Delhi High Court
National Insurance Co Ltd vs Sunil Kumar And Ors on 13 November, 2014
$~A-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 13, 2014
+ MAC.APP. 694/2012
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr.Pankaj Seth, Advocate
versus
SUNIL KUMAR AND ORS ..... Respondents
Through: Mr.Pradeep Sehrawat, Advocate
alongwith Respondent No.1 in
person.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. By the present appeal the appellant seeks to impugn the Award dated
04.04.2012.
2. The brief facts which led to the filing of the claim petition are that
Shri Sunil Kumar, respondent No.1 met with an accident on 25.11.2003. He
was proceeding towards Gupta Farm, Dhansa Road, Dhansa Border, New
Delhi on his Bajaj Chetak scooter. On Dhansa Border he was hit by a
truck(Tata make) which came from behind and was driven by respondent
No.2 [now deceased and represented by respondent No.2(a) to 2(e)] at a
very high speed in a rash and negligent manner. The offending vehicle hit
the scooter and thereafter ran over the legs of respondent No.1. Based on
the evidence on record, the Tribunal awarded the following compensation
1 Medicines and Treatment : Rs. 1,25,000/-
2 For loss of income on account
of medical leaves : Rs. 2,08,478/-
3 For loss of earning on account of
Disability : Rs. 15,35,615/-
4 Pain and Suffering : Rs. 50,000/-
5 Conveyance & Special Diet : Rs. 25,000/-
6 Loss of Amenities : Rs. 25,000/-
Total : Rs.19,69,093/-
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3. Learned counsel appearing for the appellant submits that the Award
amount is on the higher side. He points out that respondent No.1 was
working as a Fireman in Delhi Fire Service. Even after the accident he
submits that respondent No.1 continues to be employed by the Delhi Fire
Service and continues to earn his normal income. He submits that the
Tribunal has taken into account the fact that the appellant had 94 per cent
permanent physical disability in relation to left lower limb. He further
submits that the Tribunal has wrongly assessed the functional disability at
94% and granted compensation on account of loss of wages due to physical
disability assessing the functional disability at 94 %.
4. A perusal of the Award shows that the Tribunal has noted that
respondent No.1 on the date of the accident is stated to be of 26 years.
However, a perusal of the Disability Certificate shows his age to be 33
years. Hence, the Tribunal took his age to be 28 years. The Disability
Certificate is Ex. PW1/102. The Tribunal noted that respondent No.1 is
physically handicapped having 94 per cent permanent physical impairment
in relation to left lower limb. The Tribunal, without going into the facts of
the case pertaining to loss of income due to disability suffered by respondent
No.1, simply assessed the functional disability at 94 % based on the
Disability Certificate.
5. The Supreme Court in the case of Raj Kumar vs. Ajay Kumar and
Anr. (2011) 1 SCC 343 stipulated the mechanism to be adopted by the
Tribunal for assessing the functional disability suffered by an injured
claimant. In Para 14, the Supreme Court has held as follows:-
"....For example, if the left hand of a claimant is amputated,
the permanent physical or functional disablement may be
assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually be
hundred percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as he
could perform his clerical functions; and in that event the loss
of earning capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical disability,
but far less. In fact, there may not be any need to award any
compensation under the head of 'loss of future earnings', if the
claimant continues in government service, though he may be
awarded compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not found
suitable for discharging the duties attached to the post or job
which he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but lesser post
with lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity. It may
be noted that when compensation is awarded by treating the
loss of future earning capacity as 100% (or even anything
more than 50%), the need to award compensation separately
under the head of loss of amenities or loss of expectation of
life may disappear and as a result, only a token or nominal
amount may have to be awarded under the head of loss of
amenities or loss of expectation of life, as otherwise there may
be a duplication in the award of compensation. Be that as it
may."
6. A perusal of the above portion of the judgment clearly shows that
Court has noted that where the claimant is a Clerk in a Govt. service and
despite physical disability, he continues in Govt. service, there may not be
any need to award compensation under the Head of Loss of future earnings.
7. A perusal of the evidence of PW1, namely, respondent No.1 by way
of affidavit would show that he admits that despite the accident which took
place, he continues to be employed by his office.
8. As the appellant has suffered no loss of pay he has suffered no
functional disability. Hence, no compensation can be given for loss of future
pay based on the aforesaid disability.
9. The grievance of respondent No.1 is that on account of the accident,
he has suffered loss of Special Pay and Risk Allowance. His grievance also
is that he has suffered loss of promotion inasmuch as he was likely to have
been promoted as Leading Fireman, Sub-Officer and thereafter as Station
Officer. All these posts have a higher pay scale and involve higher
perquisites and benefits. These facts are clearly spelt out in his evidence by
way of affidavit.
10. Keeping in view the judgment of the Supreme Court in Raj Kumar vs.
Ajay Kumar (supra), in my opinion, the loss that is suffered by respondent
No.1 is actually the loss of promotion chances and the loss of Risk
Allowance and Special Pay.
11. The Supreme Court in the case of Ranjana Prakash & Ors. vs.
Divisional Manager & Anr., 2011 (8) SCALE 240 held that where the
claimants before the Tribunal have not preferred any cross-objections or
cross-appeals, it is not possible for the High Court in Appeal to enhance the
compensation amount. However, the Supreme Court held that as a ground
of defence the claimants can always point out any error or deficiency in the
Award of the Tribunal as a counter to any contentions raised by the
insurance company or owner of the vehicle to ensure that the computed
compensation amount as per the award is not reduced based on the
contention of the owner of the offending vehicle or the Insurance Company.
In para 6 the Supreme Court held as follows:-
"6. We are of the view that High Court committed an error in
ignoring the contention of the claimants. It is true that the
claimants had not challenged the award of the Tribunal on the
ground that the Tribunal had failed to take note of future
prospects and add 30% to the annual income of the deceased.
But the claimants were not aggrieved by Rs. 23,134/- being
taken as the monthly income. There was therefore no need for
them to challenge the award of the Tribunal. But where in an
appeal filed by the owner/insurer, if the High Court proposes
to reduce the compensation awarded by the Tribunal, the
claimants can certainly defend the quantum of compensation
awarded by the Tribunal, by pointing out other errors or
omissions in the award, which if taken note of, would show
that there was no need to reduce the amount awarded as
compensation. Therefore, in an appeal by the owner/insurer,
the Appellant can certainly put forth a contention that if 30% is
to be deducted from the income for whatsoever reason, 30%
should also be added towards future prospects, so that the
compensation awarded is not reduced. The fact that claimants
did not independently challenge the award will not therefore
come in the way of their defending the compensation awarded,
on other grounds. It would only mean that in an appeal by the
owner/insurer, the claimants will not be entitled to seek
enhancement of the compensation by urging any new ground,
in the absence of any cross-appeal or cross-objections."
12. Accordingly, the Award is modified.
13. As per the evidence by way of affidavit of PW1, the respondent No.1
was receiving Risk Allowance of Rs.150/- per month and Special Pay of
Rs.1200/- per month. This averment is not challenged. Hence, he has
suffered a loss of Rs.1350/- per month on account of loss of pay under these
heads. Accordingly, the respondent No.1 would be entitled to compensation
on account of loss of the said pay (Rs.1350 x12 x17) i.e, Rs. 2,75,400/-.
14. Coming to the contention of loss of promotions, reference may be had
to the judgment of this Court in MAC. App. 672/2013 titled Ashok Kumar
Yadav vs. The Oriental Insurance Co. Ltd. dated 05.09.2014 where the
injured was a Head Constable in Delhi Police and was assessed with 12%
permanent disability. This Court awarded on account of loss of income due
to loss of promotion chances a sum of Rs.3,50,000/-.
15. Reference may also be had to the judgment of this Court in
MAC.App.220/2007 titled G.S.Bhandari vs. Nirmal Singh & Ors. dated
18.09.2014 where the injured was a Colonel in the Army and stated to have
missed his promotions to the ranks of Brigadier and Major General due to
20% disability with relation to his leg. This Court awarded him
Rs.8,00,000/- on account of compensation for disability due to loss of
promotional chances. This Court on the issue of loss of income due to loss
of promotion chances noted the following judgements:
"16. I may now look at some of the judgments
passed on somewhat similar facts by the other High
Courts and the Delhi High Court. The Himachal Pradesh
High Court passed a judgment in the case of Major Vivek
Gupta vs. Smt.Parvati Devi and Ors.,
MANU/HP/2072/2011. In that case the accident took
place in the year 2000. The claimant had urged that the
nature of his injuries had totally ruined his career and he
is unable to be promoted to other ranks. At the time of
the accident he was undergoing an advance course at the
Infantry School, Mhow. It was urged that he was to be
assigned duties not involving strenuous exertions and that
his future promotions had been affected and in future he
will no longer to be promoted to a rank higher than of a
colonel and above. In those facts the H.P.High Court
held that the petitioner is debarred from future
promotions and as compensation for loss of future
service, career and promotional avenues, an amount of
Rs.5 lacs was awarded for his delayed/future promotions
and inability to take up specialised courses.
17. The Shillong Bench of Gauhati High Court passed a
judgment in the case of Maj.Shailendra Kumar Pathak
vs. United India Insurance Co. Ltd. and Ors., 1996 ACJ
602; MANU/GH/0082/1995. In that case the accident
took place in the year 1989 and the contention was that
the claimant had become permanently handicapped and
being a Major in the Army he had been put in low
medical category for loss of promotion up to the rank of
Colonel. For his loss of earning, constraint on
promotion, injuries and agony, the High Court awarded
Rs.2 lacs by way of compensation.
18. The Jammu and Kashmir High Court passed a
judgment in the case of Ashwani Kumar Munshi vs.
Mehraj-ud-din Mandoo and Ors., 2011 ACJ 572,
MANU/JK/0152/2009. That was a case in which the
claimant was working as a Major in the Army at the time
of the accident. The claimant was considered for
promotion by the Selection Board to the rank of
Lt.Colonel but his name was withdrawn due to the reason
that he had fallen in the medical category. In that case
also the claimant who was 38 years of age, had averred
that he was likely to retire as a Brigadier in the Army and
his chances for promotion have been ruined on account
of the medical category being downgraded. The High
Court awarded a compensation of Rs.2,40,000/- on
account of future loss of income in addition to the
income already awarded by the Tribunal. The High Court
had assessed the future loss of income as Rs.2,000/- per
month and had taken a multiplier of 10 to award the sum
of Rs.2,40,000/-.
19. There are two judgments of this High Court in
somewhat similar facts. One is Major Benjamin Chacko
vs. Maha Singh and Ors., I(1987) ACC 110;
MANU/DE/0514/1986. That was a case where the
accident took place in 1972. The claimant was a Major in
the Army at the time of the accident. The claimant had
been promoted as a Lt.Colonel and was selected for
promotion to the post of Brigadier but was not actually
promoted because of medical unfitness. This Court
awarded an additional sum of Rs.1 lac towards
compensation. Another judgment of this Court is
Maj.(now Col.Retd.)Dushyant Lal Kapoor vs.
Lt.N.K.Kohli and Ors., MANU/DE/3884/2009. That was
an accident that took place in 1979. It was averred that
the claimant had become permanently handicapped and
his promotion chances to the post of Lt. Col.had got
ruined and delayed. In view of the same this Court
awarded Rs.30,000/- for loss of future promotions.
20. This Court in MAC.APP.No.599/2013 titled Vikas
Kumar vs. Sunit Kumar vide a recent order dated
27.08.2014 in the case of a Delhi Police Constable where
also the claimant had received no loss of pay, awarded
compensation to the tune of Rs.6,54,000/- on account of
loss of promotions. In the said case this Court relied
upon the judgment of the Punjab and Haryana High
Court in the case of National Insurance Co.Ltd. vs.
Rajbir Singh and others, 2012 ACJ 1826 and another
judgment of the Delhi High Court in the case of National
Insurance Co.Ltd. vs. Harbans Singh & Ors. delivered
on 28.3.2014 in the MAC APP.394/2011. This court
took judicial notice of the fact that given the physical
condition of the claimant in that case the chances of
promotion in Delhi Police are quite remote.
21. It is true that no personnel from the Army
headquarters was summoned to elaborate on the effect of
his disability on the promotion chances of the appellant.
However, judicial notice can be taken of the fact that
those in the Army who are having low medical category
would not be considered fit for operational duties/active
field duties and chances for promotion would also
suffer."
16. I assess the loss of income at 40 per cent of the income on account of
loss of income due to loss of promotion. The respondent No.1 would hence
be entitled to loss of income due to loss of promotion chances at
Rs.6,53,453/- (8008 x 12 x 40/100 x 17).
17. The learned counsel appearing for the appellant also submits at this
stage that a sum of Rs.2,08,478/- has been awarded for loss of income on
account of medical leaves. He submits that this amount should be deducted
against the compensation granted as per order of this Court. A perusal of the
award shows that the Tribunal noted that the respondent No.1 was not in a
position to attend to his work for a period of 791 days. Based on this, the
Tribunal assessed the loss of income on account of leave as Rs.2,08,478/-
relying upon the judgment of this Court dated 02.12.2011 in MAC
App.No.719/2010 titled Jagdish Prashad Singh vs. Umed & Ors. I see
reason to modify the said directions of the said award on account of loss of
income due to medical leaves.
18. Hence, the total compensation now reads as under:
1 Medicines and Treatment : Rs. 1,25,000/-
2 For loss of income on account
of medical leaves : Rs. 2,08,478/-
3 Loss of special pay : Rs. 2,75,400/-
4 Loss of Promotion : Rs. 6,53,453/-
5 Pain and Suffering : Rs. 50,000/-
6 Conveyance & Special Diet : Rs. 25,000/-
7 Loss of Amenities : Rs. 25,000/-
Total : Rs.13,62,331/-
Hence, award amount is reduced from Rs.19,69,093/- to
Rs.13,62,331/-
19. As per the interim order dated 09.07.2012, the appellant deposited 50
per cent of the award amount along with upto date interest and
Rs.3,00,000/-, as was directed in the above order, has already been released
to respondent No.1.
20. All interim orders passed by the Court stand vacated. In case any
additional amount is payable by the appellant, the same be deposited along
with accumulated upto date interest, as per the above order with the
Registrar General of this Court. The same shall thereafter be released to
respondent No.1.
21. The appeal is disposed of.
JAYANT NATH, J
NOVEMBER 13, 2014
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