New India Assurance Co. Ltd Vs. Jagdish Prasad Pandey and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 1,500/- in round figure for good diet at the rate of rs. he is not bound by any provision of section 96 of the act like the insurer but can challenge on all grounds relating to the cause and responsibility of the accident, the liability, the quantum of compensation awarded, the question of status of the dependants as well as the appellants' right to claim damages. firstly, where the right to contest is reserved in the policy in favour of the insurer and secondly, where the person against whom the claim had been made has failed to contest the claim, a right has been granted to the insurer under section 110-c (2-a)(ii) of the act to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. that clearly is a question of interpretation of the sub-section. ..we therefore think that sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it? the insurer will be a person aggrieved, but it is well settled that the insurer cannot challenge the quantum of compensation awarded, in appeal. municipal corporation air 1988 bombay 9. 20. the law is, therefore, well settled that later decision of the supreme court should not be mechanically relied on and that could not be taken to have overruled an earlier decision unless that has been distinguished or overruled accurately and elaborately by later decision. 21. the rule laid down by the full bench in ganga saran's case air 1991 all 114, in regard to the two conflicting decisions of the supreme court, will, in our opinion, equally hold good to the conflicting decisions of the high court. in rajendra kaur's case 1989 acj 961 (allahabad), the division bench clearly held that the supreme court did not lay down as to what grounds would be available to the insurer in an appeal under section 110-d of the old act and that all that was considered in that case was the grounds or defences which were available to the insurer in the suit at the trial stage. in itbar singh (supra), the supreme court nowhere held that what holds good to the trial stage that will hold good to the appellate stage as well but the division bench in gulab chandra (supra) stretched the rule laid down by the apex court for the trial stage to the appellate stage. it is this subtle distinction which was highlighted by the division bench in rajendra kaur 1989 acj 961 (allahabad), which distinguished the case of itbar singh (supra), on that score assigning good and elaborate reasons. the division bench in the case of rajendra kaur (supra) interpreted sub-section (1) of section 110-d that that was free from the shackle of sub-section (2) of section 96. no reasoning whatsoever, much less convincing reasoning was given by the division bench in gulab chandra 1985 acj 245 (allahabad), to whittle down the scope of sub-section (1) of section 110-d but the division bench hastened to conclude that what holds good to the trial stage that would equally hold good to the appellate stage. scope of section 110-d was not an issue before the supreme court and, therefore, there was no justification for the division bench in gulab chandra (supra) to say that what holds good to the trial stage that will hold good to the appellate stage too. such a view was endorsed by the supreme court in u. on the other hand, the division bench in rajendra kaur 1989 acj 961 (allahabad), furnished good reasons to hold that section 110-d (1) cannot be read in such a manner as if the same is subjected to the provisions of sub-section (2) of section 96. 30. yet another division bench of this court in new india assurance co. arun kumar bordoloi 1988 acj 813 (gauhati). it seems that the division bench in gulab chandra (supra) was under the erroneous impression that the supreme court in itbar singh (supra) made observations with regard to appellate forum as well. parties should be able to predict with some measure of accuracy, the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, thing very much to the public good. prior to 14.11.1994, no guideline whatsoever was provided in the act to determine the compensation and claims tribunals on the facts and in the circumstances of each case were free to determine the compensation to their best judgment.om prakash, j.1. these are the cross f.a.f.o.s. - one filed by the new india assurance co. ltd (hereinafter referred to as ' the insurer') and the other by the claimant against the impugned order dated 1.7.1991, made by the motor accidents claims tribunal, allahabad awarding compensation to the claimant to the extent of rs. 9,64,000/- as against the total claim of rs. 52,37,000/-.2. the claimant while proceeding on his motorcycle ugb 4020 on 14.11.1989 with his security guard in connection with the election of the state legislature on the g.t. road from allahabad to fatehpur, met an accident at about 4.30 p.m. near village sikandarpur bazaha, p.s. kokhraj, district allahabad with a truck dig 4565 being driven rashly and negligently by the driver. when the motor cycle of the claimant was hit by the truck, he and his security guard both fell down and the former sustained serious injuries. the claimant was removed to swaroop rani hospital, allahabad where he remained under the treatment of an orthopaedics, namely, dr. a.n. verma, who consequent upon the injuries caused to the claimant had to amputate right leg of the claimant. the claimant then arranged an artificial limb from jaipur which place he had to visit on several occasions. it is said that according to the medical opinion, the claimant suffered 90 per cent disability. it is averred that the claimant continued to work from 1976 till the date of the accident as a clerk in the chamber of one mr. vinod kumar, advocate and that prior to that he was a clerk in the chamber of mr. k.m. dayal, senior advocate. besides being a clerk, it is averred that the claimant has agricultural land where from monthly agricultural income was rs. 8,000/-. the claimant claimed that his monthly earning from the chamber of mr. vinod kumar, advocate was rs. 3,000/- and that in addition to that he also worked in the chamber of another advocate mr. prakash gupta wherefrom his monthly income was rs. 1,000/-. it is said that after the accident, the claimant ceased to be a clerk and so also he lost the agricultural income. it is said that the claimant was an active social worker when the accident took place and that he was also president of the amitabh bachchan friends association of allahabad region besides being manager of the kamasin devi junior high school and secretary of the rajrooppur development society and that he was then contesting election of m.l.a. from the allahabad (west) vidhan sabha constituency.3. consequent upon the amputation of the right leg, it is said that the claimant will have to depend on an attendant or a helper throughout the life. he, therefore, claimed general damages on six counts to the tune of rs. 1,35,000/- and special damages to the extent of rs. 48,75,000/-on eight counts plus compensation.4. the claims tribunal held that the claimant was hit by the truck being driven rashly and negligently on 14.11.1989; that he was 35 years old at the time of the accident; that his monthly income from the advocate's chamber was rs. 2,500/- only; that considering his age of 35 years and his life expectancy of 60 years, future loss of income was to the tune of rs. 7,50,000/-(rs. 2500/- x 12 x 25) and loss of agricultural income was rs. 20,000/-. total compensation on account of loss of earning and the agricultural income was taken at rs. 7,70,000 (rs. 7,50,000 + rs. 20,000). the tribunal then awarded rs. 17,000/-for medical expenditure taking into consideration the vouchers of uma chemist, rs. 1,000/- towards the cost of 5 bottles of blood, rs. 1,500/- in round figure for good diet at the rate of rs. 20/- per day for 73 days from 14.11.1989 to 17.1.1990 during which period claimant remained hospitalised, rs. 1,000/- for future medical expenses and thus total sum of rs. 20,500 was awarded towards special damages.5. the claims tribunal then awarded rs. 20,000/- towards transport charges holding that if such amount is deposited then regular monthly interest income at rs. 200/- would accrue on such deposit, which could be utilised towards transport expenses.6. the tribunal rejected the claim for attendant holding that with the help of artificial limb, the claimant could move around and that he will be entitled to several concessions, including concession in the travelling in the category of handicapped persons. a sum of rs. 700/- was awarded to the claimant qua the expenditure which he might have incurred on an attendant, engaged during the period of being hospitalised. tribunal also awarded a sum of rs. 14,300/- from the interest income of which the claimant could avail services of an attendant; rs. 1,000/- for the damage caused to the motor cycle; rs. 1,500/- towards travelling expenses which the claimant would have incurred in connection with the procurement of the artificial limb; rs. 500/- towards the cost of the artificial limb, as no evidence was adduced by the claimant to establish the actual cost of the artificial limb and rs. 1,00,000/-, as in the opinion of the tribunal, attractive personality, political and social activities of the claimant were adversely affected by the accident. for loss of amenities and comforts of life, the tribunal awarded rs. 20,000/-. general damages awarded to the claimant aggregate to rs. 1,35,000/-.7. this is how the tribunal awarded general damages and special damages aggregating to rs. 9,64,000/-.8. whereas the insurer has pleaded that the damages awarded by the tribunal are excessive, the grievance of the claimant is that the claims tribunal has grossly under estimated the compensation for attendant and for other items.9. as both the appeals arise from the impugned order, they are being taken up for decision together.10. mr. prakash gupta, learned counsel for the claimant at the very outset raised a preliminary objection that in view of the provisions of section 149, sub-section (2) of motor vehicles act, 1988 ('new act', for short) which corresponds to section 96(2) of the act no. 4 of 1939 (briefly, 'the old act'), new india assurance co. ltd. (hereinafter referred to as 'the insurer') is not competent to challenge the quantum of compensation, awarded by the claims tribunal. sub-section (2) of section 149 of the new act, insofar as relevant, states that an insurer who is put to the notice before commencement of the proceedings by the claimant under the act, shall be entitled to defend the action on any of the following grounds, namely,(a) that there has been a breach of a specified condition of the policy (enumeration of specified conditions follows) or(b) that the policy is void on the ground that it was obtained by non-disclosure of a material fact or by a representation of fact which was false in some material particular.11. whether or not the insurer is entitled to challenge the quantum of compensation awarded by the claims tribunal, there are divergent views on this question. in united india fire & genl. ins. co. ltd. v. gulab chandra gupta 1985 acj 245 (allahabad), which is governed by the provisions of the old act, a preliminary objection was raised by counsel for the claimant that it was not open to the insurer to file an appeal to challenge the quantum of compensation awarded and further it was not open to the insurer to challenge any finding which was not covered within the parameter of section 96(2) of the old act. under section 110-d (1) of the old act which corresponds to section 173(1) of the new act, any person aggrieved by an award of a claims tribunal may within ninety days from the date of award prefer an appeal to the high court. in gulab chandra's case (supra), a division bench of this court for having come to the conclusion that the insurer is not entitled to challenge the quantum of compensation, held as under:(13)...it is apparent from a perusal of the provision of, section 96(2) of the motor vehicles act that the ground for challenge to a claim by the insurer of the vehicle is limited and confined to the matters which are within the purview of section 96(2) read with section 96(6) of the act. similar would be the position in the appeal against the award. in the case of capt. itbar singh 1958-65 acj 1(sc), their lordships held that an insurer cannot challenge in appeal the award of compensation by the claims tribunal on any other ground than what is contained in section 96(2) of the act. the owner of the vehicle involved in the accident or which was the cause of accident has, however, a very wide field of challenge to the order passed by the claims tribunal. he is not bound by any provision of section 96 of the act like the insurer but can challenge on all grounds relating to the cause and responsibility of the accident, the liability, the quantum of compensation awarded, the question of status of the dependants as well as the appellants' right to claim damages. the nature of the grounds would, therefore, be different in the case of an insurer from that of the owner of the vehicle. it is, therefore, apparent that it would not be open to the insurer to challenge the award on the same grounds as are open to the owner of the vehicle. there are two exceptions to this rule. firstly, where the right to contest is reserved in the policy in favour of the insurer and secondly, where the person against whom the claim had been made has failed to contest the claim, a right has been granted to the insurer under section 110-c (2-a)(ii) of the act to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made....(15)...the insurer can only take such defence in an action under section 110-a of the act as is available to it under section 96(2) of the act....the question came up for consideration before their lordships of the supreme court in the case of capt. itbar singh 1958-65 acj 1 (sc) and their lordships observed:'the question then really is, what are the defences that sub-section (2) makes available to an insurer? that clearly is a question of interpretation of the sub-section....'now the language of sub-section (2) seems to us to be perfectly plain and to admit of no doubt or confusion. it is that an insurer to whom the requisite notice of the action has been given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely, after which comes an enumeration of the grounds. it would follow that an insurer is entitled to defend on any of the grounds enumerated and no others. if it were not so, then of course no grounds need have been enumerated. when the grounds of defence have been specified, they cannot be added to. to do that would be adding words to the statute.... we therefore think that sub-section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it?12. it will be seen that relying on the supreme court decision in itbar singh 1958-65 acj 1 (sc), the division bench in gulab chandra 1985 acj 245 (allahabad), held that quantum of compensation could not be challenged by the insurer as that defence was not open under section 96(2) of the old act.13. in gulab chandra 1985 acj 245 (allahabad), the division bench held:a finding that the owner/driver was responsible for causing the accident or a finding that the accident was as a result of rash and negligent act of the driver would not make them person aggrieved unless there was a direction in the award that they were liable to pay some part or the entire amount of the compensation awarded. the above finding will not make them 'person aggrieved' within the meaning of section 110-d of the act. their real grievance should be against the award of compensation.[see para 24 at p. 253]the division bench further held:the insurer will be a person aggrieved, but it is well settled that the insurer cannot challenge the quantum of compensation awarded, in appeal.'[see para 25 at pp. 253-54]14. though the division bench held that the insurer would be covered by the term 'person aggrieved' within the meaning of section 110-d (1) of the old act, yet it had taken the view that it was not open to the insurer to challenge the quantum of compensation in appeal in gulab chandra 1985 acj 245 (allahabad).15. after the case of gulab chandra 1985 acj 245 (allahabad), the question: whether the quantum of compensation can be challenged by the insurer in appeal, came up for consideration before another division bench of this court in oriental fire & general ins. co. ltd. v. rajendra kaur 1989 acj 961 (allahabad), which dissented from the earlier division bench in the words extracted below [para 11, p. 965]:after this statement had been made, the learned counsel for the respondent raised other preliminary objection and it was contended that the insurer was not entitled to raise any other point in appeal except that which could have been taken by it by way of defence as provided under section 96 (2) of the act. for this objection also, reliance is placed on united india fire & genl. ins. co. ltd. v. gulab chandra gupta 1985 acj 245 (allahabad). in the above division bench decision, reliance has been placed on itbar singh's case 1958-65 acj 1 (sc) and in para 13 of the report, while quoting itbar singh's case, the division bench of this court mentioned that their lordships (of the supreme court) held that an insurer cannot challenge in appeal the award of compensation by the claims tribunal on any other ground than what is contained in section 96(2) of the act. this, however, does not appear to be the correct position. in itbar singh's case (supra) the supreme court was not dealing with the matter at the appellate stage as the facts quoted in the supreme court decision would show. in that case what had happened was that the defendant in his written statement took pleas in defence other than those that are mentioned in section 96 (2) of the act and this was objected to by the plaintiff who prayed that the written statement of the insurer be taken off the record. it was in this situation that a question arose as to what were the defences available to the insurer. against the order passed by the trial court, appeals were taken to the high court where it was held that the insurer must only take such defences as are mentioned in sub-section (2) of section 96 and no others. it was against this decision of the high court that the matter came before the supreme court and the decision of the high court was upheld. at any rate, the question of raising a plea other than those permitted by section 96(2) by the insurer at the appellate stage did not arise at all in that case. it may also be mentioned that the matter which came before the supreme court did not arise out of a claim petition under section 110-a of the act but it was raised in a regular suit for damages against the owner and insurer of the vehicle. the supreme court, therefore, did not lay down as to what grounds would be available to the insurer in an appeal under section 110-d. all that was considered in that case was the grounds or defences which were available to an insurer in the suit at the stage of trial. section 110-d dealing with the appeal does not also limit or in any way circumscribe the right of the appellant as to the grounds on which the award can be assailed by insurer. all that it says is that 'any aggrieved person' may prefer appeal against the award of the claims tribunal. on what grounds can such an award be challenged by the aggrieved party has not been specified. when the right of appeal has been given to an aggrieved party, it must have the right to challenge the award on all legal and factual grounds, of course not outside the scope of the record. whatever evidence is there on the record can be taken advantage of by the appellant in order to satisfy the appellate court that the award had been wrongly made. we, therefore, find it difficult to accept the second preliminary objection as it seems to us that in united india fire & genl. ins. co. ltd. v. gulab chandra gupta 1985 acj 245 (allahabad), the division bench of this court had totally misconstrued the supreme court decision in coming to the conclusion that in appeal also, the grounds available to an insurer are limited to those mentioned in section 96(2) of the act.16. the question for consideration, therefore, is that when two benches of co-ordinate jurisdiction, that is, of equal strength, render conflicting decisions, which of them should be preferred.17. such question came up for consideration before a full bench in ganga saran v. civil judge, hapur, ghaziabad air 1991 allahabad 114. the full bench then pointed out:one line of decision is that if there is a conflict in two supreme court decisions, the decision which is later in point of time would be binding on the high courts. the second line of decision is that in case there is a conflict between the judgments of supreme court consisting of equal authorities, incidence of time is not a relevant factor and the high court must follow the judgment which appears to it to lay down law elaborately and accurately.18. similar situation arose before a full bench of punjab and haryana high court in the case of indo swiss times ltd. v. umrao air 1981 p&h; 213. what the full bench in the said case held is extracted below:now the contention that the latest judgment of a co-ordinate bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. when judgments of the superior court are of co-equal benches and therefore, of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. it is manifest that when two directly conflicting judgments of the superior court and of equal authority are extant then both of them cannot be binding on the courts below. inevitably a choice, though a difficult one, has to be made in such a situation. on principle it appears to me that the high court must follow the judgment which appears to it to lay down the law more elaborately and accurately. the mere incidence of time whether the judgments of co-equal benches of the superior court are earlier or later is a consideration which appears to me as hardly relevant.19. this decision was followed by the bombay high court in the case of special land acquisition officer v. municipal corporation air 1988 bombay 9.20. the law is, therefore, well settled that later decision of the supreme court should not be mechanically relied on and that could not be taken to have overruled an earlier decision unless that has been distinguished or overruled accurately and elaborately by later decision.21. the rule laid down by the full bench in ganga saran's case air 1991 all 114, in regard to the two conflicting decisions of the supreme court, will, in our opinion, equally hold good to the conflicting decisions of the high court.22. the question for consideration, therefore, is as to which of the two decisions: (1) gulab chandra 1985 acj 245 (allahabad); or (2) rajendra kaur 1989 acj 961 (allahabad), lays down the law more accurately and elaborately.23. to come to the conclusion that the ground for challenge to a claim by the insurer of the vehicle is limited and confined to the matters which are within the purview of section 96(2) read with section 96(6) and that similar would be the position in the appeal against the award, the division bench in gulab chandra's case 1985 acj 245 (allahabad), extensively relied on itbar singh's case 1958-65 acj 1 (sc). the question for consideration is whether the decision in itbar singh's case (supra) is an authority on the question as to what grounds can be taken by an insurer in appeal and whether it is open to the insurer to challenge quantum of award in appeal. in rajendra kaur's case 1989 acj 961 (allahabad), the division bench clearly held that the supreme court did not lay down as to what grounds would be available to the insurer in an appeal under section 110-d of the old act and that all that was considered in that case was the grounds or defences which were available to the insurer in the suit at the trial stage. since the case of itbar singh (supra) is the bedrock of the decision, rendered in gulab chandra (supra), it is in the fitness of things to state the factual backdrop of that case.24. the appeal before the supreme court arose out of two suits filed against the owners of the motors cars for recovery of damages suffered by the plaintiffs as a result of the negligent driving of the cars. the insurers were subsequently added as defendants to the suit under the provisions of section 96(2) of the old act. on being added as defendants, the insurer filed the written statement, taking defences other than those mentioned in section 96(2). a contention was advanced by the plaintiffs that the insurers could defend the action only on the grounds mentioned in sub-section (2) and no other. in deciding this aspect of the matter, the supreme court pointed out that an insurer had no right, apart from the one conferred by the statute, to be made a party to the action by the injured against the insured. it was pointed out that section 96(2) gave the insurer a right to be made a party to the suit and to defend it. it was, therefore, pointed out that the content of the right must necessarily depend on the provisions of the statute. the question which was posed for an answer was 'what are the defences that sub-section (2) makes available to an insurer?' in this fact-situation the supreme court enunciated that 'an insurer is entitled to defend on any of the grounds enumerated and no others. if it were not so, then of course no grounds need have been enumerated. when the grounds of defence have been specified they cannot be added to. to do that would be adding words to the statute.'25. from the decision of the supreme court, it is manifest that the said decision has dealt with the defences available to an insurer in the court of first instance, it has nothing to do with the grounds available in an appellate forum. and so, in our view there is no warrant in applying the ratio of itbar singh's case 1958-65 acj 1 (sc), to defences available in appeal, when the complexions of the two proceedings are different for reason, inter alia, that the owner cannot always make a grievance before the appellate forum. there is significant difference between the trial stage and the appellate stage and the division bench in gulab chandra 1985 acj 245 (allahabad), remained absolutely silent on such difference. in itbar singh (supra), the supreme court nowhere held that what holds good to the trial stage that will hold good to the appellate stage as well but the division bench in gulab chandra (supra) stretched the rule laid down by the apex court for the trial stage to the appellate stage. it is this subtle distinction which was highlighted by the division bench in rajendra kaur 1989 acj 961 (allahabad), which distinguished the case of itbar singh (supra), on that score assigning good and elaborate reasons.26. in the scheme of the motor vehicles act, an insurer is not entitled to lead evidence on proper determination of compensation before the claims tribunal, because at that stage the owner of a vehicle is entitled to lead evidence on determination of compensation and only when the owner fails to contest, the insurer becomes entitled to participate in the proceedings before the claims tribunal in view of section 170 of the new act and under the analogous provision of the old act, but the position before the appellate forum is entirely different, inasmuch as under section 110-d (1) and under the corresponding section 173(1) the right to file appeal is conferred on an aggrieved person without any limitation.27. the question is whether the insurer comes within the category of 'any person aggrieved' within the meaning of section 110-d (1) and 173(1). in gulab chandra 1985 acj 245 (allahabad), the division bench categorically held that the insurer falls within the expression 'any person aggrieved' and rightly so as the insurer undertakes to discharge the liability fastened on the owner of a vehicle by virtue of an insurance cover. though the liability is created against the owner of a vehicle by virtue of the insurance cover, the insurer becomes liable to discharge that liability and, therefore, against improper determination of compensation it is the insurer who is a 'person aggrieved' within the meaning of the appeal provision.28. in rajendra kaur 1989 acj 961 (allahabad), the division bench pointed out that section 110-d dealing with the appeal does not limit or in any way circumscribe the right of the appellant to the grounds on which the award can be assailed by an insurer. all that it says is that any person aggrieved may prefer an appeal against the award of the claims tribunal. on what grounds can such an award be challenged by the aggrieved party that has not been specified. when the right of appeal has been given to an aggrieved party, it must have the right to challenge the award on all legal and factual grounds, of course, not outside the scope of the record. the supreme court in itbar singh 1958-65 acj 1 (sc), did not consider the scope of the appeal provision as contained in section 110-d of the old act. sub-section (1) of section 110-d and of section 173 state in unqualifying terms that any person aggrieved by an award of a claims tribunal may prefer an appeal to the high court. sub-section (1) is not subjected to sub-section (2) of section 96 of the old act and sub-section (2) of section 149 of the new act. sub-section (1) does not indicate that an appeal against an award can be preferred by an aggrieved person only on the grounds as stated in sub-section (2) of section 96 and section 149. when scope of sub-section (1) is not governed by sub-section (2) of section 96 and 149, it will be nothing but proper to keep the amplitude of sub-section (1) of section 110-d and section 173 intact and wide open. the division bench in the case of rajendra kaur (supra) interpreted sub-section (1) of section 110-d that that was free from the shackle of sub-section (2) of section 96. no reasoning whatsoever, much less convincing reasoning was given by the division bench in gulab chandra 1985 acj 245 (allahabad), to whittle down the scope of sub-section (1) of section 110-d but the division bench hastened to conclude that what holds good to the trial stage that would equally hold good to the appellate stage. the ratio in the case of itbar singh (supra) was straightaway applied to the case of gulab chandra (supra) by the division bench without appreciating that the supreme court's decision was germane to the trial stage. scope of section 110-d was not an issue before the supreme court and, therefore, there was no justification for the division bench in gulab chandra (supra) to say that what holds good to the trial stage that will hold good to the appellate stage too. in gulab chandra (supra), the division bench placed restrictive interpretation on section 110-d (1) without any cogent reason. on the other hand, the division bench in rajendra kaur's case (supra) construed that provision liberally which that deserved in law for the ample reasons given by that bench. the view taken by the division bench in rajendra kaur's case is fully fortified by the decision in himalayan tiles and marbles (p) ltd. v. francis victor coutinho air 1980 sc 1118. that case related to land acquisition proceedings. in that case the learned single judge quashed the notifications issued under sections 4 and 6 of the land acquisition act on a writ petition filed by the owner of the land. the division bench of the high court dismissed the letters patent appeal filed by the company on the ground that company has no locus standi to file the appeal as it was not a person interested within section 18(1) of the land acquisition act. the said view was reversed by supreme court in himalayan tiles and marbles (supra) observing that the company was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. the court further observed that the definition of the words 'person interested' must be liberally construed so as to include a local authority, for whose benefit the land is acquired and who is bound to pay the compensation. such a view was endorsed by the supreme court in u.p. awas evam vikas paris had v. gyan devi air 1995 sc 724, in which the court held that even if the local authority is not impleaded as a party before the reference court it can file an appeal against the award of the reference court in the high court after obtaining leave of the court, if it is prejudicially affected by the award. so the test of being prejudicially affected was laid down by the supreme court in gyan devi (supra) for the eligibility of filing an appeal. certainly the insurer who has to discharge the liability created against the insured is an aggrieved person and, therefore, the protection of law given to it under sub-section (1) of section 110-d and 173 cannot be denied to it.29. before taking away the protection of law conferred on an aggrieved person by section 110-d and subjecting the right of appeal of the aggrieved party to the provisions of section 96(2), the division bench ought to have given cogent reasons in gulab chandra 1985 acj 245 (allahabad), but unfortunately it has not been so done. on the other hand, the division bench in rajendra kaur 1989 acj 961 (allahabad), furnished good reasons to hold that section 110-d (1) cannot be read in such a manner as if the same is subjected to the provisions of sub-section (2) of section 96.30. yet another division bench of this court in new india assurance co. ltd. v. shakuntla devi 1996 acj 342 (allahabad), took the same view as was taken in gulab chandra 1985 acj 245 (allahabad). to take such a view the division bench in shakuntla devi (supra) referring to the case of rajendra kaur 1989 acj 961 (allahabad), observed that 'the reasoning of the latter division bench stands obliterated by the new act of 1988. under the new act, section 149(2) again continues the right of the insurer to defend the claim on the same grounds on which the insurance company was permitted to defend the claim under section 96(2) of the old act.' the question is whether the decision in the case of rajendra kaur (supra) stood obliterated by the new act. no doubt, in the new act section 149(2) corresponding to section 96(2) of the old act has been enacted; but the question is whether for that reason the decision in the case of rajendra kaur can be said to have been obliterated. mere re-enactment of a provision analogous to section 96(2), cannot be construed to having the effect of obliterating a prior decision. neither expressly not impliedly the decision in the case of rajendra kaur (supra) has been obliterated by section 149(2). no reason has been given by the division bench in shakuntla devi (supra) that the provisions of section 173(1) of the new act are governed or controlled by section 149(2) and that right of appeal conferred on a person aggrieved under section 173(1) is of restrictive nature.31. the division bench in shakuntla devi 1996 acj 342 (allahabad), also pointed out that the case of rajendra kaur 1989 acj 961 (allahabad), was distinguishable, inasmuch as in the latter an award was made ex parte against the owner of the vehicle and, therefore, that case fell within the exception carved out by section 170(b) of the new act. the division bench in rajendra kaur (supra) categorically held that the case of itbar singh 1958-65 acj 1 (sc), was not an authority on the scope of appeal provision. the reasoning given by the division bench in rajendra kaur (supra) that that case was covered by an exception under section 170(b) and, therefore, the insurer was entitled to contest the claim of compensation in appeal was merely secondary and the principal reasoning was that section 110-d (1) conferred an absolute right of appeal on an aggrieved party, which was not subject to the provisions of section 96(2). therefore, the distinction pointed out by the division bench in shakuntla devi is a distinction without difference.32. in para 13, already reproduced, the division bench in gulab chandra 1985 acj 245 (allahabad), observed: '.... in the case of capt. itbar singh 1958-65 acj 1 (sc), their lordships held that an insurer cannot challenge in appeal the award of compensation by the claims tribunal on any ground than what is contained in section 96 (2) of the act.' but upon meticulous perusal of the case of itbar singh (supra) we could not find any observation by the supreme court in regard to appeal and similar is the understanding of the gauhati high court in hemendra dutta choudhury v. arun kumar bordoloi 1988 acj 813 (gauhati). it seems that the division bench in gulab chandra (supra) was under the erroneous impression that the supreme court in itbar singh (supra) made observations with regard to appellate forum as well.33. for the foregoing reasons we are of the considered view that the decision rendered in rajendra kaur 1989 acj 961 (allahabad), lays down the law more accurately and elaborately and following that decision we reject the preliminary objection raised by the claimant.34. legal objection being concluded, decks are cleared for determination of quantum of compensation. whereas the counsel for the insurer submits that the compensation awarded by the claims tribunal to the claimant is excessive, the submission of counsel for the claimant is that the compensation awarded has been under-assessed on several counts.35. the claims tribunal awarded compensation to the tune of rs. 7,70,000/- on account of loss of earning (rs. 7,50,000/-representing loss of earning from the job of a clerk and rs. 20,000/- as loss of agricultural income and special damages to the tune of rs. 20,500/-, the break-up of which is as follows:medical expenses asper vouchers rs. 17,000/-future medicalexpenses rs. 1,000/-special diet rs. 1,500/-cost of blood rs. 1,000/-36. the tribunal has further awarded rs. 20,000/- as transportation expenses, rs. 14,300/- for attendant, rs. 1,000/- for motor cycle repairs, rs. 500/- towards the cost of artificial limb, rs. 20,000/- for loss of amenities and rs. 1,00,000/- on account of social and political activities of the claimant being adversely affected.37. the question for consideration is as to on the facts and in the circumstances of the case what will be the proper amount of compensation.38. the date of accident is 14.11.1989. the claimant was aged about 35 years on the date of the accident and the tribunal found that his monthly earning from the lawyer's chamber was rs. 3,000/-, though the case of the claimant was that he earned rs. 3,000/- from one chamber and rs. 1,000/- from another chamber. in the appeal filed by the claimant, it is contended that claims tribunal was in error in awarding rs. 14,300/- only for attendant, though the claimant required services of an attendant forever and that loss of agricultural income was highly underestimated. the claimant also raised grievance for some other items.39. until the insertion of the second schedule by act no. 54 of 1994, w.e.f. 14.11.1994 in the new act, there was no uniform method for the determination of the compensation. prior to that the claims tribunal while awarding damages in the form of compensation, determined special and general damages item-wise. in ward v. james (1965) 1 all er 563, the court of appeal while dealing with the question of awarding compensation in personal injury cases laid down three basic principles:first assessability. in cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. second, uniformity. there should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. thirdly, predictability. parties should be able to predict with some measure of accuracy, the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, thing very much to the public good.from the above authority, it is clear that what is more important is the uniformity and predictability. no amount of money can restore the physical frame of the claimant, yet the court shall have to make an effort to make compensation which may provide relief to the injured. damages in the form of compensation can never be determined with accuracy and precision. the claims tribunal before the second schedule was inserted in the new act having no uniform yardstick to determine the compensation, always faced difficulty in applying standard criteria. the second schedule inserted w.e.f. 14.11.1994, became a guide to the claims tribunal to maintain uniformity. prior to that the courts took the view that it is not necessary to allocate specific sums to different heads and sub-heads, instead it is proper to arrive at a global figure after assessing various factors as contained in the various sub-heads. it is desirable that the tribunal while considering damages should assess loss in respect of each item separately to which the claimant may be entitled under the various sub-heads as in that event it is easier for the appellate court to assess the damages in appeal.40. the date of accident in the instant case is 14.11.1989, i.e., before the second schedule came to be inserted in the act. the question for consideration is whether in the interest of uniformity, guidelines as provided in the second schedule for the determination of compensation can be pressed into service. the submission of learned counsel for the claimant is that the accident having taken place much before 14.11.1994, the case will be governed by the law as was in force prior to 14.11.1994, when the second schedule was inserted in the act. prior to 14.11.1994, no guideline whatsoever was provided in the act to determine the compensation and claims tribunals on the facts and in the circumstances of each case were free to determine the compensation to their best judgment. when no norms were provided for determining compensation prior to 14.11.1994, we see no legal inhibition in following the norms as provided in second schedule, as resorting to the second schedule will not do violence to the statutory language. the position would have been different had the statute provided different norms prior to 14.11.1994.41. we, therefore, hold that the second schedule though strictly is not applicable to the case in hand, but for the proper determination of compensation statutory norms having uniformity, predictability and transparency, as laid down in the second schedule can be justly followed.42. the case of the claimant is that on account of his right leg being amputated, he suffered ninety per cent permanent disability. item no. 5 in the second schedule refers to disability in non-fatal accident. the case of the claimant is of permanent partial disablement. item no. 5 in the second schedule, insofar as relevant, runs as under:(a) in case of permanent total disablement, the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation, or(b) in case of permanent partial disablement, such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above. injuries deemed to result in permanent total disablement/permanent partial disablement and percentage of loss of earning capacity shall be as per schedule under workmen's compensation act, 1923.43. under item no. 5, loss of income has to be determined. under item no. 5 (a) in the case of permanent total disablement, the amount payable shall be arrived at by multiplying the annual loss of income by the multiplier applicable to the age on the date of determining the compensation. the total monthly earning of the claimant from the lawyer's chamber has been estimated by the tribunal at rs. 3,000/-, though the claimant claimed rs. 4,000/- per month. from a perusal of the record, we see no infirmity in the finding of the claims tribunal in this regard. then the claimant also contended that he suffered loss in regard to agricultural income. agricultural land of the claimant is outside allahabad town and as he was working full time in the lawyer's chamber at allahabad, the probability is that he might have managed the agricultural operation through someone else and, therefore, state of affairs regarding agricultural operation remained the same as it was prior to the accident. therefore, at the rate of rs. 3,000/- p.m., his annual earning comes to rs. 36,000/-. according to the tribunal, he was aged about 35 years at the time of accident and, therefore, as per the second schedule, multiplier 17 will be applicable. therefore, annual loss of income is as follows:rs. 3,000/- x 12 x 17 = rs. 6,12,000/-44. under item no. 5 (b) in case of permanent partial disablement, annual loss of income as determined under item no. 5 (a) will be restricted to the percentage of disablement which be determined as per schedule under the workmen's compensation act, 1923. considering that the right leg of the claimant was amputated from above the knee, serial no. 19 in part ii entitling 'list of injuries deemed to result in permanent partial disablement- amputation cases-lower limbs' in schedule i of the workmen's compensation act, 1923 is the proper entry, which is as follows:amputation below middle thigh to 3'/2' below knee = 60 per centfrom the above reproduced entry, it is clear that the claimant suffered 60 per cent disability and not 90 per cent as averred and, therefore, 60 per cent of the annual loss of income determined at rs. 6,12,000 comes to rs. 3,67,200/- which the claimant will be entitled to. in addition to this amount, the claimant will be entitled to general damages to the tune of rs. 5,000 under the head pain and suffering for grievous injuries under item no. 4 (i)(a) of the second schedule, medical expenses to the tune of rs. 19,000/- (rs. 17,000/- as per vouchers, rs. 1,000/- towards future medical expenses and rs. 1,000/- towards the cost of blood), rs. 1,000/- for motor cycle repair and rs. 500/- towards the cost of artificial limb. all these items aggregate to rs. 25,500/- and thus the claimant is entitled to rs. 3,92,700/- (rs. 3,67,200/-+ rs. 25,500/-).45. in the result, the appeal no. 599 of 1991 filed by the insurer is partly allowed and the appeal no. 917 of 1991 filed by the claimant is dismissed.b.k. sharma, j.46. i agree.