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NATIONAL INSURANCE CO.LTD. versus RAI AMITENDRA JAIN & ANOTHER

High Court of Judicature at Allahabad

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National Insurance Co.Ltd. v. Rai Amitendra Jain & Another - FIRST APPEAL FROM ORDER No. 1029 of 2000 [2007] RD-AH 7389 (23 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 3

First Appeal From Order No.1029 of 2000

National Insurance Company    .....................................appellant  

Vs.

Rai Amitendra Jain and another ............Claimants-Respondents

Present:

(Hon'ble Mr. Justice Amitava Lala & Hon'ble Mr. Justice V.C. Misra)

Appearance:

     

For the Appellant:              Sri Vivek Kumar Birla  

For the Opp. Party:              Sri Arvind Srivastava

  Sri Rajeev Chaddya

  Sri S.S. Tripathi

  Sri Ashutosh Srivastava

****

Amitava Lala, J.-  According to the appellant-insurance company fixation of compensation amount has to be made on the basis of 70% disablement. The other points are already settled. Therefore, he is only confined his argument on this point. Sri Vivek Kumar Birla learned counsel appearing for the appellant contended before this Court that the concerned Doctor was examined before the Tribunal who said that disability of the right leg of the injured was 70% and not 90%, which had been alleged. From the observations of the Tribunal concerned, it appears that the Tribunal considered such part of the evidence but ultimately on the basis of an example of paralysis in the reported case of 1997 (8) SC 349 (Nagesha Vs. M.S. Krishna and another and on the basis of an example of permanent disablement reported in 1999 (3) TAC 647 (Deepak Agnihotri Vs. Jai Bhan and another fixed the amount of compensation of Rs. 5 lakhs. However, by an interim order, a sum of Rs. 3 lakhs was directed to be withdrawn by the claimants.

Learned counsel appearing for the claimants contended before this Court that if the case of the claimants is considered by calling him to be present in the Court physically or by adopting an appropriate method of test, it will certainly show that the compensation awarded by the Court below was correctly determined.

Mr. Birla brought our attention to the second Schedule provided under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the M.V. Act, 1988) to show that in the case of notional income how the compensation will be determined.

In 1996 A.C.J. 831 (Mahendra Pal Singh Vs. Mukundi Lal, Prabandhak and others) 3 Judges of Hon'ble the Supreme Court  observed that the Schedule will not be used as ready reckoner but as a guide. Thereafter in several Judgements, Courts followed the same principles. Insurance Company's own case is that as per the Doctor's report, the claimant cannot be said to be permanently disabled. Therefore, according to us, irrespective of the factum whether the schedule is ready reckoner or not, the same will not be applicable in this case. The method as per Schedule under Section 163-A of the M.V. Act, 1988 is applicable in a case of death or permanent disablement. If the case is not of permanent disablement but the disablement simplicitor then it will attract the provision of Section 168 of the M. V. Act,1988 for fixing just and appropriate compensation. However, at the time of fixing of just compensation, the Court has to bear in mind the several factum whether such fixation is going to higher side or lower side. If it goes to higher side, the Court with the pros and cons before awarding such compensation.

Learned counsel appearing for the appellant-i nsurance company have contended before this Court that if it will go by Section 163-A of the M.V. Act, 1988 appropriate compensation would be Rs.1,78,000/- and if some other method is adopted in any event the amount will not go beyond Rs. 2 lakhs. We are of the view that one has to take one stand. We cannot allow to take both stand on Section 163-A as well as Section 168 of the M.V. Act, 1988 to establish that the compensation should go in the lower side.

Therefore, according to us the just compensation amount  this case will be round about 3 lakhs. Since, such amount has already been paid to the claimants by an interim order of this Court, we confirm the same would be full and final amount of compensation.

Thus, the appeal stands disposed of accordingly.  No order is passed as to costs.

( Justice Amitava Lala )

I agree

( Justice V.C. Misra )

April 23, 2007

Hasnain


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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