National Insurance Company Limited, Regional Office No.II, SCO No v. Kewal Krishan & Anr.

F.A.O.No. 1228 of 2005 Kewal Krishan son of Shri Babu Ram, Resident of 283/26, Veena Nagar Camp,Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar. ........Appellant Versus Krishan Lal and another .........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Jagtar Kureel, Advocate, for Mr. D.P.Gupta, Advocate, for the Insurance Company. Mr. Rahul Garg, Advocate, for Mr. Ashwani Talwar, Advocate, for the 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 K.Kannan, J.(Oral) F.A.O.NO. 841 OF 2005 and F.A.O.No. 1228 of 2005 2

1. Both the appeals are connected and address the issue of compensation. The Auto Rickshaw involved in the motor accident had been insured with the appellant insurance company in FAO NO. 841 of 2005. The accident arose out of a collision of Auto Rickshaw which the claimant was driving, with the jeep. The Tribunal found that the claimant himself had contributed an accident in equal measure and therefore, while assessing compensation and apportioning the liability, directed 50% of the amount to be paid by the owner of the jeep and directed 50% to be made by the insurer of the Auto Rickshaw, which the claimant was driving.

2. The Insurance Company is in appeal, contending that the policy of insurance was comprehensive but it did not cover the risk to the driver/owner himself and there was no personal policy to make the insurer liable. Even in an application under Section 163-A of the Motor Vehicles Act(hereinafter referred to as the 'Act'), it would have possible for the claimant to recover the entire amount against the other vehicle which was involved in the accident without having to prove negligence on the part of the other vehicle and without suffering any abatement of the claim by the fact that he himself had contributed to the accident. There is no way by which the owner could have claimed compensation against his own insurer. There was no term under policy to cover the risk for his personal injuries. The award passed by the Tribunal directing the insurer to pay 50% of the F.A.O.NO. 841 OF 2005 and F.A.O.No. 1228 of 2005 3 amount for the injuries suffered by the insured is clearly erroneous. The award against the insurer is set aside and the appeal filed by the insurer i.e. FAO NO. 841 of 2005 is allowed.

3. The claimant has preferred an appeal i.e. FAO No. 1228 of 2005 against the award challenging the adequacy of compensation. The accident in which he has suffered an amputation of the thumb, the loss of earning capacity for loss of thumb would be 14% as set out in part II of Schedule-I under the Workmen's Compensation Act. He had also fracture and over all disability was taken as 30% and the loss of earning capacity was also assessed by the Tribunal. The Tribunal took the income at Rs.3,000/- per month and the learned counsel appearing for the claimant would contend that the Tribunal must have been given the maximum right of recovery upto the maximum limit admissible under Section 163-A of the Act, namely Rs. 40,000/-. I cannot accede to such a plea and there is no rule of thumb that in every claim under Section 163-A of the Act, the assessment must be made that the deceased or a claimant was earning Rs. 40,000/-. There was no clear proof of income and the Tribunal however, made an assumption that person who is doing a business could have been earning Rs. 3,000/- per month. I can not make therefore, any revision of assessment of his income. The Tribunal has adopted a multiplier of 15 for a person who was aged 43 years and assessed an over all compensation at Rs. 81,000/-(18000x15x30%) for disability. I cannot F.A.O.NO. 841 OF 2005 and F.A.O.No. 1228 of 2005 4 fault for same, if the formula prescribed under the Workmen's Compensation Act were to be taken in the manner referred to under Section 163-A of the Act, the amount of compensation that would become payable would be even less than Rs. 1,00,000/-. The Tribunal has again provided for medical expenses at 17,000/- when the statutory limit under Section 163-A of the Act is only Rs. 15,000/- under every heads of claims. However, I will not make any deduction for the same, since there is no appeal by the owner of the jeep and in the appeal filed by the insurer in FAO No. 841 of 2005, I have already exonerated the Insurance Company and found that by invoking power under Section 163-A of the Act, it shall become perfectly tenable for the claimant to realise whole amount from the owner of the jeep without suffering any abatement of claim by his contributory negligence.

4. The award is modified in the appeal filed by the claimant to provide for right of enforcement of the same for the amount determined by the Tribunal against the owner of the jeep who has arrayed as first respondent in the appeal filed in FAO NO. 1228 of

2005. FAO No. 841 of 2005 is allowed and FAO No. 1228 of 2005 is modified and decree is passed against the 1st respondent wholly as referred to above.

5. The Insurance Company has deposited Rs. 25,000/- at the time of preferring the appeal. It is entitled to obtain the refund of the whole amount. It is learnt that the entire amount has been satisfied to F.A.O.NO. 841 OF 2005 and F.A.O.No. 1228 of 2005 5 the claimant. By the modifications, I have provided for, a right of recovery by the insurer shall be enforced only against the owner of the jeep. 12th October, 2010 Shivani Kaushik [K.KANNAN] JUDGE