New India Ass. Co. Ltd., through Shri K.B.Bindal Legal v. Sat Pal Singh & Anr.

Smt. Rekha and another ........Respondents Sat Pal Singh F.A.O.NO. 506 OF 1997 ......Appellant Versus Harbans Singh and others .......Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate, for the Insurance Company. Mr. J.S.Virk, Advocate, for the respondents.

1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No

2. 3. Whether the judgment should be reported in the Digest? Yes/No F.A.O.NO. 19 OF 1997 , F.A.O.NO. 20 OF 1997 and F.A.O.NO. 506 OF 1997 K.Kannan, J.(Oral) 2

1. The three appeals arise out of the same accident. FAO Nos. 19 and 20 of 1997 have been filed at the instance of the insurer for damage to property, which is the vehicle owned by the wife of the injured person. The claimant who was the driver of the truck who suffered injuries has filed FAO NO. 506 of 1997, seeking for enhancement.

2. As regards the claim in FAO Nos. 19 and 20 of 1997, it addresses an issue for adjudication for damage to the car by its collision with the insured's vehicle-Canter. Before the Tribunal the evidence was produced to the effect that there had been extensive damage requiring setting the dent in order and repainting. On the bills produced, the Tribunal assessed the damage to the vehicle at Rs. 50,000/-. The Tribunal also provided for loss of income by the use of the car during the time when the vehicle could not be put to use.

3. The contention of the learned counsel for the insurer is that the Tribunal does not have jurisdiction to award damages for the use of the vehicle. Literally every Court of this country has dealt with this issue relating to the jurisdiction of the Tribunal to determine compensation for loss by non user of a vehicle which is damaged. To wit, the cases are: General Manager, Kerala State Road Transport Corporation Trivandrum vs. K.P.Saradamma (1989) AIR 23(Kerala), Kishori vs. Chairman, Tribal Services Co-op Society Ltd. and others (1996) ACJ 562(Madhya Pardesh), Karnataka State Road F.A.O.NO. 19 OF 1997 , F.A.O.NO. 20 OF 1997 and F.A.O.NO. 506 OF 1997 3 Transport Corporation and another vs. V.K.Abdul Majeed and others(1991) ACJ 453, M/s Thiruvalluvar Transport Corporation Ltd. vs. C.K.Syed Yacoob(2000) 1 ACC 67 (Madras) and Konala Maniyya, vs. Sambasivare (2000) AIHC 970(Andhra Pardesh, I would not therefore, allow the claim for compensation for any damages for the non user of the vehicle. The damage which was the immediate proximate caused for the accident is the only head of claim that is permissible under Sections 165 and 166 of the Motor Vehicles Act. The amount awarded by the Tribunal for loss of income for the vehicle assessed at Rs. 48,000/-, is set aside and the compensation shall be only for the damage to the vehicle caused, which is assessed at Rs. 50,000/-. The award of the Tribunal is therefore, modified and the appeal is allowed in part for Rs. 50,000/- with interest in the manner awarded by the Tribunal.

3. As regards the appeal by the Insurance Company as well as the appeal by the claimants for enhancement, the evidence that was brought before the Tribunal was that he had suffered serious injuries of the arm and on his leg. He was a police constable and he had undergone long periods of hospitalisation from the date of the accident that took place on

6.10.1993 to April 1994. The claimant has given the details of his admission in the hospital from 6.10.1993 to 11.1.1994,

12.01.1994 to 25.01.1994 and 31.03.1994 to 4.04.1994. The medical bills of treatment have been to the tune of Rs. 49,000/- F.A.O.NO. 19 OF 1997 , F.A.O.NO. 20 OF 1997 and F.A.O.NO. 506 OF 1997 4 plus and the Tribunal has however, taken the medical expenses to be Rs. 1,50,000/-. Before the Tribunal, the doctor had given evidence to the effect that further treatment has to be undertaken and operations have to be performed. He estimated the future expenses for operation at Rs. 1,50,000/-. The Tribunal had awarded Rs. 50,000/- towards the same. I would treat the manner in which the Tribunal has provided for expenses to be merely a mistake. The expenses already incurred could have been taken as Rs. 50,000/- on the basis of bills produced and on the basis of evidence regarding the possibility of future operation and expenses costing Rs. 1,50,000/- it could have been granted as such. In either way, the total medical expenses and the provision for future expenses would aggregate Rs. 2,00,000/-. I find that there is basis in evidence and I would sustain the same. Though no specific disability certificate was produced, there is extensive and detailed evidence of the doctor which has been placed before the Court. The doctor has referred to the fact that the claimant has suffered 3 inch shortening of his leg, he cannot walk and it may not be possible for him to run. The key to efficient working of a police man is his mobility and if he has suffered an impairment in his mobility then the handicap which he has suffered by the accident which the doctor has assessed at 50% must be taken to result in serious impairment of his future prospects of promotion and the loss of earning capacity as well. The Tribunal has awarded Rs. 36,000/- as the loss of income and F.A.O.NO. 19 OF 1997 , F.A.O.NO. 20 OF 1997 and F.A.O.NO. 506 OF 1997 5 Rs. 90,000/- as the loss on promotional prospects. The amount is modest, considering the fact that the disability is really high and the impairment of income could have been even more. But what is deficient has been provided in excess measure for pain and suffering where the Tribunal has awarded Rs. 75,000/-. The appropriate amount could have been even lesser than that but if it were to be Rs. 25,000/-, the additional amount of Rs. 50,000/- which was awarded towards pain and suffering ought to have been provided towards loss of promotional prospects which was taken only at Rs. 90,000/-. The over all assessment of the compensation was at Rs. 4,01,000/- and I am of the view that the compensation is adequate and just.

4. The appeal challenging the quantum by the Insurer is dismissed and the appeal seeking enhancement for the compensation is also dismissed. The award of the Tribunal therefore, is confirmed in all respects except the provision for loss of income by the damaged vehicle which has been taken at the instance of the insurer against the owner of the vehicle. All the appeals are disposed of as above. 13th September, 2010 Shivani Kaushik [K.KANNAN] JUDGE