Delhi High Court
New India Assurance Co Ltd vs Tek Bahadur & Ors on 17 December, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on:17th December, 2013
+ MAC.APP. 472/2011
TEK BAHADUR ..... Appellant
Through Mr. F.K. Jha, Advocate
versus
RAM BHAROSE & ORS ..... Respondent
Through Mr. Anand Vardhan Sharma, Adv. with
Mr. V.S. Vashdev, Adv. for R-3.
+ MAC.APP. 504/2011
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through Mr. Anand Vardhan Sharma, Adv. with
Mr. V.S. Vashdev, Adv.
versus
TEK BAHADUR & ORS ..... Respondent
Through Mr. F.K. Jha, Advocate for Respondent
No.1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. These two Appeals arise out of a judgment dated 23.02.2011 passed by
the Motor Accident Claims Tribunal (MACT-03, Dwarka Courts, New
Delhi) (the Claims Tribunal) whereby a compensation of ` 12,34,260/-
was awarded in favour of Tek Bahadur, for having suffered injuries in a
motor vehicle accident which occurred on 29.01.2009.
2. MAC APP.472/2011 has been preferred by Tek Bahadur (hereinafter
referred to as the Claimant) for enhancement of compensation whereas
MAC APP.504/2011 has been preferred by the New India Assurance
Company Limited (the Insurance Company) stating that the compensation
awarded is excessive and exorbitant.
3. On 29.01.2009 at about 7:15 a.m., while the Claimant was crossing the
road of VRC colony and Shankar Vihar, he was hit by a speeding Lancer
car bearing No.DL-9CC-5313. The Claimant was initially removed to
R.R. Hospital, Delhi Cantt. He was found to have suffered multiple
fractures of both bones, left leg with fracture of femur neck. The
Claimant remained admitted in R.R. Hospital, Delhi Cantt. till 15.04.2009
where he was operated upon. Thereafter, he was again admitted in
Command Hospital, Western Command, Chandi Mandir, Chandigarh for
further follow up. The Claimant claimed that he suffered 60% disability
on account of the injuries suffered. The Claims Tribunal awarded the
compensation under various heads which is extracted hereunder:-
Sl. Compensation under various heads Awarded by the
Claims Tribunal
No.
1. Loss of earning capacity `11,89,260/-
2. Pain & Suffering ` 30,000/-
3. Special Diet ` 10,000/-
4. Conveyance Expenses ` 5,000/-
Total ` 12,34,260/-
4. It is urged by the learned counsel for the Claimant that the Claimant who
was working as a Hawaldar in the Indian Army was prematurely
discharged from the military services and the Claims Tribunal erred in
awarding a compensation of only `11,89,260/- towards loss of income.
His salary had increased to about `20,000/- at the time of his discharge
and he should have been awarded full compensation for loss of income on
the multiplier of 14, which was relevant to his age of 42 years at the time
of his discharge; the compensation awarded towards pain and suffering is
inadequate; no compensation has been awarded towards loss of amenities
and inconvenience caused to him and the compensation awarded towards
special diet and conveyance is highly disproportionate.
5. On the other hand, the learned counsel for the Insurance Company argues
that the Claimant was discharged on completion of full service of 24
years. No evidence was produced by the Claimant to show as to how
many more years he would have been continued in Army service as a
Hawaldar. No evidence was produced that he was likely to be promoted.
The disability certificate reflected only temporary disability in respect of
his left lower limb, which cannot be taken as functional disability or loss
of earning capacity. The compensation, it is urged, awarded towards loss
of future income is excessive and exorbitant.
6. Since the claimant had claimed that he was discharged from the military
service on account of the injury suffered by him, he was permitted to lead
additional evidence to prove his premature discharge. The Claimant
examined Mr. V.Karthikeyan Naik who deposed that the Claimant was
boarded out from the army service as he was unfit for military service due
to the accident. Neither any oral nor any documentary evidence was
produced by the Claimant to show the further service years he was
entitled to put in the Indian Army as a Hawaldar.
7. As per the documents placed on record, the Claimant had joined the
military service on 18.02.1988. He was discharged from the service on
01.03.2012 although the instant accident occurred on 29.01.2009. The
terms and conditions of JCOs/OR available on the website of the Indian
Army are extracted hereunder:-
"Terms and Conditions: JCOs/OR
7. Rank Structure and Age/Tenure/Service Limit for Retirement.
(a) Sepoys. ReferAI1/S/76 as amended and Min of Def Letter No
F14(3)/98/D(AG) dated 03 Sep 98.
Rank Present Criteria
(GD Categories/ Semi- 17 years of service with colours extendable
skilled categories) by two years by screening and two years in
Sep - Group I reserve or till attainment of 42 years of
age, whichever is earlier.
(Skilled/Tech 20 years of service with colours extendable
Categories/Specialist by two years by screening and three years
Categories and in reserve or till attainment of 48 years of
Tradesmen) Sep - age, whichever is earlier.
Group II
(b) NCOs. Refer to Min of Def Letter No F. 14(3)/98/D(AG) dt 03 Sep
98.
Ranks Present Criteria
Naik On completion of 22 years' service with
colours extendable by two years by
screening or 49 years of age, whichever is
earlier.
Dafadar/Havildar On completion of 24 years' service with
colours extendable by two years by
screening or 49 years of age, whichever is
earlier.
Note: Reserve liability of all NCOs is up to 51 years of age or two years
after retirement, whichever is earlier."
8. Thus, it would be seen that a Hawaldar is liable to be discharged on
completion of 24 years of service. The same is, however, extendable by
two years by screening committee. Thus, at the most what the Claimant
can claim is the salary for a period of two years at the salary last drawn
by him for a period of two years because his service was extendable only
by two years.
9. The disability certificate dated 09.02.2010 (Ex.PW-2/1) produced on
record shows that the Claimant had suffered fracture of both bones, left
leg on 29.01.2009. Open reduction and internal fixation of fracture was
done. There was residual shortening of left leg by 1.5 cms. and there was
stiffness of left knee and ankle joint. The disability certificate further
reveals that the disability was assessed to the extent of 60% for one year
and reassessment was recommended after one year.
10. In Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343, the Hon'ble
Supreme Court emphasised that permanent disability and functional
disability are two different things. The permanent disability may cause
loss of earning capacity in different persons depending upon the nature of
their profession, occupation or job, etc. etc. It was also emphasised that
normally expert evidence ought to be taken to assess the percentage of
functional disability of a person who has suffered any permanent
disability. Para 19 of the report in Raj Kumar is extracted hereunder:-
"19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do
not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the
whole body of a person, cannot be assumed to be the percentage of
loss of earning capacity. To put it differently, the percentage of
loss of earning capacity is not the same as the percentage of
permanent disability (except in a few cases, where the Tribunal on
the basis of evidence, concludes that the percentage of loss of
earning capacity is the same as the percentage of permanent
disability).
(iii) The doctor who treated an injured claimant or who examined
him subsequently to assess the extent of his permanent disability
can give evidence only in regard to the extent of permanent
disability. The loss of earning capacity is something that will have
to be assessed by the Tribunal with reference to the evidence in
entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job, age,
education and other factors."
11. It is well settled by a catena of judgments that while awarding
compensation in personal injury cases, an attempt should be made to put
the injured in the same position as he was as far as money is concerned.
In Arvind Kumar Mishra v. New India Assurance Company Limited,
(2010) 10 SCC 254, in para 9 the Supreme Court observed as under:-
"9. We do not intend to review in detail state of authorities in
relation to assessment of all damages for personal injury. Suffice
it to say that the basis of assessment of all damages for personal
injury is compensation. The whole idea is to put the claimant in
the same position as he was insofar as money can. Perfect
compensation is hardly possible but one has to keep in mind that
the victim has done no wrong; he has suffered at the hands of the
wrongdoer and the court must take care to give him full and fair
compensation for that he had suffered."
12. Although the Claimant was permitted to prove the loss of his income and
exact functional disability by leading additional evidence during the
pendency of the appeal, he was however, content to place the entire file
on record concerning his treatment. Page 25 of the documents (Ex.A-2/1-
181 collectively) produced on record gave details of the various army
personnel who were not granted extension and were retired on completion
of their service. The details of the Claimant are extracted hereunder:-
No.
Sl.
No.
Rank
Name
Parent Unit
Present/ERE Unit
Med Cat
Date of Enrolment
Date of Retirement
office
to reach in Record
Date of Pension docus
GTC (Depot Coy)
Date of reporting in 14
NOK for pension
Nationality
Date of SOS
Screened
Screened
/
Not
2. 5346616A Hav Tek 1/4 - A3 18 Feb 88 29 Feb 12 05 Jul 05 Feb Tulasa Nepali 01 Extn
Bahadur GR (Permt) 11 12 Pun Mar not gtd
P2
(Temp)
13. Before his discharge, the Claimant was issued a certificate dated
10.08.2011 which is extracted hereunder:-
"CERTIFICATE OF CIVIL EMPLOYMENT
Certified that No.5346616A Rank: HAV Name: Tek Badr. Pun
Unit 1/4 GR, C/O 99 APO is unfit for military service but fit for
appropriate civil employment as deemed suitable for present
medical condition of the individual/existing diagnosis and pre
placement medical examination."
14. Thus, taking these two documents together, what can be inferred is that
the Claimant was entitled to an extension of two years if he had not
suffered the injury resulting in placing him in low medical category.
Hence, the Claimant would be entitled to loss of income for two years.
15. The Claimant has also not produced on record any reliable evidence to
show the extent of functional disability suffered by him. What can be
gathered from the disability certificate is that there was shortening of left
leg by 1.5 cms. There was stiffness in left knee and left ankle.
Unfortunately, even the extent of stiffness was not brought on record by
the Claimant. As stated earlier, this Court even permitted the Claimant to
produce additional evidence in the appeal, but in spite of all this, evidence
was not brought in. In the circumstances, this Court will refrain from
remanding the case to the Trial Court to make a fresh assessment as to the
functional disability.
16. Considering the facts stated above, I would take the functional disability
in case of the Claimant to be 30% as after his retirement from military
service as a Hawaldar, he could have got an employment as a security
supervisor or a similar job either in any security agency or in private
sector. The minimum wages of a skilled worker or a Matriculate on the
date of the Claimant's discharge i.e. 01.03.2012 were `9386. Thus, he
would be entitled for compensation towards loss of earning capacity by
giving him benefit of 30% disability (age being 42 years on the date of
discharge). On account of loss of earning capacity the compensation
comes to `6,14,970/- (9386/- + 30% x 12 x 14 x 30%).
17. As per the last pay slip placed on record, the Claimant was getting a
salary of `16,942/- per month as the time of the accident. At the time of
recording of the statement of the Claimant as PW-1 on 27.08.2010, the
Claimant was getting a salary of `20,000/- per month. As stated above,
the Claimant would be entitled to a sum of `4,80,000/- (`20,000/- x 24)
towards loss of income for two years.
18. Since the Claimant's treatment was in the military hospital, the Claimant
admitted that he did not have to spend anything on his treatment.
Considering the nature of injuries, period of admission in the hospital and
confinement at home, I would further make a provision of `50,000/-
towards pain and suffering, `50,000/- towards loss of
amenities/inconvenience, `10,000/- towards special diet, `10,000/-
towards attendant charges and `10,000/- towards conveyance charges for
himself as well as for the attendant. The overall compensation awarded is
computed as under:-
Sl. Compensation under various Awarded by Awarded by
heads the Claims this Court
No. Tribunal
1. Loss of earning capacity `11,89,260/- `6,14,970/-
2. Loss of Income (for two years) -- `4,80,000/-
3. Pain & Suffering ` 30,000/- ` 50,000/-
4. Loss of amenities/inconvenience -- ` 50,000/-
5. Special Diet ` 10,000/- ` 10,000/-
6. Conveyance Expenses ` 5,000/- ` 10,000/-
7. Attendant charges -- ` 10,000/-
Total ` 12,34,260/- ` 12,24,970/-
19. Thus the compensation of `12,34,260/- awarded by the Claims Tribunal is
just and reasonable and does not call for any interference.
20. The compensation awarded shall be released in terms of the order passed
by the Claims Tribunal.
21. Both the appeals stand disposed of accordingly.
22. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company in MAC APP.504/2011.
23. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 17, 2013
vk
