S.K. Dubey, J.
1. The aforesaid two appeals arise out of the award dated 2.3.1993 passed in Claim Case No. 98 of 1993 by VIIth Additional Motor Accidents Claims Tribunal, Bhopal.
2. M.A. No. 618 of 1993 has been filed by the insurer aggrieved of the award while M.A. No. 619 of 1993 has been filed by the claimant for enhancement of the compensation.
3. The injured claimant was employed as Assistant Financier in United Soya Products Ltd. (company), whose office was situated at Maharana Pratap Nagar, Zone Bhopal. He with other occupants in car No. CIR 666 owned by the company was going on 31.10.1987, on Highway No. 12 to the company's factory. The said car met with an accident due to bursting of worn out tyre of the rear wheel. The driver lost control of the car and dashed with a tree on the roadside, as a result of which the claimant received multiple severe injuries. The car was also badly damaged. The claimant was admitted in Niramay Hospital and Medical Research Centre at Bhopal where he remained as indoor patient from 31.10.1987 to 30.11.1987 and then again from 22.4.1989 to 5.5.1989 for the treatment of comminuted fracture of lower end of femur and patella of left leg and of medial end of right clavicle. Operations were performed and bone-grafting was done for reunion of the bones by fixing LFL shape plate in the thigh above knee with screw fixation. The leg was plastered and to set the clavicle, use of belt was advised for a period of one month. He was advised bedrest for 4 1/2 months. After 4'/2 months the plaster was removed and the claimant was advised to move with the help of crutches. Discharge summary of Niramay Hospital is Exh. P/2 and Exh. P/3 is the discharge slip. The claimant suffered permanent disability of 50 per cent of left lower limb because of post-traumatic restriction of movement of left knee (0 to 60 degree flexion) with shortening of 72' of leg. Certificate for physically handicapped person issued by Artificial Limb Fitting Centre, Department of Orthopaedics & Traumatology, Gandhi Medical College, Bhopal is Exh. P/l.
4. The learned Tribunal on the evidence adduced held that the accident was caused due to negligence of the owner and driver of the vehicle as the car was not kept in a roadworthy condition. The Tribunal under the head of pecuniary damages assessed Rs. 35,000 as the expenses incurred in medical attendance and care but, the said amount was not awarded as the claimant got Rs. 22,000 under the medical claim policy, and the balance was reimbursed by the company. However, as the claimant remained under treatment for a period of 472 months, therefore, a sum of Rs. 5,000 was awarded for special diet, an amount of Rs. 8,250 was awarded as loss of pay for a period of 45 days, i.e., when the claimant was admitted for treatment in the hospital from 31.10.87 to 30.11.1987 and then again from 22.4.1989 to 5.5.1989. Under the head of non-pecuniary damages, for pain and suffering and permanent disability an amount of Rs. 60,000 was awarded. Thus total amount of Rs. 73,250 with interest at the rate of 12 per cent per annum from the date of application was awarded, which was ordered to be paid jointly and severally by the owner and insurer of the vehicle.
5. The insurer in its appeal has filed an application to take the complete contract of insurance on the record and also an application for amendment of the written statement for permitting the proposed amendment by adding para 11 after para 10 of the written statement, which reads thus:
That the vehicle was insured as a private car and the policy of insurance of a private car specifically stated that the answering non-applicant No. 3 (insurer) shall not be liable where such death or injury arises out of accident in the course of employment of such person by the insured.
6. Mr. N.S. Ruprah and Mrs. Amrit Ruprah, learned counsel for the insurance company contended that the vehicle was a private car. The insurance policy was a comprehensive policy. The total premium of Rs. 2,016 was paid. The schedule shows that an amount of Rs. 120 was charged against third party risk and Rs. 63 was charged against the accident benefits to unnamed passengers as per endorsement No. IMT-5 as per Indian Motor Tariffs, which reads thus:
Accident to unnamed passengers other than insured and his paid driver or cleaner (private cars only).-In consideration of payment of an additional premium it is hereby understood and agreed that the company undertakes to pay compensation on the scale provided below for the body injury as hereafter defined sustained by any passenger other than the insured and/or his paid driver, attendant or cleaner and/or a person in the employment of the insured coming within the scope of Workmen's Compensation Act, 1923, and subsequent amendments of the said Act and engaged in and upon the service of insured at the time such injury is sustained whilst mounting into and dismounting from or travelling in but not driving the motor car and caused by violation, accidental, external and visible means which independently of any cause shall within three calendar months of the occurrence of such injury may result in...
It was submitted that section II of the policy deals with liability to third parties. The claimant was in the employment of the insured who was travelling as a passenger in the car of which the risk was not covered as he was not a third party. The comprehensive policy issued on the basis of estimated value of the vehicle does not mean that the liability of the insurance company becomes unlimited. Therefore, as the risk was not covered by section II of the policy, the Tribunal ought to have exonerated the insurance company from its liability. Counsel cited the decisions in National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC) and Noorjahan v. Sultan Rajia alias Thaju 1997 ACJ 1 (SC).
7. The contention has no merit in view of the recent pronouncement of the Apex Court in Amrit Lal Sood v. Kaushalya Devi Thapar 1998 ACJ 531 (SC), wherein the claimant was travelling in a private car as a gratuitous passenger, the Supreme Court interpreted section II (1) (a) of the policy and observed that under section II (1) (a) of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to 'any person'. The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously travelling in the car. Insofar as gratuitous passengers are concerned there is no limitation in the policy as such. Hence, under the terms of the policy the insurer is liable to satisfy the award passed in favour of the claimant.
8. To hold so the Supreme Court discussed in paras 4 to 8 of the judgment, which we quote:
(4) The liability of the insurer in this case depends on the terms of the contract between the insured and insurer as evident from the policy. Section 94 of the Motor Vehicles Act, 1939 compels the owner of a motor vehicle to insure the vehicle in compliance with the requirements of Chapter VIII of the Act. Section 95 of the Act provides that a policy of insurance must be one which insures the person against any liability which may be incurred by him in respect of death of or bodily injury to any person or damage to any property of third party caused by or arising out of the use of the vehicle in a public place. The section does not however require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injury suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute whereby the risk to gratuitous passengers could also be covered. In such cases where the policy is not merely a statutory policy, the terms of the policy have to be considered to determine the liability of the insurer.
(5) In the present case, the policy is admittedly a 'comprehensive policy'. 'Comprehensive insurance' has been defined in Black's Law Dictionary, 5th Edn., as 'All risk insurance' which in turn is defined as follows:
Type of insurance policy which ordinarily covers every loss that may happen, except by fraudulent acts of the insured. Miller v. Boston Ins. Co. 218 A 2d 275, 278, 420 Pa 566. Type of policy which protects against all risks and perils except those specifically enumerated.(6) The relevant clauses in the policy before us are found in 'section II- Liability to third parties'. They are:
(1) The company will indemnify the insured in the event of accident caused by or arising out of the use of the motor car against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of-
(a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured;
(b) damage to property other than property belonging to the insured or held in trust by or in the custody or control of the insured.
(2) The company will pay all costs and expenses incurred with its written consent.
(3) In terms of and subject to the limitations of the indemnity which is granted by this section to the insured the company will indemnify any driver who is driving the motor car on the insured's order or with his permission provided that such driver-
(a) is not entitled to indemnity under any other policy;
(b) shall as though he were the insured observe, fulfil and be subject to the terms, exceptions, conditions and limitations of this policy in so far as they can apply.
(7) Under the heading 'General Exceptions', the company's liability is excluded, inter alia, in respect of any accident occurred whilst the car is being used otherwise than in accordance with the limitations as to use or being driven by any person other than a driver. The limitations as to use set out in the policy are not relevant in this case as it is not the case of the insurer that there is a violation thereof. The term 'driver' is expressly defined in the policy as any of the following:
'(a) any person;
(b) the insured may also drive a motor car belonging to him and not hired to him under a hire-purchase agreement. Provided that the person driving holds a licence to drive the motor car or has held and is not disqualified for holding or obtaining such a licence.'
(8) Thus under section II (1) (a) of the policy the insurer has agreed to indemnify the insured against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to 'any person'. The expression 'any person' would undoubtedly include an occupant of the car who is gratuitously travelling in the car. The remaining part of clause (a) relates to cases of death or injury arising out of and in the course of employment of such person by the insured. In such cases the liability of the insurer is only to the extent necessary to meet the requirements of Section 95 of the Act. Insofar as gratuitous passengers are concerned there is no limitation in the policy as such. Hence under the terms of the policy, the insurer is liable to satisfy the award passed in favour of the claimant. We are unable to agree with the view expressed by the High Court in this case as the terms of the policy are unambiguous.
9. Mr. N.S. Ruprah, learned counsel for the insurer, submitted that the decision of the Supreme Court in Amrit Lid's case 1998 ACJ 531 (SC), is of no help to the claimant, as he was travelling in the car as an employee of the company who is the owner of the car, hence, he will not be a 'third party' falling within the ambit of 'any person' so as to meet the requirement of Section 95 of the Act. Therefore, the insurer would not be liable as the risk was not covered by endorsement No. IMT-5 as the claimant being not a workman within the scope of Workmen's Compensation Act, 1923.
10. The contention in our opinion has no merit. Admittedly the claimant was an occupant of the car and was travelling as a gratuitous passenger. Section II (1) (a) covers the risk of two types of persons; one is of the person falling within the expression 'any person' who travels gratuitously and the other part of clause (a) relates to cases of death or injury arising out of and in the course of employment of such persons by the insured. In such case the liability of the insurer is only to the extent necessary to meet the requirement of Section 95 of the Act. Insofar as the gratuitous passengers are concerned there is no limitation in the policy as such which is also evident from the endorsement No. IMT-5. As the claimant does not fall in the category of other part of clause (a) of section II (1), in our opinion, he would be an occupant of the car gratuitously travelling in the car falling within the expression 'any person', entitled to compensation and the insurer under the terms of the policy cannot escape its liability on the ground that the claimant was travelling in the car as an employee of the company.
11. The decision of the Supreme Court in Noorjahan's case 1997 ACJ 1 (SC), relates to a case of passenger for hire or reward in public service vehicle on public road, hence, is of no help to the insurance company. Other two decisions deal with the meaning and extent of comprehensive policy, wherein it has been held that the limit of liability with regard to third party under Section 95 (2) (b) of the Act does not become unlimited or higher than the statutory limit in the absence of specific agreement and payment of separate premium.
12. It takes us to the appeal of the claimant for enhancement of compensation. In R.D. Hatiangadi v. Pest Control (India) Pvt. Ltd. 1995 ACJ 366 (SC), the Supreme Court has laid down the principles for assessment of damages and fixing an amount of compensation to an injured, a victim of an accident. The damages are to be assessed separately as pecuniary damages and special damages. In the present case, the pecuniary damages so far as it relates to the expenses incurred in medical attendance and care were reimbursed by the medical claim policy and by the employer. To that the claimant is not entitled. This court considered the question in Krishnasaran Shrivastava v. M.P. State Road Trans. Corporation M.A. No. 516 of 1995; decided on 12.9.1997, wherein it has been observed that the claimant could not have got medical reimbursement under the M.P. Civil Services (Medical Attendance) Rules, 1959, as a benefit of service rendered by him. If the claimant had not met with the accident, he would not have suffered the injuries and incurred expenditure in treatment and in that case, question of reimbursement would not have arisen. This reimbursement is entirely related to the fortuitous circumstance of the accident. If this amount is awarded on the principle that a tortfeasor should not take over the benefit of the medical reimbursement by getting credit of the amount in mitigation of the damages and that he must pay. To this the court held that if the amount of medical reimbursement is awarded, that would amount to giving double benefit to an injured to which he is not entitled and would give rise to a dispute between the employer and employee, which cannot be permitted.
13. As to loss of leave pay, the Tribunal has awarded Rs. 8,250 for a period of 45 days while the claimant remained on leave for 4'/2 months. His pay was Rs. 5,500 per month, therefore, the claimant would be entitled to loss of leave pay for the whole period, as the claimant would have availed or utilized the leave if he would not have met with the accident, that is the view of this court in Krishnasaran Shrivastava's case, M.A. No. 516 of 1995; decided on 12.9.1997. Thus, under the head of pecuniary damages the claimant, besides Rs. 5,000 awarded by the Tribunal for special diet, would also be entitled to Rs. 24,750 as loss of pay for the total period of leave.
14. So far as non-pecuniary damages, the Tribunal has awarded in all Rs. 60,000. It is well established by evidence that the claimant has suffered physical shock and pain and suffering till he remained in the hospital and also thereafter. Therefore, an amount of Rs. 20,000 under this head would not be unreasonable. Because of the injury the claimant has suffered 50 per cent disability and shortening of leg due to which he is not able to walk, run or sit properly. There is a loss of expectation of life on account of injury. He had to suffer inconvenience, hardship, discomfort, disappointment, frustration and mental stress throughout the life. Therefore, on some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused and trend of this court in comparable cases, one of them is recently decided in Shafiq v. Pramod Kumar Bhatia 1998 ACJ 563 (MP), an amount of Rs. 50,000 would be just and proper. Thus, the claimant would be entitled in all Rs. 99,750, rounded to Rs. 1,00,000 with interest thereon at the rate' of 12 per cent per annum from the date of application till realization.
15. As the insurer of the car has not been absolved from its liability to indemnify the owner in terms of the policy or to pay the compensation to the claimant, we direct the United India Insurance Co. Ltd. to deposit the amount less the amount already deposited by it within a period of two months from the date of supply of certified copy. On deposit, the amount shall be disbursed to the claimant keeping in mind the well settled guidelines.
16. In the result, M.A. No. 618 of 1993 is dismissed while M.A. No. 619 of 1993 is allowed with costs. Counsel's fee Rs. 1,000, if pre-certified.