Abdulhamid Valimohmad vs Ramaben Virpuri Goswami & on 27 January, 2014

[Cites 33, Cited by 1]

Gujarat High Court

Abdulhamid Valimohmad vs Ramaben Virpuri Goswami & on 27 January, 2014

1. Both these appeals under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") are directed against the common judgment and award dated 15 th July, 2000 passed by the Motor Accident Claims Tribunal (Main), Banaskantha district at Palanpur (hereinafter referred to as "the Tribunal") in Motor Accident Claim Petition No.338/1992, hence the same were taken up for hearing together and are decided by this common judgment. The appellant in First Appeal No.2691 of 2000 is the owner of the offending tractor and the appellant in First Appeal No.2159 of 2001 is the original claimant.

2. The appellant in First Appeal No.2159/2001 (hereinafter for the sake of convenience referred to as "the claimant") filed a claim petition before the Tribunal stating that she had made a 'Khala' (threshing area) in her field for threshing wheat and bundles of unthreshed wheat were spread out in the Khala on 19th April, 1992 and the driver of tractor bearing M.V. No.GJ-9/8396 was running the tractor on the said bundles of unthreshed wheat at which point of time, the appellant was putting wheat bundles into the Khala sitting near it. According to the said appellant, the driver was driving the tractor with excessive speed and in a rash and negligent manner, on account of which, he lost control over the tractor and the tractor ran over the left hand of the appellant as a result of which the hand of the appellant got totally crushed and her left ribs were fractured. It was also the case of the appellant that prior to the accident, she was healthy and was personally carrying out household tasks and was engaged in the work of agriculture and cattle rearing; that she was Page 2 of 41 C/FA/2691/2000 JUDGMENT maintaining buffaloes and selling the milk to the milk co- operative society and was thereby earning Rs.1,200/- to Rs.1,500/- per month. On account of the accident, she is now required to engage another person on a salary of Rs.6,000/- per month for looking after the cattle and requires the services of a maid servant for the household work. On account of the amputation of her left hand and on fracture of her left ribs, she is unable to do any laborious work and she was suffering from pain of the left ribs and left hand. It was the case of the appellant that she had to experience humiliation, embarrassment and mental pain on account of the amputation of her hand as the same had resulted in disfiguring her body and her physical appearance has become ugly and that she could not sing and dance on auspicious occasions. She, therefore, filed the claim petition seeking compensation of Rs.1,50,000/-.

3. Before the Tribunal, though both the opponents namely, the owner of the tractor as well as the insurance company entered appearance, however, the opponent No.1 viz., the owner (hereinafter referred to as "the owner"), did not choose to file his written statement in response to the averments made in the claim petition. The insurance company filed its written statement and submitted that it was not liable for the claim as the accident had taken place in a private place and not a public place and that the insurance policy neither covered such a risk nor was it required to cover such a risk. The Tribunal, after appreciating the evidence on record, held that there was negligence on the part of the driver of the tractor and that the appellant - claimant was entitled to compensation of Rs.1,07,800/-. On the question as to which of Page 3 of 41 C/FA/2691/2000 JUDGMENT the opponents were liable to pay such compensation, the Tribunal held that the field of the claimant was not a public place and as such, the insurance company would not be liable and exonerated the insurance company of its liability as the accident had taken place in a private place and the policy being an "Act policy", the same did not cover any wider risk. The Tribunal, accordingly, held the appellant/owner to be wholly liable for payment of compensation to the appellant/claimant.

4. Mr. Apurva Jani, learned advocate for Mr. Ashish Dagli, learned advocate for the appellant/owner in First Appeal No.2691/2000 assailed the impugned judgment and award by submitting that the Tribunal had erred in holding that the accident had not taken place in a "public place" and exonerating the insurance company of its liability to indemnify the owner in respect of the compensation awarded by it. Drawing the attention of the court to the impugned judgment and award as well as to the record of the case, it was pointed out that the accident in question had taken place in the agricultural field owned by the husband of the claimant. Referring to the deposition of the claimant, it was pointed out that it was the categorical case of the claimant that the agricultural field in question was open on three sides and that any person can have access to the field from the public road. Referring to the cross-examination of the claimant, it was pointed out that she had denied that the entry was restricted. It was, accordingly, urged that the agricultural field where the accident took place squarely falls within the ambit of the expression 'public place' as defined under section 2(34) of the Act. In support of his submission, the learned advocate placed Page 4 of 41 C/FA/2691/2000 JUDGMENT reliance upon the decision of the Karnataka High Court in the case of United India Insurance Co. Limited v.

Purushothama and Ors., 2003 (2) KCCR 885, wherein the vehicle which had caused the injury was a crop harvester of the deceased, who was a practising advocate and who owned the land in question and had gone to supervise some operations when the driver was careless in operating the machine and the deceased sustained severe injuries and was killed. As regards the argument that the field was not a public place, the court held that once the vehicle had been insured by the insurance company, unless there was a clause in the policy limiting the liability to the use of the vehicle in certain circumstances, which the court did not find in the policy, it would not be permissible to argue that merely because the injury takes place at a place other than the conventional road, the liability of the insurance company is exonerated. The court also was not willing to permit such a challenge principally because it found from the pleadings that these contentions were never taken up before the Tribunal and the respondents did not have notice of the same.

4.1 Reliance was also placed upon the decision of a Full Bench of the Madras High Court in the case of United India Insurance Co. Ltd. v. Parvathi Devi and Ors., 1999 ACJ 1520, wherein the court observed that the definition of 'public place' is very wide and that the same reveals that the public at large has a right to access though the right is regulated or restricted. The Act being a beneficial legislation, the law of interpretation has to be construed in the benefit of public. If the language is simple and unambiguous, it has to be construed in the benefit of the public. The court was of the Page 5 of 41 C/FA/2691/2000 JUDGMENT view that the word 'public place', wherever used as a right or controlled in any manner whatsoever, would attract section 2(24) of the Act. A private place used with permission or without permission would amount to a 'public place' and that the expression 'public place' for the purpose of Chapter VIII of the Motor Vehicles Act, 1939 will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever.

4.2 Reliance was also placed upon the decision of the Andhra Pradesh High Court in P. Muse Khan and Ors. v. M. Gopala Krishnaiah and Anr., 2004 ACJ 1306, wherein the question before the court was whether the agricultural field where the accident occurred was a public place within the meaning of section 2(34) of the Motor Vehicles Act, 1988 so as to fasten the liability against the insured for the compensation awarded by the Tribunal. The court, referred to various decisions, including the decision of a Full Bench of the Bombay High Court in Pandurang v. New India Life Insurance Company Limited, AIR 1988 Bombay 248 and the decision of a Full Bench of the Madras High court in United India Insurance Company Limited v. Parvathi Devi and Ors., 1999 (2) ACJ 1520, and held that the evidence on record showed that the offending vehicle which was a bore well support lorry belonging to the first respondent, was engaged to dig a bore well in the field of one Shanker Reddy and during the course of drilling, the accident took place, resulting in the death of the deceased. The report given by the driver of the crime vehicle as recorded in the first information report itself showed that at the time of the accident, a number of villagers Page 6 of 41 C/FA/2691/2000 JUDGMENT were present in the field and watching the drilling operation. According to the learned advocate, the place was accessible to the members of the public. Since there was absolutely no rebuttal of evidence on behalf of the respondents therein to show that the entry of public into the field was restricted or obstructed at the relevant time or at any time prior to that, the court held that the Tribunal was not justified in holding that the place where the accident took place was not a public place within the meaning of section 2(34) of the Act. The court was of the view that, even a private place to which members of public have a right shall be held to be "public place" and such question has to be determined considering all the facts and circumstances of the case on hand and on the basis of the evidence on record.

4.3 The decision of the Madhya Pradesh High Court in the case of Rajendra Singh v. Tulsabai and Ors., 2004 ACJ 1898 was cited, wherein, in the facts of the said case the accident had taken place in the premises of a cement factory, wherein trucks and dumpers used to come inside the said factory to load cement bags for transportation to various destinations. The court, after referring to various decisions of different High Courts, including the decisions of a Full Bench of the Bombay High Court in Pandurang Chimaji Agale v. New India Life Insurance Company Ltd., 1988 ACJ 674 as well as of a Full Bench of the Orissa High Court in Oriental Fire and General Insurance Company Ltd. v. Raghunath Muduli, found that almost all the High Courts were veering round to the illuminating dictum of the Full Bench in the case before the Bombay High Court. The court, accordingly, held that the compound of the cement factory to which the public Page 7 of 41 C/FA/2691/2000 JUDGMENT had access and the vehicles were going there for the business purposes and where the accident occurred was definitely a 'public place' and, therefore, the insurance companies could not escape from their liability and were bound to indemnify their insured persons and pay the compensation directly to the applicants therein.

4.4 Reliance was also placed upon the decision of the Madhya Pradesh High Court in the case of Smt. Hira Bai and Ors. v. Pratap Singh and Anr., 2008 ACJ 2660, wherein one Lakhan Singh Lodhi was seated in a tractor belonging to one Pratap Singh-the respondent No.1 therein for the purpose of ploughing the field of one Khalak Singh and at that juncture the tractor turned turtle as a result of which Lakhan Singh came underneath the said tractor and died on the spot. The court, after referring to various decisions in this regard, including the decision of the Full Bench of the Madras High Court in the case of United Insurance Company Limited v. Parvathi Devi, held that the Tribunal had recorded a finding that the driver was proceeding towards the public road and at that juncture, the accident had occurred at the public place. In the light of the decisions to which a reference had been made therein, the court observed that 'public place' does not necessarily mean that it must be public property. From the evidence on record, the court found that the place was not a public road but the public had a right to access the same. There was no testimony that the public was debarred to enter into the said road. Keeping in view the connotative expanse of the term 'public place', the court held that the Tribunal was not justified in holding that the place in question was not a public place.

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4.5         Reliance was also placed upon the decision of the

Andhra Pradesh High Court in the case of New India Assurance Co. Ltd. v. Are Poshanna @ Posalu, II (2005) ACC 511, wherein the sole contention before the court was that since the accident did not occur in a public place, the appellant

- insurance company was not liable to pay the compensation to the respondents therein. The court observed that the question whether the place of accident was a public place or not may not be of relevance for deciding the appeal because it is well-known that when insurance of a vehicle is admitted, the burden to establish that it is not liable to pay the compensation payable to the victim or the legal representatives of the victim in an accident caused by the vehicle insured by it, is on the insurer. The court further observed that as per section 146 of the Act, no person shall use, except as passenger, or cause to allow any other person to use, a motor vehicle in a public place, unless it is insured as per the requirements of Chapter XI of the Motor Vehicles Act, 1988. It is well-known that the insurer can undertake liability for the acts not covered by the Act. Though the provisions of the Act make insurance of a vehicle compulsory for its being used in a public place and though section 147 of the Act lays down that the insurer would be liable under the provisions of the Act if the accident occurs in a public place, since there is no prohibition for the insurer undertaking the liability even when the accident occurs in a private place also, it is for the appellant to produce the policy of insurance and establish the terms agreed to by it. The appellant did not either produce the policy of insurance or adduce evidence on its behalf to show the terms and conditions of the policy. The respondents No.1 to 4 therein had Page 9 of 41 C/FA/2691/2000 JUDGMENT produced a xerox copy of the insurance certificate which did not contain all the terms and conditions agreed between the appellant and the sixth respondent, the owner of the vehicle. The court observed that from Exhibit A/5, all the terms and conditions agreed between the appellant and the sixth respondent were not known. So, only on the ground that the appellant (therein) failed to establish that it was not liable to pay compensation as per the terms and conditions of the policy, the court was of the view that appeal deserved to be dismissed. The court, placing reliance upon its earlier decision in the case of P. Muse Khan v. M. Gopala Krishnaiah (supra), thereafter held that since the Motor Vehicles Act is a beneficial legislation and since the accident occurred in the field of a third party where the tractor was undertaking ploughing operations and ran over a worker in the field, the field where the accident took place also should be considered as a public place for making the insurer also liable.

4.6 Reference was also made to the decision of a Division Bench of this High Court in Prakash Chemicals Private Ltd. v. Krishna Singh Sata Singh, 1993 ACJ 218, to submit that in terms of the law laid down in the said decision, there should be access to the place in question. The object of members of public to go into such place is not required to be looked into. It was, accordingly, argued that applying the above ratio to the facts of the present case, it is quite clear from the deposition of the claimant that her field was open from three sides and that any person could enter the agricultural field from the public way. In her cross-examination, she has categorically denied the suggestion that no one can enter her agricultural field without her permission. The Page 10 of 41 C/FA/2691/2000 JUDGMENT insurance company has not led any evidence to show that entry was restricted in the field and as such, it becomes clear that the members of the public do have a right to access. It was urged that the legal proposition is not to find out as to why members of the public would go to a particular place, but as to whether members of public have a right to access such place. In other words, the question why members of public would access such a place is immaterial.

4.7 Next, the learned advocate drew the attention of the court to the contents of the insurance policy to point out that the same was issued for agricultural use. It was submitted that the activity in question of threshing wheat bundles is purely an agricultural activity which was covered by the policy. Insurance is just another form of contract and because insurance is compulsory under the Act, section 147 provides for minimum requirement of coverage by the insurance policy, however, that certainly does not mean that the coverage of policy could not exceed the requirements of section 147. Since the policy was issued in respect of agricultural activities, the insurer would, therefore, be liable. It was contended that the policy is always issued for a vehicle and not for a person, so if the accident arises out of the use of a vehicle which is insured for a specific purpose (agricultural use in the present case), the insurance company would be liable. It was submitted that the driver was driving the vehicle at the instance of the owner and hence, it was within the terms of the policy and as such, there is no breach of condition. It was, accordingly, urged that the Tribunal was not justified in holding that the place where the accident had occurred was not a public place and in saddling the appellant with the liability of paying compensation to the Page 11 of 41 C/FA/2691/2000 JUDGMENT victim by exonerating the insurance company of its liability.

5. Mr. Hiren Modi, learned advocate for the appellant/claimant in First Appeal No.2159/2001 adopted the submissions made by Mr. Apurva Jani insofar as the issue regarding the subject land being a public place is concerned. In addition thereto, the attention of the court was drawn to the extracts of the village form No.7/12 of the land where the incident had taken place, to submit that the said land is of the ownership of the husband of the claimant and that she has a right to access thereon as a labourer and hence, the said place assumes the character of a public place.

5.1 On the question of the quantum of compensation awarded by the Tribunal, it was submitted that the appellant had been hospitalised for a period of one month and her hand was required to be amputated. Referring to the deposition of Dr. Shankarbhai Karsandas Mevada (Exh.43), it was pointed out that the doctor has assessed the permanent disability at 85% in relation to the left upper extremity. The attention of the court was drawn to Part II of Schedule I to the Workmen's Compensation Act and more particularly, items No.2 and 3 thereof, to point out that in case there is amputation below shoulder with stump less than 20.32 cm from tip of acromion, the percentage of loss of earning capacity is to be assessed at 80 and in case the amputation is from 20.32 cm from tip of acromion to less than 11.43 cm below tip of olecranon, the percentage of loss of earning capacity is 70. It was submitted that the aforesaid standards are required to be adopted in the present case where there is amputation of Humerus and as such, the Tribunal ought to have considered the percentage of Page 12 of 41 C/FA/2691/2000 JUDGMENT loss of earning capacity at 80 or 70%.

5.2 Next, it was submitted that though the age of the appellant was 33 years at the time of the incident, the Tribunal has applied a multiplier of 14, whereas, the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, has held that where the age of the deceased is between 31 to 35 years, a multiplier of 16 is required to be applied. It was further submitted that on account of the injury sustained by her, the appellant has to face a lot of embarrassment and has to face a lot of problems because of the permanent disability which she has suffered on account of the accident as a result whereof she is not able to work in the manner that she could, prior to the accident. Prior to the accident, she was able to maintain buffaloes and earn considerable income from selling milk; however, in view of the injury, she is not in a position to maintain cattle. She is also not in a position to do the household work and is, therefore, required to engage a maid. Moreover, on account of the injury, her hand has become deformed and she is not in a position to partake in the activities which she used to earlier. Under the circumstances, the Tribunal ought to have awarded a higher amount of compensation under the heads of pain, shock and suffering and loss of amenities. In support of his submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Neerupam Mohan Mathur v. New India Assurance Co. Ltd., 2013 ACJ 2122, wherein the High Court had granted additional 50% towards future prospects and had also considered the permanent disability at 70%, which judgment was upheld by the Supreme Court insofar as addition towards future prospects is concerned as Page 13 of 41 C/FA/2691/2000 JUDGMENT well as the extent of disability. It was submitted that in the facts of the present case, the Tribunal has not considered the prospective income and as such, an additional 50% of the actual income is required to be taken into consideration while computing the future loss of income. Reliance was also placed upon the decision of the Supreme Court in the case of Rajesh v. Rajbir Singh, (2013) 1 SCC 54, for the proposition that in case of self-employed persons or persons with fixed wages, where the age of the deceased is below 40 years, his actual income must be enhanced for the purpose of computation of compensation by 50%.

5.3 Reliance was also placed upon the decision of the Supreme Court in the case of K. Suresh v. New India Assurance Company Limited, (2000) 12 SCC 274. It was argued that if there is violation of any condition of the policy, the insurance company has to prove the same. In the facts of the present case, the insurance company has not examined any witness and as such, the contention that there is breach of the conditions of policy cannot be accepted. It was further submitted that the contention that less amount of premium has been paid because the policy is an agricultural policy is not pleaded anywhere and for the first time, such contention has been taken before this court. It was further submitted that the contentions with regard to limitations of the policy have not been argued before the Tribunal and as to what is the amount of premium payable in respect of a commercial policy has also not been brought on record and as such it is not permissible for the insurance company to raise such new contentions for the first time before this court, more so, as the same are pure questions of fact.

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6. Vehemently opposing the appeal, Mr. Rushang Mehta, learned advocate for Mr. Dakshesh Mehta, learned advocate for the respondent - insurance company submitted that the appeal at the instance of the appellant - owner is not legally maintainable as the owner had appeared before the Tribunal but had not filed any written statement nor had he pleaded anything before the Tribunal. In support of his submission, the learned advocate placed reliance upon the decision of a Division bench of this court in First Appeal No.1159/1994 rendered on 12th March, 2008 in the case of United India Insurance Company Limited v. Kamuben Dinubhai Patel.

6.1 Next, it was submitted that the place of accident is a private place and not a public place and that on a conjoint reading of the definition of 'public place' as defined under clause (34) of section 2 of the Act and section 147 of the Act, the insurance company is not liable to pay any compensation. Reliance was placed upon the decision of this court in the case of Oriental Fire and General Insurance Co. Ltd. v. Rabari Gandu Punja, 1981 GLR 1161, wherein the court observed that a combined reading of section 95(1)(b)(i) and section 96(1) of the Motor Vehicles Act, 1939 clearly shows that the statutory provisions enjoin the insurance company to compulsorily cover the risks of accident caused to third parties out of the user of the motor vehicle in a public place, subject of course to overall limits of liability in respect of any one accident as provided by section 95(2). The court was of the view that it is, therefore, apparent that before the insurance company can be satisfactorily made liable to make good the Page 15 of 41 C/FA/2691/2000 JUDGMENT claim of parties, put forward on account of the accidental injuries caused to third parties, it has got to be shown that death or bodily injuries to any person or third party was caused by or arising out of the use of the vehicle in a public place. If the death or bodily injury to third party is caused by use of the vehicle at a place which was not a public place, statutory requirements of section 95(i)(b)(1) to cover such risk would not arise at all. In the facts of the said case, the court held that the factory premises wherein the accident had taken place could not be said to be a public place and as such, the insurance company would not be statutorily liable to answer the claim of the claimants when the accident had not been caused in a public place. Reference was made to the decision of a Division Bench of this High Court in the case of Prakash Chemicals Private Limited v. Krishna Singh Sata Singh (supra) to submit that in the facts of the said case, the court had held that the definition of 'public place' under the Act is wide enough to include any place which members of public use and to which they have a right of access. That having regard to the facts of the said case, where the factory premises were large and the general public had access therein subject to permission being verified at the time of entry in the factory premises, the court held that the place of accident was a public place. The court was of the view that all places where the members of public and/or their property are likely to come in contact with the vehicles can legitimately be said to be in its view when the legislature made the relevant provisions for compulsory insurance. It was accordingly held that all places where the members of public have an access, for whatever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of 'public Page 16 of 41 C/FA/2691/2000 JUDGMENT place' in section 2(24) of the Act. Adverting to the facts of the present case, it was submitted that the place of accident is an agricultural field. Since it is an open place, it may be that it could be possible for someone to pass through. However, that by itself does not make it a public place because it is a private field. That merely because a place is an open place and is not fenced in, would not make it a public place. Besides, except for the bare say of the claimant, no evidence has been brought on record that in fact public had access to the said field.

6.2 Next, it was submitted that from the deposition of the claimant, it is apparent that the tractor was borrowed from the friend and owner of the tractor for their own use. The insurance company has issued policy for agricultural purpose to the owner for his own use only, which means work incidental to agriculture and not cultivation in the farm which is a private place. It was pointed out that the policy in question is issued for tractor and trailer, to submit that such policies are not for actual agricultural purpose but for activities incidental to agriculture. It was further submitted that the owner of the offending vehicle had given the vehicle to the claimant for their use, which is clearly in breach of the terms of the policy which has been issued only for the purposes of the owner and not for any other purpose. Therefore also, the insurance company is not liable to indemnify the owner. Referring to the policy in question, it was submitted that since the policy was for agricultural purposes only, the premium was quite low and the owner had also got exemption from road vehicle tax which is evident from the RTO book which has been exhibited. Referring to the deposition of the claimant, it was submitted that the same clearly reveals that on the eastern side of the Page 17 of 41 C/FA/2691/2000 JUDGMENT field there were hedges, the western side was open and there was a road going to Mahadev temple, on the northern side there was a hedge and the remaining three sides were open. Referring to the cross-examination of the claimant, it was pointed out that the agricultural field in question is a small field admeasuring 1½ vighas and is being cultivated. It was submitted that there is nothing in the deposition of the claimant or in the panchnama to show that the public had access to the field and that the field was being used as such, nor is it the case of the claimant that the public had access to the temple through their field. It was submitted that thus, on the evidence on record, it is evident that the place of incident is not a public place but is a private place and as such, in the light of the provisions of section 147 read with section 2(34) of the Act, the Tribunal has rightly exonerated the insurance company from its liability in respect of the accident in question.

6.3 Referring to the insurance policy, it was pointed out that the same is an 'Act only policy'. It was submitted that the policy being an Act only policy the liability of the insurance company is limited to the statutory liability only. It was argued that the policy has been issued to the owner, however, the accident had neither taken place in the field of the owner, nor was the owner driving the vehicle. Moreover, the vehicle which was insured by the insurance company was hired by the claimant from the owner and was not used by the owner for his own purpose. It was further submitted that the insurance policy has been issued for work incidental to agriculture and not for work in the fields and as such the risk of accidents which occur in the agricultural field would not be covered. In Page 18 of 41 C/FA/2691/2000 JUDGMENT conclusion, it was submitted that the impugned judgment and award passed by the Tribunal is just, legal and proper and does not warrant interference by this court.

7. In rejoinder, Mr. Apurva Jani, learned advocate for the appellant/owner submitted that the policy was issued for agricultural use. The tractor was used for threshing wheat bundles, which is purely an agricultural activity and is wholly covered by the policy. It was urged that the insurance is just another form of contract and because insurance is compulsory under the Motor Vehicles Act, 1988, section 147 provides for minimum requirements of coverage by the insurance policy. However, the same certainly does not mean that the coverage of the policy could not exceed the requirements under section 147 of the Act. According to the learned advocate in the facts of the present case, an agriculture policy had been issued and the tractor was used for agricultural purposes and hence, the insurer would be liable to indemnify the owner for any liability incurred on account of the accident. It was contended that the policy is always issued for a vehicle and not for a person, so if the accident arises out of use of a vehicle which is insured for a specific purpose, the insurance company would be liable. Besides, since the driver was driving the vehicle under the instructions of the owner, it was within the terms of the policy and, therefore, there is no breach of the conditions of the policy. In any case, the insurance company had not pleaded any breach of condition in the written statement and hence, it cannot be permitted to raise this plea at a belated stage. It was argued that by no means, the proposition that the insurance policy covered third party risks for agricultural activity outside the agricultural field can be accepted. It was Page 19 of 41 C/FA/2691/2000 JUDGMENT emphatically argued that agricultural activities would in all cases be inside a field and that activities incidental to agricultural activity may be outside the field, but the policy cannot be said to have been issued to cover third party risks not for agricultural activity but activities incidental to agricultural activity. It was contended that in the absence of any such restriction in the policy condition, the insurance company would be liable. Reliance was placed upon the decision of the Karnataka High Court in the case of United India Insurance Co. Ltd. v. Purushothama (supra). It was further submitted that the vehicle in question was not used for any commercial purpose nor was it hired to the claimant. Referring to the cross-examination of the claimant, it was pointed out that she has categorically stated that the tractor had been called in view of the relations between the parties and it was not hired and that her husband had to bear the diesel expenses. It was accordingly submitted that the contention that the tractor was used for commercial purpose and as such, there was a breach of the conditions of the policy, is without any basis.

7.1 As regards the contention raised on behalf of the insurance company that the appeal is not maintainable by the owner as he did not file any written statement before the Tribunal, it was submitted that section 173 of the Motor Vehicles Act provides for an appeal by any person aggrieved by an award of the Claims Tribunal and as such, law provides that any person aggrieved by the order of the Claims Tribunal may file an appeal. Since the appellant is aggrieved by the order of the Tribunal hence, he has filed the appeal.

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7.2         Dealing with the contentions raised by the learned

advocate for the appellant/claimant on the question of the quantum of compensation awarded by the Tribunal, Mr. Jani submitted that the monthly income determined by the Tribunal at Rs.1,500/- is on the higher side in the absence of any documentary proof in respect thereof and is, therefore, required to be reduced, more so, considering the income in the early 1990s. Insofar as the claim for future prospective income is concerned, it was submitted that the claimant herself had stated that she was illiterate. Therefore, her future prospects would be very limited. The learned advocate fairly conceded that in terms of the decision of the Supreme Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, a multiplier of 16 is required to be applied instead of

14. Lastly, it was submitted that having regard to the fact that the monthly income assessed by the Tribunal is on the higher side, the ends of justice would be met if the award passed by the Tribunal is maintained as it could be said that just amount of compensation had been awarded.

8. From the facts and contentions noted hereinabove, the principal question that arises for consideration is as to whether the place of incident viz., the agricultural field owned by the husband of the claimant can be said to be a "public place" within the meaning of such expression as defined under clause (34) of section 2 of the Act. In the present case, the claim petition had been filed under section 166 of the Act and as such, the present case would be governed by the provisions of Chapter XI and XII of the Act. Chapter XI of the Act bears the heading "Insurance of motor vehicles against their party risks"

and is comprised of sections 145 to 164. Section 145 is the Page 21 of 41 C/FA/2691/2000 JUDGMENT definition section. Section 146 provides for necessity for insurance against third party risk and forbids the use of a vehicle in a public place unless there is in force a policy of insurance complying with the requirements of the said Chapter in relation to the use of the vehicle by such person or with other person. Thus, the obligation to obtain an insurance policy under the statute is in relation to the use of a vehicle in a public place. The statute does not mandate obtaining of an insurance policy for use of vehicles in private places. Section 146 of the Act which bears the heading "Necessity for insurance against third party risk" prohibits the use of a vehicle in a public place by any person, except as a passenger, unless there is an insurance policy in force in relation to the use of such vehicle by that person or that other person, which complies with the requirements of the said Chapter. Thus, by virtue of section 146 of the Act it is mandatory to obtain an insurance policy complying with the requirements of Chapter XI, if a person desires to use a vehicle in a public place.

9. Section 147 of the Act provides for "Requirements of policies and limits of liability" and reads as under:

"147. Requirements of policies and limits of liability.- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -

(a) is issued by a person who is an authorised insurer; and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any Page 22 of 41 C/FA/2691/2000 JUDGMENT property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii)against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required-

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-

       (a)        engaged in driving the vehicle, or
       (b)        if it is a public service vehicle engaged as conductor

of the vehicle or in examining tickets on the vehicle, or

(c)if it is a goods carriage, being carried in the vehicle, or

(ii) to cover any contractual liability.

Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:

(a) save as provided in clause (b), the amount of liability incurred;

(b) in respect of damage to any property of a third party, a limit of rupees six thousand.

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the Page 23 of 41 C/FA/2691/2000 JUDGMENT date of expiry of such policy whichever is earlier.

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."

10. Thus, section 147 of the Act lays down that a policy of insurance to meet with the requirements of the said Chapter must be a policy which is issued by an authorised insurer and should insure the person or classes of persons specified in the policy to the extent stated in sub-section (2) thereof against any liability which may be incurred by him in respect of death or bodily injury to any person including the owner of the goods or his authorised representative in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. A conjoint reading of the above provisions makes it clear that the intention of the legislature is to provide insurance cover to third parties in Page 24 of 41 C/FA/2691/2000 JUDGMENT respect of accidents caused and arising out of use of vehicles in public places. An insurance policy that meets with the requirements of section 147 of the Act but does not cover any other risk is known as an "Act Only" policy and provides coverage only to the extent envisaged in section 147 of the Act. It is always open to parties to obtain an insurance policy which gives a wider coverage than that provided under the statute. However, insofar as the provisions of section 147 of the Act are concerned, an insurance policy, to meet with the requirements thereof, has to be issued in relation to the use of the vehicle in a public place. The fact that the policy limits the use of such vehicle for agricultural use, would, therefore not detract from the fact that the coverage under the said policy is limited to the statutory risk envisaged under section 147 of the Act, if the same in the nature of an "Act only" policy.

11. Adverting to the facts of the present case, a perusal of the insurance policy shows that it is a "Policy "A" (Act only)"

policy. Thus, the risk covered under the said policy is limited to the statutory risk provided under section 147 of the Act and as a natural corollary, the insurance company would be liable to the extent of the statutory liability imposed upon it under the Act. Another fact which is required to be noted is that against the column "Limitations as to use" it is stated "Agri". Thus, the liability of the insurance company under the policy is limited to the statutory risk in terms of section 147 of the Act, in respect of an accident that occurs when the tractor is used for agricultural purposes only.

12. Before examining the merits of the case, it may be germane to refer to the decisions on which reliance has been Page 25 of 41 C/FA/2691/2000 JUDGMENT placed by the learned advocates for the respective parties.

12.1 In Oriental Fire and General Insurance Company Ltd. v. Rabari Gandu Punja (supra), this court while considering the provisions of section 95(1) and 96(1) of the Act of 1939 which are in pari materia with section 147 and section 149 of the Act, held that before any insurance company can be satisfactorily made liable to answer a claim for damages arising out of the accidental injuries caused to a third party on account of the use of the insured vehicle, it must be shown that the vehicle was driven in a rash or negligent manner in a public place or the root cause of the accident must have originated during the time when the vehicle was used in a public place. In the facts of the said case, the accident had taken place within the compound of a tiles factory. The court held that before any place can be considered to be a public place, it must be proved to be one where the public will have a right of access. The court held that it is, therefore, obvious that private premises or compound of private factories where members of public can enter only upon express or implied permission of private owners of those premises cannot meet with the statutory requirements of section 2(24) of the Act of 1939. Having regard to the fact that the site of the accident was within the compound of a tiles factory, the court held that the members of the public could not go as a matter of right inside the factory premises and, therefore, the insurance company would not be statutorily liable to answer the claim of the claimant when the accident had not been caused in a public place.



12.2        In Prakash Chemicals Private Ltd. v. Krishna

                              Page 26 of 41
         C/FA/2691/2000                                     JUDGMENT

Singh Sata Singh (supra), a Division Bench of this court was dealing with a case where an automobile collision had occurred within the Indian Petrochemicals Limited (IPCL) campus involving two vehicles. The court was of the view that the above decision in the case of Oriental Fire and General Insurance Company Ltd. v. Rabari Gandu Punja was distinguishable on facts because the place of accident in the said case was in the compound of a small tiles factory. There were no well laid down roads within the factory premises as they have in the IPCL complex and that the factory was a small tiles factory where some labourers were working, and the truck in question, while being driven in the reverse direction, crushed to death a labourer woman. The court took note of the fact that the accident had taken place on the main internal road of the campus. The road was divided into two lanes - upper lane and lower lane, and the two lanes were separated by road dividers made of cement concrete. The two lanes of the road were tar surfaced lanes. The width of each lane was 23'5. Thus the road was a sufficiently wide road and was a tar road. There were electric poles at intervals on the road. At the time of hearing of the appeal, it was a conceded position that IPCL is a huge complex having a staff township within the premises, and quite a large number of vehicles used to enter the complex every day. The IPCL complex had about 10,000 employees and staff buses quite large in number might be plying within the complex. It was also not disputed that all sorts of persons having business or commercial relations within IPCL, such as contractors, businessmen, transporters, etc. have to visit the complex day in and day out. The evidence also revealed the existence of a medical centre or medical complex on the campus. The court was, accordingly, of the view that Page 27 of 41 C/FA/2691/2000 JUDGMENT having regard to the magnitude of the IPCL campus as described hereinabove, such a place could not be compared with the place of the accident involved in the case before it. The court observed that in the case before the learned Single Judge, there was nothing to show that a large number of persons had access to the tiles factory whereas in the facts before it, thousands of persons must be having access to the IPCL complex and it was to cater to their needs that tar roads had been laid with cement and concrete road dividers dividing the up lane and the down lane and electric poles had been fixed for proper use of lanes and roads at the night time. The court was accordingly of the view that these features of the evidence of the case before it would certainly distinguish the place of the accident in the case before them from the place of accident with which the learned Single Judge was concerned in the above referred decision. The court placed reliance upon the decision of a Full Bench of the Bombay High Court in the case of Pandurang Chimaji Agale v. New India Life Insurance Company Limited, Pune (supra) wherein it was held that the definition of 'public place' is an inclusive one. The definition in terms makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purpose of the Act, the only condition being that the public should have a right of access to it. The expression used in the definition is "a right of access" and not "access as of right". When the expression states that any place or stand at which passengers are picked up or set down by a stage carriage is a public place, it shows that it is not so much concerned with the ownership of the place as with its user. The court observed that by virtue of the last part of the definition, the expression would include any place, including private, where public passenger carrier picks Page 28 of 41 C/FA/2691/2000 JUDGMENT up or sets down passengers. The definition of 'public place' under the Act is, therefore, wide enough to include any place which members of public use and to which they have right of access. The right of access may be permissive/limited, restricted or regulated by oral or written permission, by tickets, passes or badges on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose. The court held that all places where the members of public and/or their property are likely to come in contact with the vehicles can legitimately be said to be in its view when the legislature made provisions for compulsory insurance. It will have, therefore, to be held that all places where the members of public have an access, for whatever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of 'public place' in section 2(24) of the Act. To hold otherwise would frustrate the very object of the said Chapter. Concurring with the view adopted by the Full Bench of the Bombay High Court, the Division Bench held that it is clear that it is not so much with the ownership of the place where the accident occurs that the legislature was concerned in defining the expression 'public place' as with the use of the place.

13. Examining the facts of the present case in the light of the above decisions of this court, it is the case of the appellant/claimant that the field owned by her husband is accessible to the public. In this regard, reference has been made to the deposition of the claimant as well to the panchnama which go to show that the agricultural field in Page 29 of 41 C/FA/2691/2000 JUDGMENT question is open on three sides and on one side, and on the fourth side there is a road which leads to the Mahadev temple and as such, the public can have access to the said land. However, as held by the Full Bench of the Bombay High Court to which the Division Bench of this court has agreed in the decision of the Prakash Chemicals (supra), the expression 'public place' is not much concerned with the ownership of the place as with its user. What is necessary is that the place must be accessible to the members of the public and be available for their use, enjoyment, avocation or other purpose. In the facts of the present case, there is no evidence on record to show that in fact a large number of people had access to the place in question. There is no evidence on record to show that the place was available for the use, enjoyment, avocation or other purposes of the public. Under the circumstances, merely by dint of the fact that the private field which was of the ownership of the claimant's husband was open on three sides and on the fourth side there was a public road and it was, therefore, possible for the public to have access to it, would not clothe it with the character of a 'public place'. Apart from the fact that the agricultural field is a private one, there is also no evidence on record to the effect that any road is passing through the said field or that the members of public have a right of way through the same. The agricultural field in question is a small one admeasuring about 1½ bighas and is used for cultivating wheat. The facts on record lead to the inevitable conclusion that no member of the public can pass through the agricultural field as a matter of right and the same is also not being used by the public for any purpose. In the case of P. Muse Khan v. M. Gopala Krishnaiah (supra) on which strong reliance was placed by the learned advocate for the Page 30 of 41 C/FA/2691/2000 JUDGMENT appellant-owner, the vehicular accident took place in a field where the offending vehicle was engaged to dig a bore well. At the time of the accident many villagers were present in the field and were watching the drilling operations. Thus, the place of accident in the said case was accessible to members of the public and in fact members of the public were present there. In the facts of the present case, the agricultural field in question was owned by the husband of the claimant who was working in the said field. No member of the public was present in the field nor is the description of the field and the other evidence on the record suggestive of the fact that the public in fact had access to the field except for the bare statement of the claimant which is a self serving one. Under the circumstances, the contention that the place of accident is a 'public place' does not merit acceptance.

14. On behalf of the appellants, various decisions have been cited in support of their case. Insofar as the decision of the Karnataka High Court in the case of United India Insurance Co. Ltd. v. Purushothama (supra) is concerned, the court has held that once the vehicle has been insured with the insurance company, unless there is a clause in the policy limiting the liability to the use of the vehicle in certain place and certain circumstances which it did not find in the policy, it was not permissible to argue that merely because the injury takes place at a place other than the conventional road, the liability of the insurance company is exonerated. In the facts of the present case, as noticed earlier, the policy in question is an "Act only policy" and as such, the liability of the insurance company to indemnify the insured is limited to the extent specified under sections 146, 147 and other provisions of Page 31 of 41 C/FA/2691/2000 JUDGMENT Chapter XI of the Act. The insurance policy in question being an "Act only" policy is governed by the provisions of Chapter XI and unless the requirements of section 147 of the Act are satisfied, the insurance company cannot be held liable. At the cost of repetition it may be stated that one of the requirements of section 147 of the Act is that the injury caused to any person or damage to any property of a third party should arise out of use of the vehicle in a public place. Therefore, unless the accident has occurred in a public place, the insurance company would not be liable to indemnify the insured in respect of any liability arising out of such accident.

15. As regards the decision of the Andhra Pradesh High Court in New India Assurance Co. Ltd. v. Are Poshanna @ Posalu (supra), the court has held that since the Motor Vehicles Act is a beneficial legislation and since the accident occurred in the field of a third party where the tractor was undertaking ploughing operations and ran over a worker in the field, the field where the accident took place also should be considered as a public place to make the insurer also liable. In the said decision, there is no discussion as to how and why the private place is required to be considered as a public place. Merely because the Motor Vehicles Act is a beneficial legislation, the definition of 'public place' cannot be given a wider meaning than expressly stated under section 2(34) of the Act. This court, therefore, respectfully does not concur with the above view of the Andhra Pradesh High Court.

16. As regards the decision of the Madhya Pradesh High Court in Smt. Hira Bai v. Pratap Singh (supra), in the facts of the said case, the driver was proceeding towards a public Page 32 of 41 C/FA/2691/2000 JUDGMENT road and at that juncture, the accident had occurred at a public place. The court observed that from the evidence on record it was evincible that though the place was not a public road but the public had a right to access to the same. There was no testimony that the public was debarred to enter into the said road. Keeping in view the connotative expanse of the term 'public place', the court was of the view that the place of accident was within the ambit of the expression 'public place' as envisaged under the provisions of the Act. The above decision is distinguishable in facts with the facts of the present case, inasmuch as, in the said case, the accident had taken place on a road which though private, the public had a right to access the same. In the present case, the place of accident is an agricultural field to which the public did not have a right to access. The said decision, therefore, does not, in any manner, come to the aid of the appellants.

17. Insofar as the decision of the Madhya Pradesh High Court in the case of Rajendra Singh v. Tulsabai (supra) on which reliance had been placed on behalf of the appellants is concerned, in the facts of the said case, the accident had taken place at a factory by the name of Diamond Cement Factory to which public had access and vehicles were going there for business purposes. It is in those facts that the court had held that the accident had occurred at a public place. The said decision is in line with the decision of this court in the case of Prakash Chemicals Pvt. Ltd. (supra) as well as the decision of the Full Bench of the Bombay High Court. However, the said decision having been rendered in a case where the accident had taken place at a place where public had a right to access; the same would not in any manner come to the aid of the Page 33 of 41 C/FA/2691/2000 JUDGMENT appellants.

18. In the light of the above discussion, insofar as the principal question involved in the present case is concerned, it is held that the place of accident is not a 'public place' within the meaning of the said expression as defined under sub- section (34) of section 2 of the Act.

19. Having held that the place of accident is not a public place, the next question that arises for consideration is as to whether the insurance company can be held liable for payment of compensation to the claimant.

20. On behalf of the appellants, it has been contended that since under the policy the use of the vehicle was limited for agriculture, the insurance company is liable as the accident had taken place during the course of agricultural activities. Without going into the question as to whether the tractor had been hired for commercial purpose or was given to the husband of the appellant - claimant on friendship basis, it may be noted that the policy is an 'Act only' policy and as such the risk covered thereunder was limited to the extent provided under section 147 of the Act. The limitation as to user for agriculture is a restriction on the use of the vehicle and would therefore, narrow down coverage of the policy and not widen its scope to cover accidents which do not fall within the ambit of section 147 of the Act. The question as to whether it is permissible for the insurance company to place any restrictions which narrow down the scope of the statutory limits of liability under the policy does not fall for determination in the present case. It is an undisputed position, as is evident on a plain Page 34 of 41 C/FA/2691/2000 JUDGMENT reading of the Certificate of Insurance (Exhibit-64) that the policy in question is an 'Act only' policy and as such for the purpose of holding the insurance company liable, the ingredients of section 147 of the Act are required to be satisfied. As discussed hereinabove, one of the basic requirements of section 147 of the Act is that the accident should have taken place in a 'public place'. Therefore, where a policy is an 'Act only' policy, unless the accident has occurred in a 'public place' the insurance company cannot be held liable.

21. The appellant - claimant has also challenged the quantum of the compensation awarded by the Tribunal on the following grounds:

(1) The Tribunal has considered the disability at 25% only though in terms of the certificate given by the concerned doctor, the disablement was to the extent of 85% of the left upper extremity;

(2) The Tribunal has not considered future prospective income;

(3) The multiplier adopted is 14 whereas the actual multiplier should be 16 and (4) The amounts awarded under the heads of pain, shock and suffering and loss of amenities are on the lower side.

22. Insofar as the extent of disability suffered by the Page 35 of 41 C/FA/2691/2000 JUDGMENT appellant-claimant is concerned, it may be germane to refer to the deposition of Dr. Shankarbhai Karsandas Mevada who has deposed that the permanent disability suffered by the appellant was 85% of the upper limb. In his cross-examination, he has admitted that such disability can be considered at 50% while considering the body as a whole. The certificate (Exh.45) issued by the said doctor also reveals that the appellant had got traumatic amputation of left upper arm at U/3 level, admeasuring 5 inches below the acromion process (U) side scapula. Considering the said injury, her permanent partial disability came to be assessed at about 85% in relation to left upper extremity.

23. On behalf of the appellant - claimant, it has been contended that the disability of the deceased had to be taken at 70% or 80% as provided under the Schedule to the Workmen's Compensation Act. In this regard, reliance had been placed upon the decision of the Supreme Court in the case of Neerupam Mohan Mathur (supra). Reliance was also placed upon the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, wherein the court has observed that the Tribunal while considering the medical evidence with regard to injury and more particularly, the extent of permanent disability should also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries in the case of workmen. It was submitted that under the circumstances, this being a case of amputation which is a scheduled injury, the extent of permanent disability should be decided in terms of the Schedule to the Workmen's Compensation Act and accordingly, Page 36 of 41 C/FA/2691/2000 JUDGMENT the disability should be assessed at 70 or 80. On the other hand, Mr. Rushang Mehta, learned advocate for the insurance company has pointed out that the Schedule to the Workmen's Compensation Act is applicable in case of an injury sustained by a workman to submit that in the present case, the appellant is at best a self-employed person and not a workman and as such, the Schedule to the Workmen's Compensation Act cannot be made applicable to the facts of the present case. It may be noted that on behalf of the appellant, a contention had been raised before the Tribunal that compensation should be awarded in terms of the schedule to the Workmen's Compensation Act; however, such contention had been turned down on the ground that the applicant was not a workman. In the opinion of this court, the reasoning adopted by the Tribunal cannot be said to be so unreasonable or erroneous so as to warrant interference.

24. From the evidence which has come on record, the appellant has sustained injury on her left hand on account of which it had to be amputated, and is therefore, deprived of the use of her left hand. The permanent disability incurred by the appellant in terms of the certificate issued by the doctor, is 85% of the upper limbs and 50% qua the body as a whole. The Tribunal upon appreciation of the evidence on record has assessed the loss of earning capacity on account of the disability incurred by the appellant at 25%. In the opinion of this court, considering the nature of the permanent disability suffered by the appellant the loss of earning capacity as assessed by the Tribunal is on the lower side and is required to be increased. In the ordinary course, the disability qua a part of the body is reduced to 50% thereof when considered in Page 37 of 41 C/FA/2691/2000 JUDGMENT relation to the body as a whole. Under the circumstances, in the opinion of this court, it would be more appropriate to consider the loss of earning capacity at 50% of the permanent disability assessed by the doctor qua the upper limbs i.e. 85%, instead of referring to the Schedule to the Workmen's Compensation Act which relates to injuries suffered by workmen. The loss of earning capacity is, according, assessed at 43% [50% of 85%].

25. The next ground raised by the learned advocate for the appellant is that the Tribunal has not considered the aspect of future prospective income while computing the annual income of the appellant. In this regard, it may be noted that the Supreme Court in the case of Rajesh v. Rajbir Singh, (2013) 9 SCC 54, has held that in case of self-employed persons or persons with fixed wages, the actual income of the victim must be enhanced for the purpose of computation of compensation by 50% where the age of the victim is below 40 years at the time of the accident. In the facts of the present case, admittedly, the appellant was aged about 33 years at the time of the accident and as such, the Tribunal ought to have made an addition of 50% of the actual income to the actual income for computing the future prospective income.

26. The Tribunal has applied a multiplier of 14 for the purpose of computing the future loss of income. In this regard, the learned advocate for the owner as well as for the insurance company have fairly conceded that in view of the decision of the Supreme Court in the case of Sarla Verma (supra), a multiplier of 16 ought to have been applied.

Page 38 of 41

C/FA/2691/2000 JUDGMENT

27. The Tribunal has awarded Rs.15,000/- towards pain, shock and suffering. Having regard to the fact that the left hand of the appellant/claimant has been amputated, the amount of Rs.15,000/- appears to be a bit on the lower side. Considering the facts and circumstances of the case and the date of the accident, the court is of the view that compensation of Rs.25,000/- under the head of pain, shock and suffering would be appropriate. The Tribunal has awarded Rs.10,000/- under the head loss of amenities. Having regard to the fact that the appellant is no longer in a position to do the work that she was doing prior to the accident and has to employ a maid to do the household work and is no longer able to carry on the activities which she was previously carrying on, including being able to enjoy herself in the manner she was enjoying earlier, the court is of the view that it would be just and proper if an amount of Rs.25,000/- is awarded towards loss of amenities of life also.

28. In the light of the above discussion, the compensation payable to the appellant - claimant can be worked out as under:

Monthly income                          : Rs.1500/-
Future prospective income               : Rs.1500 + Rs.750 (50% of
                                           Rs.1500) = Rs.2250/-
Loss of earning capacity
per month                               : Rs.2250/- x 43%
                                           = Rs.967.50
Annual loss of income                   : Rs.967.5 x 12 = Rs.11610/-
Future loss of income                   : Rs.11610 x 16 [multiplier]
                                           = Rs.1,85,760/-
Pain, shock and suffering               : Rs.25,000/-

                                 Page 39 of 41
           C/FA/2691/2000                                 JUDGMENT



Loss of amenities as well as
medical treatment                     : Rs.10,000/-
Transportation and attendant
charges                               : Rs.5000/-
Actual loss of income                 : Rs.4800/-
Total compensation                    : Rs.2,65,560/-.

The Tribunal has awarded compensation of Rs.1,07,800/-. The appellant-claimant would therefore, be entitled to additional compensation of Rs.1,57,760/- subject to payment of requisite court fees in respect of the compensation awarded in excess of her claim.

29. In the light of the above discussion, First Appeal No.2691/2000 filed by the appellant - owner is hereby dismissed. First Appeal No.2159/2001 is hereby allowed. The appellant shall be entitled to recover additional compensation of Rs.1,57,760/- with running interest at the rate of 7.5% per annum from the date of filing the claim petition till realisation thereof from the opponent No.1 - owner.

30. It may be noted that vide order dated 4 th May, 2001 passed by this court in Civil Application No.9969 of 2000 in First Appeal No.2691/2000, this court had directed the appellant/owner to deposit a further sum of Rs.75,000/- and had directed that the amount deposited with the court be transmitted to the Tribunal and the said amount be paid to the opponent No.1-claimant. Pursuant to the said order, the amount as directed by the court had been deposited before the Tribunal and the amount of Rs.1,00,000/- had been withdrawn by the claimant.

Page 40 of 41

        C/FA/2691/2000                                      JUDGMENT




31.        At     this   stage,     the     learned   advocate    for   the

appellant/owner in First Appeal No.2691/2000 has prayed that this order be stayed for a further period of six weeks so as to enable them to approach the higher forum. Such request is objected to by the learned advocate for the respondents - claimants. Having regard to the facts and circumstances of the case, the request is not accepted ( Harsha Devani, J. ) hki Page 41 of 41

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