Rajasthan High Court - Jodhpur
Panney Singh vs Sarad Kumar on 1 February, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO
CONNECTED APPEALS
Order dtd: 1/2/2012
1/27
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
1. S.B. Civil Misc. Appeal No.596/1997 Panney Singh V/s Sharad Kumar and ors.
2. S.B. Civil Misc. Appeal No.767/1997 New India Assurance Co. Ltd. V/s Panney Singh and ors.
3. S.B. Civil Misc. Appeal No.726/1997 (with Cross-objections of claimants inward No.34 dtd.3.1.1998) New India Assurance Co. Ltd. V/s Smt. Ratan Kanwar and anr.
Date of Order ::: 1st February, 2012
PRESENT
HON'BLE DR. JUSTICE VINEET KOTHARI
REPORTABLE.
Mr. Anil Bhandari for the claimant - Panne Singh. Mr.Rajesh Panwar for claimants Ratan Kanwar and ors. Mr.Jagdish Vyas for the respondent - Insurance Company Mr.L.K. Purohit, for the RSRTC.
---
1. The claimant injured Panne Singh has preferred this appeal before this Court under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement of the compensation awarded to him by judgment dtd.31.5.1997 passed by the learned MACT, Sojat, Dist. Pali in his claim petition No.171/1992, which was filed for Rs.12,55,716/- and the learned Tribunal has awarded compensation to the tune of Rs.6,93,000/- with interest @12% to be paid from 24.3.1986, the date of filing claim petition till the date of payment.
2. On 29.9.1985 in the night at about 10.30 p.m., when the S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 2/27 injured - claimant was travelling in Super Deluxe bus Bo.RNP 501, the same met with accident with truck No.RRZ 6938 coming from opposite side and the present claimant - appellant's right hand got crushed and ultimately had to be amputated from shoulder and one more person Sumer Singh travelling at seat No.35 lost his life. The claimant - appellant Panne Singh was a practicing advocate of Rajasthan High Court and was aged about 34 years on the date of accident.
3. The learned Tribunal while determining the compensation has taken only the income of Rs.30,000/- per year and applying the multiplier of 18 has awarded a sum of Rs.5,40,000/- under the head of 'loss of income' and non-pecuniary losses for physical and mental agony to the extent of Rs.50,000/- and permanent disability to the extent of Rs.25,000/- and Rs.45,000/- for transportation for coming from residence to Court, Rs.3000/- for medical treatment and Rs.5000/- for other expenses, thus, a total sum of Rs.6,93,000/- was awarded by the learned Tribunal.
4. Initially an objection was raised by the respondent - New India Assurance Company of truck and bus that since the accident had taken place on 29.9.1985 prior to enforcement of 1988 Act, the liability of the Insurance Company would be limited under Section 95 of the Old act. However, in view of consistent decisions of this Court S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 3/27 and various other High Courts in following cases, to the effect that where the total premium was charged at Rs.240/- instead of Rs.200/-, unlimited liability for public risk would be covered and there being no contrary view of this Court on this issue, this issue is no longer open and this Court is of the opinion that the respondent - Insurance Companies would be liable to unlimited extent to the extent the owner of the offending vehicles would be liable to pay compensation as determined by the learned Tribunal under Section 166 of the Act. Since the injured claimant was travelling in bus, he was third party qua the insurer of the Truck, another offending vehicle and in view of following decisions, the liability of insurer would be unlimited even under Section 95 of the Motor vehicles Act, 1939.
i) 2004 RAR 519 (Raj.) - National Insurance Company Ltd. v/s Laxmi.
ii) 2004 RAR 525 (Raj.) - New India Assurance Company Ltd. V/s Smt. Halima and ors.
iii)2011 ACJ 2029 (Delhi)- Neeta Trehan and ors. V/s Gopal Krishan and ors.
iv)1999 ACJ 790 - Hastimal Lodha V/s Shakuntala Kumari.
v) 1999 ACJ 988 - Tulsiram Agarwal V/s Manjinder Singh and ors.
vi)(2006) 1 WLC 666 - National Insurance Company Ltd. V/s Hasti Mal Lodha.
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 4/27
5. In the case of National Insurance Company Ltd. V/s Laxmi (supra), the Division Bench of this Court has observed as under:
"22. This brings to the facts of the present case. There is no dispute about the finding that the premium charged by the Insurance Company was in excess of "Act only Policy" and was under Heading B "liability to public risk", which was indicated at Rs.240/- along with other premium with which we were not concerned presently.
The terms of policy which defined the liability to third parties at page two of the footing is vitally different than what was before the Supreme Court in Keshav Bahadur's case (supra). On the principal clause, the terms of liability may be quoted below:
1. Subject to the limit of liability the Company will indemnify the insured against all sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of
(i) death of or bodily injury to any person caused by or arising out of the use (including the loading and /or unloading) of the Motor Vehicle.
(ii)Damage to property caused by the use S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 5/27 (including the loading and/or unloading) of the Motor Vehicle.
Provided always that
(a) The Company shall not be liable in
respect of death, injury or damage caused or arising beyond the limits of any carriage way or thoroughfare in connection with the bringing of the load to the Motor Vehicle for loading thereon or the taking away of the load from the Motor Vehicle after unloading therefrom.
(b) Except so far as is necessary to meet the requirements of Sec.95 of the Motor Vehicles Act, 1939 the Company shall not be liable in respect of death or bodily injury to any person in the employment of the insured arising out of and in the course of such employemnt.
(c) Except so far as is necessary to meet the requirements of Sec.95 of the Motor Vehicles Act, 1939 in relation to liability under the Workmen's Compensation Act, 1923 the Company shall not be liable in respect of death or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 6/27 upon or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.
(d) The Company shall not be liable in respect of damage to property belonging or held in trust by or in the custody or control of the insured or a member of the insured's household or being conveyed by the Motor Vehicle.
(e) The Company shall not be liable in respect of damage to any bridge and/or weigh bridge and/or viaduct and/or to any road and/or anything beneath by vibration or by the weigh of the Motor Vehicle and/or load carried by the Motor Vehicle.
(f) The Company shall not be liable in respect of damage to property caused by sparks or ashes from the Motor Vehicle or caused by or arising out of the explosion of the boiler of the Motor Vehicle.
(g) The Company shall not be liable in respect of death or bodily injury caused by or arising out of the explosion of the boiler of the Motor Vehicle unless such death or injury is caused by or arises out of the use of the Motor S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 7/27 Vehicle in a public place in India within the meaning of the Motor Vehicles Act, 1939.
23. A perusal of the aforesaid terms show that under principal clause, the Insurance Company accepted its liability towards third party injuries co-extensive with legal liability of the owner of vehicle. By providing various clauses under provisos it limited its liability to Act only liability in respect of matters covered by one or other of the provisos. Under none of the provisos limit of liability towards bodily injury or death caused to a third party has been restricted to statutory liability though liability to indemnify passengers has been limited to statutory liability. So also liability towards employees has been also limited to the extent provided under the Workmen's Compensation Act.
24. No exception has been made to restricting liability undertaken by the Insurance Company to the extent the insured will become legally liable to pay in respect fo death or bodily injury to third party caused by or arising out of use. Therefore, in our opinion, under policy, the appellant specially undertook unlimited liability to indemnify the insured towards the third party by not S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 8/27 excluding the liability of the insured in respect of claims arising out of death or bodily injury caused to the third party. Therefore, the Motor Accident Claims Tribunal as well as the learned Single Judge were right in their conclusion. The liability of the Insurance Company on demand of additional premium was unlimited towards third party under the terms of the policy."
6. In the case of Hastimal Lodha V/s Shakuntala Kumari (supra), this Court has observed as under:
"14. In the present case in hand, a premium of Rs. 240 has been charged by the insurance company to cover the liability to public risk which is higher than the 'Act only' premium of Rs. 200. Therefore, in view of the above decisions the liability of National Insurance Co. Ltd. in these appeals would be unlimited and the insurance company is, therefore, liable to meet out all third party liability claims and the insurance company cannot avoid the liability to pay the awarded amount to the claimants."
7. In the case of Neeta Trehan V/s Gopal Krishjan and ors. (supra), Delhi High Court in para 15, 18 and 19 has observed as under:
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 9/27 "15. Where obtaining of an insurance cover is made mandatory by statute, the contract is to be interpreted in the light of statutory provisions. In case of motor vehicles, obtaining of an insurance cover by the owners of vehicles is a statutory requirement. Thus, an insurance policy has to be interpreted keeping in view the statutory provisions and the rules of tariff as framed by the Advisory Board. Under the Tariff Rules two separate tariffs are provided for 'Act Only Liability' and for 'Public Risk'. It cannot be said that the Advisory Board provided tariff for 'Act Only Liability' as a superfluous phenomenon. The Advisory Board was having in mind that where the owner wants to take an insurance policy covering the minimum liability under Section 95 of the Act, then the premium should be different. If the owner wants wider liability then the premium should be different and that is the reason that for 'Act Only Liability', a premium of Rs. 200/- was provided and for 'Public Risk', a premium of Rs. 240/-
was provided. Public risk is a wider term and takes into account the entire risk faced by the owner for bringing vehicle on road. If there had been no compulsion under the Act to obtain an insurance policy, the only insurance S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 10/27 cover which owner could have obtained from an insurance company for covering public risk would have been this that he would pay Rs. 240/- and get the public risk covered. If the Act would have not prescribed any limit, the public risk would naturally have been unlimited. The Act prescribed that every owner of vehicle should get insurance cover covering a minimum amount. Beyond that, the Act did not provide anything. It is under these circumstances that the Tariff Advisory Committee prescribed separate premium for 'Act Only Policy' and separate premium for a 'Public Risk Policy'. I, therefore, consider that the 'Public Risk' premium would cover unlimited amount of risk and would not cover a limited amount of risk.
18. There is another aspect to be kept in mind. When an owner approaches insurance agent for insurance, he is told what would be the tariff payable by him and on payment of tariff, an insurance certificate or cover note is issued. The contract of insurance, thus, stands concluded on receipt of tariff/premium in terms of the tariff schedule as laid down by Advisory Board. Insurance policy is subsequently mailed to owner by insurance company. If insurance company unilaterally inserts a clause in the policy which is contrary to S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 11/27 tariff regulations, such a clause is not binding. All insurance policies are in the shape of one standard performa used for different kinds of coverage. If while sending insurance policy to owner the company official does not score off non-applicable clauses or inserts a limited liability clause which is contrary to the tariff charged from owner, such a clause is not binding.
19. I, therefore, consider that the liability of insurance company in this case was unlimited and not limited since the insured had paid tariff/premium of Rs. 240/- for liability to 'Public Risk' and not Rs. 200/- for 'Act Only Liability'."
8. In the case of Tulsiram Agarwal V/s Manjinder Snigh and ors.(supra), this Court has observed as under:
"5. From the copy of the insurance policy filed before the learned Tribunal, it is found that a premium of Rs. 240 has been charged by the insurance company for the liability to public risk. It has been admitted before me at Bar by both the sides that Rs. 200 was the premium at the relevant time chargeable for the 'Act only' policy, while the premium of Rs. 240 is chargeable in case of S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 12/27 liability to third party public risk. This, in my opinion, means that extra premium of Rs. 40 was charged by the insurance company for covering the liability for the death or bodily injury of the third party, and as such, the liability of the offending vehicle would not be as per Act, but would be unlimited. In the case of Draupadi Devi v. Inder Kumar reported in 1998ACJ418, this Court has held that:
Be that as it may, even if we accept that Rs. 200 was the premium for the 'Act only' policy and Rs. 240 was the premium for the liability to the 'public risk', then also it is difficult to hold that Rs. 40 were not collected by the insurer for covering the risk of death or bodily injury of the third party the only inference that can be drawn is that Rs. 40 were charged extra for covering the liability for the death or bodily injury of the third party. It has to be held that the insurance company had accepted unlimited liability in respect of the death and bodily injury of the third party.
6. In the case of New India Assurance Co. Ltd. v.
Pushpa Kakkar reported in 1993ACJ328, it has been held by the Delhi High Court that:
a sum of Rs. 240 has been charged by the insurance company, respondent No. 2, to cover third party liability which premium is more than the 'Act only' premium of Rs. 200, as such, I find force in the arguments of the learned Counsel for the petitioners that the liability of insurance company would not be as per the Act which is S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 13/27 Rs. 1,50,000 but would be unlimited.
7. In the present case in hand, a premium of Rs. 240 has been charged by the insurance company to cover the liability to public risk which is higher than the 'Act only' premium of Rs. 200. Therefore, in view of the above decisions, the liability of the insurance company, respondent No. 8, would be unlimited and the insurance company is, therefore, liable to meet out all third party claims and it cannot avoid the liability to pay the awarded amount to the claimants. The insurance company, respondent No. 8, is obviously liable to pay the entire amount of compensation awarded by the learned Tribunal along with interest thereon, jointly and severally".
9. For the aforesaid reasons, the appeal No.767/1997 New India Assurance company V/s Panne Singh and ors. deserves to be dismissed and the same is accordingly dismissed.
10. Now coming to the claim of the appellant for enhancement of compensation awarded, the learned counsel for the appellant Mr. Anil Bhandari submitted that at the time of accident, the appellant - claimant was at the beginning of his law career as an advocate and relying upon the following judgments in the case of R.D. Hattangadi V/s M/s Pest Control (India) Pvt. Ltd. reported in S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 14/27 1995 DNJ (SC) 81 in which an advocate suffered similar injuries of paraplegic, he submitted that compensation deserves to be enhanced suitably. He also relied upon the decision of the Hon'ble Supreme Court in the case of Sri Laxman V/s Divisional Manager, Oriental Insurance Company Ltd. reported in MACD, 2011 (SC) 188 and Ibrahim V/s Raju reported in MACD 2011 (SC) 196.
11. On the other hand, Mr. Jagdish Vyas, learned counsel appearing for the Insurance company submitted that the compensation awarded is just and proper and since the learned Tribunal has already applied the appropriate multiplier of 18 at Rs.30,000/- for the year 1985-86, no further enhancement is called for. He submitted that the injured - claimant was engaged in the profession of advocate and despite amputation of his right hand, it cannot be said that he completely lost his working capacity and therefore, the compensation awarded was just and proper. He relied upon the case of MACD 2011 (SC) 33 - Raj Kumar V/s Anil Kumar.
12. In the case of Rajkumar V/s Anil Kumar (supra). the Hon'ble Supreme Court in para 10 held as under:
"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 15/27 what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 16/27 need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."
13. From the above, it is clear that in case of amputation, the appropriate physical and functional disablement may be assessed around 60% as per the aforesaid decision. Though it is true that extent of disability and loss of earning capacity would depend upon S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 17/27 the nature of business or profession of injured, but in the present case, the claimant - appellant is practising advocate of this Court. Looking to the nature of injuries, namely, amputation of right hand from shoulder, it cannot be said that the claimant - appellant has not been crippled in his working. The level of efficiency, which an advocate with normal limbs, is certainly crippled to a large extent by such amputation and Ex.84 medical certificate produced by the claimant in the present case establishes permanent disability to the extent of 85%. The said certificate has been proved by Dr. M.K. Aseri of Dr. S.N. Medical College, Jodhpur and Mahatma Gandhi Hospital. Therefore, the disability to the extent of 85% is considered proper and proved on the basis of aforesaid evidence. The said judgment has been discussed in the later decisions of Hon'ble Supreme court in the case of Sri Laxman V/s Divisional Manager reported in MACD 2011 (SC) 188. In para 11, 12 and 13 of the said judgment, the Hon'ble Supreme Court held as under:
"11. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court considered some of the precedents and held:
"The provision of the Motor Vehicles
Act, 1988 ("the Act", for short) makes it
clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 18/27 object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 19/27
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads
(i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and
(vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
(emphasis supplied)
12. The ratio of the above noted judgments is that if the victim of an accident suffers permanent S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 20/27 or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earning and victim's inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.
13. In the light of the above, we shall now consider whether the compensation awarded to the appellant is just or he is entitled to enhanced compensation under any of the following heads:
(i) Loss of earning and other gains due to the accident.
(ii) Loss of future earning on account of the disability.
(iii) Expenses for future treatment.
(iv) Compensation for pain, suffering and trauma caused due to the accident.
(v) Loss of amenities including loss of the prospects of marriage.
(vi) Loss of expectation of life."
14. In the case of Ibrahim V/s Raju reported in MACD 2011 (SC) 196 decided on 31.10.2011, the Hon'ble Supreme Court again discussing the various judgments even increased the compensation beyond the compensation claimed by the claimant and S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 21/27 as against claim of Rs.3,00,000/- looking to the nature of injuries, the Hon'ble Supreme Court awarded compensation at Rs.6,00,000/- with interest @6% per annum from the date of filing of claim petition. The relevant part of para 21 and 22 of the said judgment is reproduced hereunder for ready reference:
"21. We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lacs only with interest and cost. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440/- to Rs.6 lacs. This approach is in tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 (P&H) and observed:
"For the reasons discussed above, in our view, S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 22/27 under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just"
compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition."
22. In the result, the appeal is allowed.
The impugned judgment is modified and it is declared that the appellant shall be entitled to total compensation of Rs.6 lacs with interest at the rate of 6% per annum from the date of filing the claim petition. If respondent No.3 has already paid the compensation in terms of the award of the Tribunal and the impugned judgment, then it shall pay the balance amount with interest at the rate of 6% per annum on the enhanced amount of compensation within a period of 3 months. If the amount awarded by the Tribunal and the High Court has not been paid so far, then respondent No.3 shall pay the total amount of Rs.6 lacs to the appellant with interest at S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 23/27 the rate of 6% per annum within the said period of 3 months."
15. Coming to the facts of the present case, this Court is of the opinion that average yearly income of Rs.30,000/- taken by the learned Tribunal for the year 1985-86 is rather conservative estimate particularly looking to the nature of profession in which the claimant - injured was engaged that of advocate, whose professional income normally rises with lapse of period as it is well known that the advocates earn much better in their later life of profession than in earlier years. The claimant had been President of Jodhpur University Students Union and Sarpanch of Gram Panchayat and thus, had an active, social, political and professional life. It is true that a practicising advocate does not become totally non-functional or 100% crippled, but normal efficiency, personality and even handling of law books, files and records of his clients are certainly adversely affected if right hand of an advocate - injured is unfortunately required to be amputated from its base i.e. shoulder. Even though factor of 18 takes care of future loss of income on this account, this Court is of the opinion that average annual income of Rs.30,000/- taken by the learned Tribunal is on the lower side especially future prospects of increase in such professional income is to be taken into account, therefore, the same deserves to be atleast increased to Rs.60,000/- per year. Thus, enhancement of Rs.5,40,000/- under the head of "loss of income" on account of said permanent disability is considered S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 24/27 appropriate and the impugned award to this extent deserves to be modified. Further under the head of non-pecuniary losses, which are determined by Tribunal to the extent of Rs.1,50,000/- also deserve to be enhanced. The said non-pecuniary losses under the various heads like mental and physical agony, loss of enjoyment of normal life, assistant/servant charges and transportation charges for coming to Court which at the time of claim petition was Rs.10 per day is now stated to be 250/- per day also deserve to be enhanced. Taking a just and proper view of the matter, increasing inflation in the cost of transportation etc., the said sum of Rs.1,50,000/- further also deserves to be doubled and thus, a sum of Rs.1,50,000/- deserves to be enhanced under the head of non-pecuniary losses. Thus, a total sum of Rs.6,90,000/- (Rs.5,40,00/- + 1,50,000/-) on account of enhancement of compensation deserves to be awarded in the present case. The said enhancement would be payable to the claimant - appellant with interest @8% per annum from the date of award of the Tribunal dtd.31.5.1997 till the date of payment, enhanced amount would be payable with interest @8% per annum as awarded by the Hon'ble Supreme Court in the case of Sri Laxman (supra). In para 22 of the said judgment, the Hon'ble Supreme Court has observed as under:
"22. In the result, the appeal is allowed.
The impugned judgment is set aside and it is declared S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 25/27 that the appellant shall be entitled to total compensation of Rs.8,37,640/- with interest at the rate of 8% from the date of filing the petition till the date of realisation.
Respondent No. 1 is directed to pay the balance amount of compensation to the appellant with interest within a period of three months from the date of receipt/production of the copy of judgment by preparing a draft in his name."
17. With this modification, the appeal of the claimant - appellant is allowed and said enhancement with interest @8% shall be paid to the claimant within a period of three months from today.
18. By an interim order dtd.8.1.2001 passed in connected appeal No.767/1997 - New India Assurance Company Limited V/s Panney Singh and ors. after hearing both the parties, the coordinate bench of this Court had directed that "execution of the impugned award as against the appellant shall remain stayed provided the appellant has deposited in all a sum of Rs.1,70,000/- as principal amount and proportionate interest thereon. Whatever amount has so far been deposited by the appellant shall be accounted for in this amount of Rs.1,70,000/- and the remaining amount of interest etc. whichever remains outstanding shall be deposited by the appellant within a period of one month from today."
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 26/27
19. The learned counsel for the Insurance Company Mr. Jagdish Vyas submitted that the said amount with interest has already been deposited. The Insurance Company shall, therefore, pay remaining amount under the award of the Tribunal with the same interest @12% per annum as directed by the learned Tribunal computed from the date of filing of claim petition till the date of award i.e. 31.5.1997 and after the date of award, the aforesaid remaining amount and present enhanced amount of Rs. 6,90,000/- with interest @8% per annum within a period of 3 months from today and the amount may be disbursed to the claimant.
20. So far as appeal No.726/1997 - New India Assurance Co. Ltd. V/s Smt. Ratan Kanwar is concerned, the same deserves to be dismissed for the reasons given above for CMA No.767/2009 - New India Assurance Co. Ltd. V/s Panne Singh and ors. but as far as cross-objections for enhancement filed by claimants are concerned, having heard the learned counsel for the parties, the amount of compensation of Rs.4,92,000/- for the death of her husband Sumer Singh in the said accident is increased by adhoc sum of Rs.50,000/- in view of age (38 years) of the deceased and future prospects of increase in salary being taken into account. Such enhanced amount would be paid within a period of three months with interest @8% per annum from the date of award dtd.31.5.1997 till the date of payment.
S.B.CMA NO.596/1997- PANNEY SINGH V/S SHARAD KUMAR AND ORS. AND TWO CONNECTED APPEALS Order dtd: 1/2/2012 27/27
21. Accordingly, the appeal No.596/1997 - Panney Singh V/s Sarad Kumar and anr. is allowed. Appeal No.767/1997- New India Assurance Co. Ltd. V/s Panney Singh and ors. and appeal No.726/1997 - New India Assurance Co. Ltd. V/s Smt. Ratan Kanwar are dismissed. The cross-objections filed by the claimants Smt. Ratan Kanwar and ors. at inward No.34 dtd. 3.1.1998 is allowed. No order as to costs.
(DR. VINEET KOTHARI), J.
ss-
93-95