JUDGMENT
Radha Mohan Prasad, J.
1. This appeal is directed against the judgment and award passed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), in Claim Case No. 6 of 1997 by the 5th Additional District Judge-cum-Claims Tribunal, Chapra, whereby he has held that total compensation to which the claimant is entitled comes to Rs. 2,47,000 and not Rs. 6,60,000 as claimed by him. He has also been allowed interest at the rate of 12 per cent per annum with effect from 28.1.1997 till the date of actual payment less the amount of ad interim compensation, if any, paid to him pursuant to the order dated 1.8.1998. The appellant company has been held liable to pay the compensation.
2. In short, the relevant facts are that the claimant was injured in an accident on 26/28.1.1994 involving head-on collision of two trucks one bearing registration No. BRB 4908 and other bearing registration No. BHD 4551 near village Kendua under Akbarpur Police Station within the district of Nawada. The claimant is the resident of village Pirauna, P.S. Garkha, within the district of Saran and hence filed the claim case in the Tribunal at Chapra in the year 1997. The Tribunal on consideration of the evidence has awarded the aforementioned compensation. The applicant was the driver of truck No. BHD 4551 and at the time of accident, the truck was standing by the side of the road and the applicant was removing the wheel of the truck which was punctured. The other truck bearing registration No. BRB 4908 dashed the standing truck due to which the right leg of the petitioner was crushed under the wheels of his truck and the same had to be amputated above ankle. Upon notice the appellant insurance company contested the claim and the Tribunal on consideration of the evidence has come to the conclusion that the driver of truck bearing registration No. BRB 4908 was driving the vehicle rashly and negligently and the applicant was injured in the accident caused by the said truck. As regard the entitlement claimed by him, the Tribunal though has found that his leg was amputated, but held that it cannot be said that he has become permanently disabled so as not to do any other work altogether. Tribunal though has accepted that he cannot earn livelihood as driver, but held that he can adopt other vocations of life and earn some livelihood and thus has granted compensation of Rs. 2,47,000 and not Rs. 6,60,000 as was claimed.
3. Learned counsel for the appellant had initially assailed the validity of the impugned judgment mainly on two counts. Firstly, it is contended that the claim case is hopelessly barred by limitation and, secondly, that the cause of action occurring beyond the territorial jurisdiction of the Tribunal and, thus, the Tribunal had no power to entertain the claim case and the impugned judgment is, thus, wholly without jurisdiction.
4. Learned counsel for the respondents, on the other hand, has submitted that it is true that the claim has been filed beyond the period of limitation and also beyond the territorial jurisdiction of the place of occurrence as per the provisions of the Act, 1988 as it stood before the 1994 Amendment, but after the 1994 Amendment and the law laid down by the Supreme Court in the case of Dhannalal v. D.P. Vijayvargiya 1996 ACJ 1013 (SC), the submissions made by the learned Counsel for the appellant are of no substance.
5. This court finds substance in the submission of the learned Counsel for the respondents. In the case of Dhannalal v. D.P. Vijayvargiya 1996 ACJ 1013 (SC), the Apex Court after noticing the fact that from the amending Act, it does not appear that the said Sub-section (3) as it stood earlier has been deleted retrospectively. But, at the same time, there is nothing in the amending Act to show that benefit of deletion of Sub-section (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. In para 7 of the judgment, the Apex Court while dealing with the question as to whether a claim petition filed after 14.11.94 can be rejected by the Tribunal on the ground of limitation saying that the period of 12 months which had been prescribed when Sub-section (3) of Section 166 was in force having expired, the right to prefer the claim petition has been extinguished and shall not be revived after deletion of Sub-section (3) of Section 166 with effect from 14.11.1994, answered it in negative. It has been held that when Sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petition cannot be thrown out on the ground that such claim petitions were barred by time when Sub-section (3) of Section 166 was in force. The Apex Court has also considered that Parliament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interests of the victims of the accidents and their heirs if the victims die and one such amendment has been introduced in the Act by the aforesaid Amendment Act 54 of 1994 by substituting Sub-section (6) of Section 158.
6. Learned counsel for the appellant, however, contended that in the case of Dhannalal, 1996 ACJ 1013 (SC), the Supreme Court has only dealt with on the question of limitation and not with respect to the territorial jurisdiction, which depends solely on the cause of action. According to him, in the instant case, the cause of action in present case is where the accident took place, i.e., in the district of Nawada beyond the territorial jurisdiction of the district of Saran (Chapra). He has, thus, contended that the Tribunal at Chapra had no jurisdiction to entertain the claim case.
7. This court fails to appreciate the said submission of the learned Counsel for the appellant. Once on the question of limitation with respect to the 1994 Amendment the law has finally been settled by the decision of the Supreme Court in the case of Dhannalal, 1996 ACJ 1013(SC), this Court is unable to accept that the provisions regarding the territorial jurisdiction as it stood before Amending Act would come in the way of the claimant maintaining the claim case before the Claims Tribunal at Chapra. The Apex Court has held that in view of Amendment Act 54 of 1994, the limitation as it stood before Amending Act will not come in the way of filing the claim case and, as such, the same analogy would apply on the question of territorial jurisdiction also and as per the 1994 Amendment, the claimant can file an application under Sub-section (1) of Section 166 either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides.
8. By Amendment Act 54 of 1994, Sub-section (2) of Section 166 has been substituted as follows:
(2) Every application under Sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
Perusal of said Sub-section (2) shows that after the amendment, the option is of the claimant to choose the jurisdiction of the Tribunal covered by it and in view of the decision of the Apex Court in the case of Dhannalal v. D.P. Vijayvargiya 1996 ACJ 1013 (SC), that the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place and that the claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when Sub-section (3) of Section 166 was in force, in my opinion, there cannot be any question of denying a person from submitting to any of the Claims Tribunal jurisdiction of which is covered by Sub-section (2). This court, thus, does not find any force in the aforementioned objections with respect to jurisdiction raised by the learned Counsel for the appellant.
9. Learned counsel for the appellant has contended that the Tribunal has failed to consider that the driver did not possess the driving licence although it was brought to the notice of the Tribunal by filing a petition and thus, the condition of insurance policy excluding driving by any person, who was not duly licensed, was breached by the insured. However, he has not been able to show that the appellant ever made any endeavour to support the said contention by leading evidence. The Apex Court in the case of Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC), has held that insurer is required to establish wilful violation or infringement of a promise by the insured and that defence of breach of the condition under Section 96 (2) (b) (ii) is not available to the insurer and if it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then insurance company cannot repudiate its statutory liability under Sub-section (1) of Section 96. Thus, in the absence of any evidence led in the court below to support the aforementioned contention of learned Counsel for the appellant, this Court does not find any merit in the same.
10. It has also been contended by the learned Counsel for the appellant that it is a case of contributory liability as the court has found that the claimant was injured in an accident involving head-on collision between two trucks. I do not find force in the said submission of the learned Counsel for the appellant. The learned Tribunal has fully discussed the evidence in this regard and has found that the truck insured with the insurance company collided with the truck of the claimant when the claimant was removing the wheels of the truck and that after collision, the claimant wanted to flee away but the truck fell down from the jack and his leg was crushed under the wheels. Thus, in the aforementioned facts and circumstances, in my opinion, no case of contributory liability is even made out, especially when nothing has come on the record to show that there was any wrong committed by stationary vehicle.
11. Learned counsel for the appellant has also argued on the question of quantum of amount awarded by the Tribunal. According to him, the learned Tribunal has committed error in allowing compensation of Rs. 25,000 for loss of enjoyment and amenities of life for which there is no provision in the Act or the rules.
12. Mr. Ajay Kumar, learned Counsel appearing for the claimant, on the other hand, has submitted that in fact, it is fit case for enhancement of the amount of compensation as the Tribunal had grossly erred in reducing the earning of the claimant to 50 per cent merely on the basis of medical certificate showing the disability as 50 per cent.
13. Prima facie, this Court finds substance in the said submission of the learned Counsel for the respondent-claimant. There is no provision referred to by the learned Counsel for the appellant under which the earning of a person becoming permanent disabled can be reduced to proportionate as per the disability found by the doctor. Section 142 of the Act defines ‘permanent disablement’ and according to the said provision, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in Sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint, besides other nature of injuries mentioned in Sub-clauses (b) and (c), with which we are not concerned in the present case.
14. It cannot be disputed that the claimant suffered serious injury and has become permanently disabled on account of amputation of his leg which falls within the definition of Section 142. Moreover, under more or less similar circumstances, the Constitution Bench of the Supreme Court in the case of Pratap Narain Singh Deo v. Srinivas Sabata 1976 ACJ 141 (SC), where a carpenter fell down during the course of employment and suffered injuries resulting in the amputation of his left arm, held that the injury was of such a nature as to cause permanent disablement and it incapacitated him from performing all work which he was capable of performing, viz., that of a carpenter. In the present case also, injury suffered by the claimant which led to amputation of his leg is of such a nature which incapacitated him from performing all work which he was capable of performing, i.e., of a driver.
15. However, without going into any further detail on the question of enhancement of the amount of compensation, this Court, in the facts and circumstances of the present case, finds no valid ground to interfere with the compensation awarded by the learned Tribunal including for loss of enjoyment and amenities of life.
16. The appeal is, thus, dismissed. The claimant will be entitled to withdraw the amount deposited in this Court in pursuance of the interim order dated 3.7.2001, subject to adjustment on furnishing a certificate of the Claims Tribunal regarding his entitlement and the appellant company shall pay the remaining amount, if any, within two weeks thereafter. However, in case after determination of entitlement, it is found that the claimant is entitled for lesser amount than the amount deposited by the appellant in this Court pursuant to the aforementioned interim order dated 3.7.2001, then the appellant will be entitled for refund of such excess amount, if any, deposited in this Court.