R.L Khurana, J.:— The abovenoted two appeals arise out of the award dated 29.3.1985 of the Motor Accidents Claims Tribunal (II), Solan and Sirmour Districts, camp at Solan.
2. The matrix of the case out of which the present appeals have arisen may be stated thus. On 25.7.1979 in the evening at Kumarhatti within the local limits of jurisdiction of Police Station Dharampur, District Solan, an accident took place wherein a child of about 4½ years of age was crushed by truck bearing No. HPS 1967. The said truck while coming from Kalka side and proceeding towards Shimla had hit the child from behind. The said child Annu alias Vishal had sustained multiple grievous injuries all over his body which resulted in amputation of left arm (above elbow) and left leg (through left hip joint). The permanent disability in respect of the left leg and left arm due to amputation was assessed at 95 per cent and 80 per cent respectively. The injured child through his father and natural guardian, and his parents, hereinafter referred to as the claimants, approached the Motor Accidents Claims Tribunal (‘Tribunal’ for short) seeking compensation to the tune of Rs. 4,00,000. It was averred that the accident was as a result of rash and negligent driving on the part of the driver of the truck.
3. Respondent Nos. 1 to 4 in F.A.O No. 23 of 1986 are the owner, driver, financier and insurer, respectively, of the ill-fated truck No. HPS 1967 and they are being referred to accordingly hereinafter.
4. The owner and driver admitted the accident and the injuries sustained therein by the claimant Annu alias Vishal. Rash and negligent driving on the part of driver was denied. It was averred that the injured himself was to be blamed for the accident. According to them, the injured while playing on the road along with some other children ran across the road and struck against the wheels of the truck.
5. The financier of the truck, H.P Financial Corporation, denied its liability and pleaded that the entire loan taken for the truck stood paid by the owner prior to the accident.
6. The insurer denied its liability under the terms of insurance policy. Alternatively, it was pleaded that its liability was limited to the extent of Rs. 50,000/-.
7. The learned Tribunal after considering the evidence placed before him by the parties came to the conclusion that the accident was as a result of rash and negligent driving on the part of the driver. The claimant Annu alias Vishal was held entitled to compensation of Rs. 1,50,000/- out of which a sum of Rs. 23,500/- towards medical expenses incurred were held payable to claimant Devi Dayal, the father of the injured. The liability of the insurer was held to be unlimited and accordingly the owner, driver and insurer were held jointly and severally liable.
8. Feeling aggrieved by the impugned award holding its liability to be unlimited, the insurer has come up in appeal before this court being F.A.O No. III of 1985.
9. The claimants, who felt aggrieved by the quantum of compensation awarded by the learned Tribunal, have filed the appeal being F.A.O No. 23 of 1986 seeking enhancement in the compensation. It is averred that the claimants are entitled to just and equitable compensation of Rs. 4,00,000/-.
10. We have heard the learned counsel for the parties and have also gone through the record of the case.
11. Be it stated that the findings of the learned Tribunal as to rash and negligent driving on the part of the driver of the truck have not been challenged before us either by the owner or by the driver by way of cross-objections or appeal. Such findings are not open to challenge on the part of the insurer and rightly have not been challenged by it. Therefore, such findings on the question of negligence have become final.
12. The following two questions arise for determination in the present appeals:
(1) Whether the liability of the insurer is limited, if so, to what extent?
(2) Whether just and equitable compensation stands awarded to the claimants?
13. Exh. R-1 is the copy of insurance policy pertaining to the period 8.11.1978 to 7.11.1979 Admittedly, the accident took place during the subsistence of this policy. A perusal of Exh. R-1 shows that under the head ‘Limits of liability’ it is provided in the following terms:
“Limit of amount of the company's liability under section II-1(i) in respect of any accident.— Such amount as is necessary to meet requirements of the Motor Vehicles Act, 1939.
Limit of the amount of the company's liability under section II-1(ii) in respect of any claim or series of claims arising out of one event— Rs. 50,000/-.”
14. Section II of the insurance policy Exh. R-1 deals with ‘Liability to third parties’. Clause 1 thereof, in so far as it is material for the purpose of the present case, reads:
“(1) Subject to the limits of liability the company will indemnify the insured against all sums including claimant's costs 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 (including the loading and/or unloading) of the motor vehicle.”
15. A combined reading of the above clauses makes it clear that the liability of the insurance company is unlimited in the case of death of or bodily injuries to a person caused by or arising out of the use of the motor vehicle. The liability is limited to Rs. 50,000/- only in case of damage to property of a person caused by or arising out of the use of the motor vehicle.
16. Save and except tendering the insurance policy, Exh. R-1, in evidence, no other evidence has been led by the insurer to show that its liability under such policy was limited and, if so, to what extent. Admittedly, the insurance policy Exh. R-1 was a comprehensive policy.
17. Learned counsel for the insurer in support of his contention that the liability of the insurer was limited to Rs. 50,000/- has placed reliance on the ratio laid down by the Apex Court in New India Assurance Co. Ltd. v. Shanti Bai, 1995 ACJ 470 (SC).
18. In the case before the Apex Court the deceased was travelling as a passenger on the roof of the bus with the permission of the bus driver. On a claim having been made by the legal heirs of the deceased, the Tribunal awarded a sum of Rs. 1,10,000 as compensation. The owner, driver and insurance company were held jointly and severally liable. The High Court confirmed the findings of the Tribunal while dismissing the appeal of the insurance company, who had pleaded that its liability was limited to the extent of Rs. 50,000/-. The Apex Court while interpreting the provisions contained in section 95(2)(b) of the Motor Vehicles Act, 1939 and in the absence of evidence showing payment of additional premium towards increased liability held that the liability of the insurance company was limited to the extent as provided under the statute.
19. The ratio relied upon by learned counsel for the insurer is not applicable to the facts of the present case inasmuch as section 95(2)(b), Motor Vehicles Act is not attracted. The vehicle involved in the accident was a truck, that is, a goods vehicle. The injured was also not travelling in the said vehicle. The injured was hit by the truck while he was walking on the road. section 95(2)(b) of the Motor Vehicles Act applies only when a vehicle, in which passengers are carried for hire or reward, is involved in the accident.
20. In the present case since section 95(2)(b) is not attracted, the liability of the insurer shall be unlimited. Therefore, the learned Tribunal has rightly held the insurer to be liable to the extent of whole of the amount of compensation awarded in favour of the injured claimant Annu alias Vishal.
21. The learned Tribunal has awarded a total compensation of Rs. 1,50,000/- under various heads as under:
(i) Personal suffering and loss of enjoyment of life Rs. 40,000/- (ii) Actual pecuniary loss resulting in expenses incurred towards: (a) Medical treatment of the injured (b) Providing of artificial limbs Rs. 16,000/- Rs. 7,500/- (iii) Probable future loss by reason of disability and incapacity or diminished capacity to work Rs. 64,800/- (iv) Future expenses that may be incurred towards replacement of artificial limbs Rs. 21,700/- Total: Rs. 1,50,000/-
22. The injured claimant Annu alias Vishal, at the relevant time, was a small child of about 4½ years. As a result of the injuries sustained by him his left arm from above the elbow and left leg from hip joint had to be amputated. The permanent disability has been assessed at 95 per cent in respect of the leg and at 80 per cent in respect of the arm.
23. The learned Tribunal under the head “Probable future loss by reason of disability and incapacity or diminished capacity to work” while awarding compensation of Rs. 64,800/- has taken into consideration only the expenses which are likely to be incurred by the injured claimant and/or his parents for providing an attendant to him. The learned Tribunal has not awarded any compensation towards the probable loss of future earning capacity in view of the permanent disability involved.
24. In Mangaldas Mohanlal Patel v. Union of India, 1982 ACJ 426 (Gujarat), the High Court of Gujarat has dealt with the principles to be followed while assessing compensation in respect of the death of a thirteen years old boy studying in seventh standard who was knocked down to death by an army truck while he was proceeding on a cycle. It was held:
“…Now, in such cases, where a young boy who is studying in school and who is not earning anything, it is difficult to evaluate his future earning capacity and loss to the appellants. In the present case, we have to assess the damages of a chance in the sense whether deceased would have given any amount to his parents in view of the fact that the deceased was studying in school and was not earning at the time of the accident. When the court has to assess damages, whether in personal injury claims or in claims under the Fatal Accidents Act, it often has, in effect, to value a chance. The court has to assess the value of the lost dependency. One does not know what might have happened had he not been killed; but the value of the prospect, chance or probability of support can be estimated by taking all significant factors into account. The court has to do its best to evaluate all the chances, large or small, favourable or unfavourable. In evaluating such a chance, we have to keep in mind issue or sole issue whether that chance or probability was substantial. If it was substantial, it must be evaluated. If it was a mere probability, it must be ignored. It is true that in real life, chances rarely are, or, can be, estimated on mathematical terms.”
25. It is well settled that the loss in the earning capacity has to be calculated in terms of the permanent disability to which the claimant has been subjected to.
26. When a claimant puts in a claim for his apprehended loss resulting from his inability or handicap either to pursue a profession or to lucrative employment, the same would be based merely on his conjecture and guess work inasmuch as at that particular time one does not know what might have happened had he not been rendered incapacitated or handicapped.
27. In the instant case, the injured claimant Annu alias Vishal, as stated above, was a small child of about 4½ years of age. While claiming enhancement, it is contended that he is very good at studies and due to his handicap, he could not pursue a medical course in India. He is presently undergoing such a course in Russia. No such material has been placed on the record of the present case.
28. The father of the injured while appearing as PW 6 has stated that the injured was an intelligent child and he was expected to have become a big businessman or a high officer. However, it can be reasonably expected that the injured, had he not been incapacitated due to the accident resulting in the amputation of his arm and leg, on attaining the age of majority would have started earning about Rs. 1,000/- per month. Considering the permanent disability sustained, the loss of future earning capacity can be assessed at Rs. 500/- per month or say Rs. 6,000/- per annum. Applying the multiplier of 18, the compensation payable under the head loss of future earning capacity comes to Rs. 1,08,000/- in addition to the amount of compensation of Rs. 64,800/- awarded by the learned Tribunal towards the expected future expenditure which is likely to be incurred for providing an attendant to the injured claimant.
29. In so far as compensation awarded by the Tribunal under other heads is concerned, on consideration of the material coming on record, we are of the opinion that proper compensation stands awarded in favour of the injured petitioner.
30. The learned counsel for the insurer and the claimants have lastly contended that respondent No. 3, HP. Financial Corporation being the financier of the ill-fated truck is equally liable, we do not find force in this contention.
31. Section 2(19), Motor Vehicles Act, 1939 defines the word ‘owner’ as under:
“‘Owner’ means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject-matter of a hire purchase agreement, the person in possession of the vehicle under that agreement.”
32. Admittedly, as on the date of accident respondent No. 1 was in possession of the truck, therefore, as per the definition quoted above, respondent No. 1 will be deemed to be the owner of the truck and financier, respondent No. 3, cannot he held liable. A similar view was taken by the High Court of Punjab and Haryana in Zabar Singh v. Pirthi Chand, 1984 ACJ 125 (P&H).
33. The learned Tribunal has, therefore, rightly held that the financier, respondent No. 3, is not liable.
34. No other point was urged before us by the learned counsel for the parties. As a result while appeal being F.A.O No. III of 1985 filed by the insurer is dismissed with costs quantified at Rs. 2,000/-, the appeal being F.A.O No. 23 of 1986 filed by the claimants is allowed and the amount of compensation of Rs. 1,50,000/- awarded in favour of the injured claimant Annu alias Vishai is enhanced to Rs. 2,58,000/-. The claimant Annu alias Vishal shall also be entitled to interest on this amount at the rate allowed by the learned Tribunal from the date of the petition, that is, 20.2.1980 till the date of payment/deposit of the amount. The owner, driver and insurer shall be jointly and severally liable. They shall deposit the remaining amount of compensation along with interest within one month from today. Parties to bear their own costs in F.A.O No. 23 of 1986.
35. Orders accordingly.
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