National Insurance Company Limited v. Mohinder Singh & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Balbir Singh Wasu, Advocate, for the appellant. Mr. Amit Kakkar, Advocate for Mr. Sumeet Mahajan, Advocate, for the respondents/claimants.

2. 3. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No Whether the judgment should be reported in the Digest? Yes/No F.A.O.NO. 166 OF 2000 and F.A.O.NO. 3566 of 1999 2 K.Kannan, J.(Oral)

1. These two appeals arise out of the same accident. The claimant was an injured in a motor accident and the vehicle involved was jeep. The Tribunal found the jeep driver to be responsible for the accident. The claimant had given evidence to the effect that he was 28 years of age, he was a mason and by virtue of injuries he had sustained a permanent disability of 25%. The Tribunal assessed a compensation of Rs. 40,500/- and directed the amount to be payable by the insurer.

2. The Insurer for the jeep took a defence that the driver did not have a valid driving licence. He had merely a lincence to drive a car and the scooter but he was driving a Tata Sumo jeep. The Tribunal referred to the definition under Section 2(26) of the Motor Vehicles Act(hereinafter referred to as the 'Act') and found that jeep fell within a category of Light Motor Vehicle and the licence that he held was an effective driving licence.

3. The Insurance Company is in appeal to contend that there was no specific reference to the fact that he was authorised to drive a jeep and therefore, the driver was not duly licenced. Unless the driving skills for a jeep and the car are said to be different, the fact that he holds a driving licence for a car cannot exclude his ability to drive a jeep as well. Section 10 of the Act itself does not provide any distinct category for a jeep and the possession of a motor car must be F.A.O.NO. 166 OF 2000 and F.A.O.NO. 3566 of 1999 3 taken to be sufficient for a jeep as well. The appeal filed by the insurer against the liability cast on it, is therefore, dismissed.

4. In FAO No. 3566 of 1999, the appellant seeking for enhancement of claim for compensation before the Tribunal. The evidence was led to the effect that he was admitted as an indoor patient from 1.04.1996 to 18.04.1996 and there he was operated at the hospital on 9.04.1996. The fracture was reduced by k-nailing and he had also suffered a fracture below the knee and left arm. Before the Tribunal evidence was given that he was earning Rs. 200/250 per day and after the accident, he could not work for one year. There was evidence through one lambardar AW-4 who said that the claimant was a skilled mason and he earned about Rs. 5,000/- per month. The Tribunal therefore, held that the claimant was entitled to pecuniary and non pecuniary damages. The Tribunal awarded Rs. 5,000/- towards pain and Rs. 5,000/- for the hospital charges for two weeks. The claimant had fracture of the thigh and also fracture below knee. Even, if I take Rs. 7,500/- for each fracture towards pain, I would provide for an additional amount of Rs, 10,000/- towards pain and suffering. The Tribunal took Rs. 2,500/- for the amount spent on medicine. No medical bills were produced and therefore, the Tribunal made an approximation of the amounts was spent. Although the evidence was that he had spent Rs. 25000/- for medicines, I would take that he must have spent atleast Rs. 10,000/- towards medicines and I F.A.O.NO. 166 OF 2000 and F.A.O.NO. 3566 of 1999 4 would provide for an additional amount of Rs. 7,500/- towards medicines. The Tribunal awarded Rs. 5,000/- towards the expenses incurred on hospitalisation and transportation, which I retain. The claimant could not work for a year and gave evidence to the effect that he used to be earning about Rs. 250/- per day and the evidence was also given through Lambardar AW-4 that he used to earn of Rs. 5,000/- per month. I would take his income as Rs. 3,000/- per month and provide for loss of income during the time on account of accident for a period of six months. The loss of past earning, I would therefore, take as Rs. 18,000/-. The Tribunal took Rs. 20,000/- as loss due to permanent disability. I would undertake it as a loss due to loss of amenities, inconvenience and reduction for quality of life, I will retain the same. The Tribunal provided for a future loss of earning at Rs. 8,000/-. If he worked as mason, the nature of work would require substantial hours of standing, I would take that the permanent disability that he had in his leg would have resulted at least 10% of loss of earning capacity. He was aged 28 years and if his income were to be taken at Rs. 3,000/- per month, multiplier that could be applied under Schedule II is 18. The loss of earning capacity for 10% which have taken the loss of future earning would be 3000x12x18 and it will be Rs. 64,800/-. The Tribunal had already provided for Rs. 8,000/- as the loss of future earning, I have increased it to Rs. 62,800/- which would mean in increase of Rs. 56,800/-. In all an additional Rs. 92,300/- F.A.O.NO. 166 OF 2000 and F.A.O.NO. 3566 of 1999 5 would be required to be paid and the amount in excess what has already been provided shall bear interest 6% from the date of the petition till the date of payment. The appeal filed by the claimant for enhancement shall stand allowed to the above extent. 17th September, 2010 Shivani Kaushik [K.KANNAN] JUDGE