attendant. He has also produced a disability certificate that showed that the complainant had suffered a permanent disability who has given evidence to the effect that he along with two other senior doctors at Lok Nayak Jai Parkash Hospital at Kurukshetra had examined them and found to have suffered 27% disability on account of restricted movements of right knee and shortening of the right leg as detailed in the certificate Ex PB. The Tribunal has determined the compensation of FAO No.1216 of 2000 - 5 - Rs.35,000/- for such disability. 6. A functional disability of a leg that a human being uses for walking/standing, if it is impaired to the extent of 27%, it ought to reflect on not merely a loss of amenities in his life but also result in a loss of earning power. The appropriate method of determining compensation shall therefore be translate the functional disability to a loss of earning power and provide for compensation by projecting the particular loss that would have been occasioned by the disability. No such attempt at all has been made before the Tribunal and no material is placed before me to show as to how this disability has impaired the earning capacity of the claimant. I am expressing this only to address a serious lacuna in evidence that is seen almost in every case where a practice has come about through decisions of this court where Rs.2000 is being awarded for every percentage of disability. This has been adopted in Piara Singh and others Versus Satpal Kumar 2007 (2) PLR 143 and Ram Kiran Goyal Versus Sub-Divisional Engineer, Mechanical and others 2009 ACJ 1070. I am not sure, if they constitute any law on the subject but I proceed on such assumption and award Rs.2,000/- for every percentage of disability to arrive at Rs.54,000/- as the amount of compensation. This, I will assume, will go to address the compensation for loss of amenities of life, shortening of life and as special damages for loss of future earning. I make no assessment for loss of earning capacity separately on the point addressed by the counsel for the respondent/ claimant, with no evidence or no worthwhile arguments made on said basis. The only additional compensation which will be possible will be FAO No.1216 of 2000 - 6 - providing for an enhancement for pain and suffering which the Tribunal had awarded at Rs.5,000/- for a prolonged treatment for more than six months, I would afford to the petitioner a compensation of Rs.20,000/-, which would mean an additional sum of Rs.15,000/-. In all, there will be an additional sum of Rs.34,000/- in the manner reckoned above. 7. The additional sum of compensation that is determined will attract interest at 6% from the date of the petition till the date of payment. 8. The appeal is dismissed and the cross appeal is partly allowed in the manner indicated above. (K.KANNAN) JUDGE 20.08.2010 sanjeev