Rajasthan High Court - Jaipur
Vishnu Veer Alias Bhola vs Hari Kishan And Ors. on 12 February, 1998
Equivalent citations: 2000ACJ21
JUDGMENT D.C. Dalela, J.
1. Both these appeals arise out of the same award and the same accident, therefore, they are decided by this common judgment.
2. It is stated that the claimant Vishnu Veer alias Bhola (appellant of S.B. Civil Misc. Appeal No. 854 of 1994 and the respondent No. 1 in S.B. Civil Misc. Appeal No. 1033 of 1994) and his other friends were standing near old bus station in Deeg, suddenly, bus No. RRA 2222 driven by Ramavtar (respondent No. 3 in S.B. Civil Misc. Appeal No. 854 of 1994 and respondent No. 2 in S.B. Civil Misc. Appeal No. 1033 of 1994) rashly and negligently hit the claimant due to which the claimant sustained grievous injuries and his right leg was amputated. The claimant filed a claim petition before the learned Motor Accidents Claims Tribunal, Deeg (for short 'the Tribunal'). The learned Tribunal vide its award dated 30.5.1994, awarded a total compensation of Rs. 1,52,000 against Hari Kishan and Ramji Lal, owners of the bus (appellants in Appeal No. 1033 of 1994 and the respondent Nos. 1 and 2 in Appeal No. 854 of 1994), but, fixed the liability of the insurance company (respondent No. 3 in Appeal No. 1033 of 1994 and respondent No. 4 in Appeal No. 854 of 1994), to the extent of Rs. 50,000 only. Feeling aggrieved and dissatisfied with the award passed by the learned Tribunal, the appellants Hari Kishan and Ramji Lal have preferred Appeal No. 1033 of 1994, while the claimant Vishnu Veer alias Bhola has preferred Appeal No. 854 of 1994 for enhancement of the amount of compensation.
3. I have heard the arguments of both the sides.
4. A perusal of the copy of insurance policy, filed before the learned Tribunal, would show 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 date chargeable for the 'Act only' policy, while the premium of Rs. 240 is chargeable in case of liability to the third party public risk. This, in my opinion, implies that the extra premium of Rs. 40 was charged by the insurance company for covering the liability for the death and bodily injury of the third party, and, as such, liability of the insurance company would not be as per the Act, but would be unlimited. In the case of Draupadi Devi v. Inder Kumar 1998 ACJ 418 (Rajasthan), 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.
5. In the case of New India Assurance Co. Ltd. v. Pushpa Kakkar 1993 ACJ 328 (Delhi), 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 the 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 Rs. 1,50,000 but would be unlimited.
6. In the instant case, 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 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. Therefore, the insurance company (respondent No. 3 in the Appeal No. 1033 of 1994 and respondent No. 4 in Appeal No. 854 of 1994) is liable to pay the entire amount of compensation along with interest thereon, jointly and severally.
7. It may be noted that in the Appeal No. 854 of 1994, an additional affidavit has been filed on behalf of the insurance company in which it has been admitted that in another claim petition arising out of the same accident, insurance company had entered into a compromise, where-under, the insurance company agreed to pay a sum of Rs. 82,000 to the claimants of that case. Since the insurance company in another case arising out of the same accident has accepted the liability for more than Rs. 50,000 through a compromise, it is now estopped from saying that its liability under the policy is to the extent of Rs. 50,000 only. From this estoppel also, it is evident that liability of the insurance company cannot be limited to the extent of Rs. 50,000 only. The liability of the insurance company has to be unlimited.
8. Coming to the quantum of compensation, the learned counsel for the claimant has urged to enhance the total amount of compensation, while the learned counsel for the owners of the vehicle has contended that the amount of compensation awarded by the learned Tribunal is on the higher side, and, it requires to be reduced.
9. I have considered the arguments of both the sides.
10. In the case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. 1995 ACJ 366 (SC), the Hon'ble Supreme Court has observed that while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and non-pecuniary damages. Pecuniary damages would include the expenses incurred by the claimants on the medical treatment, etc., and the loss of earning and other material loss. So far as the non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain, suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life; and (iii) loss due to any inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
11. In the instant case, the learned Claims Tribunal has awarded pecuniary damages of Rs. 10,000 approximately for the expenditure incurred on the medical treatment, etc. The learned Tribunal has awarded a sum of Rs. 1,02,000 for the loss of earning and other material loss, etc. Thus, the learned Tribunal has awarded total pecuniary damages of Rs. 1,12,000. I think that the pecuniary damages as assessed by the learned Tribunal are reasonable and adequate and no interference is called for.
12. On account of the non-pecuniary damages, the learned Claims Tribunal has awarded a sum of Rs. 40,000, it cannot be disputed that because of the accident, the claimant has become lifelong handicapped and his right leg had to be amputated. No amount of compensation can restore the physical frame of the claimant. Therefore, whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury so far as money can compensate because it is impossible to equate the money with the human suffering or personal deprivations. Money cannot renew a broken and shattered physical frame. As the Hon'ble Supreme Court has held in the case of R.D. Hattangadi, 1995 ACJ 366 (SC), the determination of the amount of compensation in the cases of accident, "involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused". Whole of the life lies before the claimant, and he will never be in normal physical frame and has become a lifelong handicapped. Therefore, claimant should be paid a sum of Rs. 1,00,000 as non-pecuniary damages for pain and suffering and the loss of amenities of life. Thus, non-pecuniary damages are required to be enhanced to Rs. 1,00,000 from that of Rs. 40,000 as awarded by the learned Tribunal. Thus, the claimant is entitled to a compensation of Rs. 2,12,000 instead of Rs. 1,52,000 as awarded by the learned Claims Tribunal.
13. No other point has been urged and argued before me.
14. In the result, both the appeals are partly allowed. The New India Assurance Co. Ltd., Regional Office, Nehru Place, Tonk Road, Jaipur (respondent No. 3 in Appeal No. 1033 of 1994 and respondent No. 4 in Appeal No. 854 of 1994) shall also be liable to pay the entire amount of compensation along with interest to the claimant along with Hari Kishan and Ramji Lal, the owners of the vehicle in question, jointly and severally, and its liability shall not be limited to Rs. 50,000 as held by the learned Tribunal. The total amount of compensation is enhanced to Rs. 2,12,000 from that of Rs. 1,52,000 as awarded by the learned Tribunal. To this extent the award of the learned Tribunal shall stand modified.
15. The other part, terms and conditions of the award are maintained.