FAO No.837 of 1988 & X-Objections No.52-CII of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.837 of 1988 & X-Objections No.52-CII of 1999 DATE OF DECISION: February 3, 2011 NATIONAL INSURANCE CO. LTD. ...APPELLANT VERSUS JARNAIL SINGH ETC. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. VIVEK SINGAL, ADVOCATE FOR THE APPELLANT. MR. ARUN BANSAL, ADVOCATE FOR RESPONDENTS. K.KANNAN, J.(ORAL) 1. This is an appeal by the insurance company of an auto-rickshaw having a permit to carry 7 passengers. The accident had taken place in year 1985, when the provision of Motor Vehicles Act of 1939 was applicable. The liability for an insurer for anyone accident for a passenger carrying vehicle was `15,000/- in terms of Section 95(2)(b). However, the Tribunal while assessing the compensation and determining the amount of compensation as `73,400/- as payable, awarded the entire amount to be paid by the insurance company. 2. The insurance company was pleading for restriction of a liability in a case where it denied the subsistence of policy itself and also stated that if policy must be taken as established, then the liability shall restricted to `15,000/-. There is no presumption in law that the liability FAO No.837 of 1988 & X-Objections No.52-CII of 1999 -2- must be restricted only as per the limit contained under Section 95(2)(b), for it was perfectly legitimate for an insured to take the full insurance cover for a liability to a passenger. Ultimately, it turns on policy terms and cannot be a matter of assumption that the liability of the insurer is always restricted. The liability is cast on the insurer by the Tribunal is, therefore, justified and the appeal by the insurer is dismissed. X-Objection No.52-CII of 1999 There is a x-objection in the appeal. The amount of compensation, in my view, is inadequate, for, the Tribunal has merely taken the monthly loss arising out of the amputation at `300/- without taking note of the fact that from the previous occupation in Military as Fire Engine Driver, he had been reclassified as a Messenger on a salary of 895/-. I will take disability resulting from amputation of the arm as resulting in 60% loss of earning capacity, I would provide for a higher percentage of loss than what was shown to have immediately taken place by such reclassification, but the loss of earning capacity cannot be in any way less than what the statute provides under the Workmen Compensation Act. The Tribunal has also not provided appropriately for loss of amenities for a man who had lost his hand and has also not provided for pain and suffering for the amputation suffered. I will make a tabulation of the claim which is possible as below:- Injury Cases Age: 38 Period of Hospitalization Occupation & Income - Driver, Fire Engine 1200 Heads of Claim Tribunal High Court Sr.No. Amount ` Amount ` 1. Loss of income from to FAO No.837 of 1988 & X-Objections No.52-CII of 1999 -3- Injury Cases 2. Medical Expenses: (i) Medicines 2200 2200 (ii) Hospital Charges (iii) Attendant Charges 5000 (iv) Special Diet 5000 3. Transport - 4. Pain & Suffering – per fracture/per surgery 25,000 5. Disability 60% 6. Loss of earning capacity 60% Income x % of loss of earning power x multiplier 61,200 1,29,600 7. Reduction in life expectancy/Loss of amenities 25,000 8. Loss of Pension 10,000 10,000 Total 73,400/- 2,01,800/- The amount in excess over what has already been awarded by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. Consistent with the finding recorded above, the amount of enhanced compensation shall be borne wholly by the insurer. February 3, 2011 (K.KANNAN) Gulati JUDGE