1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bheru Singh Vs. Hari Shankar and Anr. S.B. CIVIL MISC. APPEAL NO. 373/1997 against the judgment and Award dated 27.2.1997 passed by the learned Judge, Motor Accident Claims Tribunal, Rajsamand in Misc. Civil (MAC) Case No. 84/1991. DATE OF JUDGMENT :: 24.4.2008 PRESENT HON'BLE MR. BHANWAROO KHAN,J. Mr. Dilip Kawadia, for the appellant. Mr. Sanjay Nahar on behalf of Mr. Arun Bhansali, for the respondent No.1 Mr. Sanjeev Johari, for the respondent No.2 BY THE COURT : The injured-appellant filed a claim petition in Motor Accident Claims Tribunal, Rajsamand with an averment that on 28.6.1987 at about 6.30 p.m. he was going to village on bicycle, a taxi car bearing No. RST-1445 came from behind and struck him. Due to which, he received 2. grievous and serious injury and also the brain hemorrhage resulting in not allowing him to stand properly. He submitted a claim of Rs.1,03,000/- on varied heads against the respondents. The respondent Insurance Company submitted a reply and denied about the allegation levelled by the appellant and pleaded that as per Section 95(2)(b) of the Motor Vehicles Act, 1939 (for short 'the Act of 1939' hereinafter) they are having limited liability against the happening of accident. No reply was submitted by the respondent No.1. On behalf of the appellant, four witness were examined including himself. No testimony was led by the respondents. The Tribunal after evaluating and analysing the evidence passed an award of Rs.79,000/- in favour of the appellant. The appellant being aggrieved by the award so given being less in comparison to what he has demanded, has preferred this appeal. Both the parties were heard and the file was gone through. 3. Learned counsel for the appellant argued that the appellant suffered 100% disability about his earning capacity and presently after accident he is paralysed, which does not allow him to perform his routine labour work of masonry which he was doing prior to the accident. Ultimately, this resulted in total loss of earning. The Tribunal did not realise the seriousness of physically handicapped person and only awarded lump-sum amount which is not proper as per testimony produced by the appellant. Learned counsel for the appellant further argued that the respondent Insurance Company has been saddled only with the limited liability of Rs.50,000/- whereas the premium paid by as per policy is maximum and insurance of car was comprehensive. In such circumstances, liability should have been unlimited, but the Tribunal contrary to the record and the provisions, burdened the Insurance Company with the liability of Rs.50,000/- only. More so, the original policy of the Insurance was not produced in the Court and as per testimony produced by the insurance, it revealed that the original insurance policy was destroyed. The reliance placed by the 4. Tribunal on the copy of the policy is against the statutory provisions and an illegality has been committed while relying on the copy of the policy. The total claim as submitted by the injured – appellant is to be accepted and looking to the documentary as well as oral testimony produced by him enhancement in the claim was requested by the learned counsel. Learned counsel for the appellant submitted 2008 DNJ (SC) 175 (APSRTC, Rep. by its General Manager and Anr. V/s M. Ramadevi & Ors.) ; 2003 RAR 329 (Raj.) (Jeevraj Singh V/s Bhanwar Lal & Ors.); 2003 RAR 292 (Raj.) (Vishnu Kumari (Smt.) V/s Suresh Kumar & Ors.) and claimed that looking to the physical incapacity of the injured- appellant and the medical certificate having 100% disability to earn his livelihood, the compensation claim can be enhanced. Learned counsel for the respondent Insurance Company pleaded that as per Section 95 (2) of the Act of 1939, the liability of the Company in respect of third party risk looking to the premium paid can be limited as provided under the said Section and they are not liable to pay 5. the entire amount of compensation. The Tribunal while fixing the said liability upto the extent of Rs.50,000/- has committed no illegality and as per provision of the statute and policy, it has been rightly held by the Tribunal. Learned counsel for the respondent has submitted (2002) 2 SCC 278 (New India Assurance Co. Ltd. V/s C.M. Jaya and Ors.) and also (2004) 2 SCC 370 (National Insurance Co. Ltd. V/s Keshav Bahadur and Ors.) and argued that as per Section 95(2)(b)(i) of the Act of 1939, their liability is upto Rs.50,000/- only. Learned counsel for the respondent No.1 argued that they have deposited maximum premium and the insurance was comprehensive one so limited liability cannot be fixed on the respondent Insurance Company and the Insurance Company is to pay the total liability arising out of the accident third party risk. The main question about the enhancement of the claim when looked upon through the evidence produced documentary as well as oral, it is found that the injured himself in his cross-examination has categorically admitted that he can perform the agriculture work, meaning thereby 100% disability 6. to perform a job for earning is contrary to what AW-3 Dr. Anish has stated. A doctor is not an expert to state about the earning capacity. He is only to submit or opine about the physical incapacity of the injured which AW-3 Dr. Anish has failed to do. As in cross-examination, he has admitted that he is not certain about the exact time of attack of paralysis on injured Bheru Singh. From the evidence tendered, it is not certain that the injured in consequence of accident suffered paralytic attack immediately after the accident. The accident occurred in the year 1987 and the certificate Ex.-1 was obtained in the year 1993. This time gap about the injury of paralysis adversely go against the injured himself. All other documentary evidence about treatment do not show that the injured was having paralytic effect because of injury sustained by him during the accident. The injured is to capable of performing the agriculture odd as per his statement. In these circumstances it can be said safely that he has not lost his earning capacity. The Tribunal while taking into consideration of other factors including the injuries, if has awarded compensation Rs.50,000/- has not committed any illegality or irregularity in comparison to 7. what the injured himself demanded Rs.60,000/-. The claim fixed for about Rs.50,000/- is most reasonable and justiciable. More so, Rs.10,000/- has also been awarded for physical and mental agony, which makes the total compensation Rs.63,500/-. The awarded, is in fact justiciable and looking to the injuries incapacity of injured- appellant, the awarded amount is proper and no interference in that respect is called for. The Tribunal has awarded consolidated interest on the amount fixed which cannot be said proper because the injured-appellant is entitled for interest on the awarded amount from the date of filing of application to the date of realisation of the amount from the respondent. The instant claim was filed by the injured-appellant on 29.12.1987. From the respondent injured- appellant received Rs.38,010/- on 28.3.1997 and received Rs.11,990/- on 12.1.1993. On two different dates different amounts were received. The Insurance Company cannot escape the liability of interest which is on the principal amount awarded against them. Though the Insurance Company is saddled with limited liability of Rs.50,000/- but the interest on the amount of Rs.50,000/- 8. should have been beyond the principal amount and the appellant is entitled for interest on the award passed from the date of application to the realisation of the award. The Insurance Company is liable for interest on the amount of Rs.50,000/- only till it is realised from the insurance company. Rest of the amount of award and interest, the injured-appellant is entitled to receive from the respondent No.1 owner and driver of the car. To this extent, the appeal deserves to be accepted. Learned counsel for the appellant's argument about the unlimited liability of Insurance Company cannot be accepted because as per statutory provisions of the Act of 1939 (Old Act), Section 95 (2)(b)(i), which clearly speaks the limited liability upto Rs.50,000/- and the insurance liability would be confined to that what is provided in the statute. In the case of National Insurance Co. Ltd. Vs. Keshav Bahadur and Ors., reported in (2004) 2 SCC 370, the Hon'ble Supreme Court clearly held that even if a vehicle is the subject matter of comprehensive insurance and higher premium is paid on that score, limits of the liability with regard to third party risk 9. do not become unlimited or higher beyond the statutory liability fixed. Hence, the Insurance Company cannot be held liable more than what is fixed under the statute. Resultantly, the appeal is partly allowed on the point of interest only. The appellant injured instead of consolidate interest is entitled for interest @ 9% p.a. on the amount of award passed by the learned Tribunal from the date of filing of the application till realisation. (BHANWAROO KHAN) J. RM/