Delhi High Court
G.S.Bhandari vs Nirmal Singh & Ors on 18 September, 2014
$~A-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision 18.09.2014
+ MAC.APP. 220/2007
G.S.BHANDARI ..... Appellant
Through Mr.Parajay Chopra, Advocate with
the appellant-in-person.
versus
NIRMAL SINGH & ORS ..... Respondents
Through Mr. Kanwal Chaudhary, Advocate for
R-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. The present appeal is filed seeking to impugn the Award dated
17.09.2005 by the claimant seeking enhancement of compensation.
2. The brief facts are that the appellant/claimant who was then a Major
in the Army on 09.12.1995 at 8.00 AM in full military uniform was going on
his motorcycle from his residence to his office at Air Defence Missile
Regiment, Delhi Cantt. Near Cariappa Vihar he was hit by a bus said to be
driven rashly and negligently by respondent No.1. He suffered 20%
permanent disability.
3. Based on the evidence the Tribunal concluded that the accident was
caused due to the negligence of respondent No.1. On compensation the
Tribunal awarded a total compensation of Rs.1,80,000/-. The Tribunal noted
that on account of disability there was no loss of income to the appellant as
he continued to work in the Army. However, the Tribunal awarded a sum of
Rs.1,50,000/- for loss on account of disability; a sum of Rs.20,000/- was
awarded for pain and sufferings, a sum of Rs.5,000/- for conveyance and
Rs.5,000/- for special diet.
4. Learned counsel appearing for the appellant duly supported by the
appellant who has argued the appeal in part himself has strenuously urged
that the compensation provided is grossly inadequate. It is urged that the
appellant was a highly decorated soldier prior to the accident and on account
of the accident his medical category has been downgraded and he has lost
many career opportunities. He has missed promotions to the ranks of
Brigadier and Major General.
5. The appellant has urged that he passed out from Indian Military
Academy in 1985 and was commissioned in the same year. He submits that
he had a bright future in the Army but on account of the accident he could
not undergo training at staff college due to low medical category. He further
submitted that he was selected to go abroad for training on Practicable
Control Radar Reporter in Holland but his name was deleted from the
selected list on account of his low medical category. It is further urged that
he received the Vishishth Seva medal from the Commandant for merit and
distinguished service, he participated in operation „Vijay‟(Kargil War) and
was awarded a commendation by the General Officer Commanding-in-
Chief, Northern Command. It has been strongly urged that he is presently
holding the rank of Colonel but has not been given any command position
on account of his low medical category and that those who are not given any
command position do not qualify for higher promotions to the post of
Brigadier and Major General.
6. Strong reliance is placed on the judgment of the Supreme Court in the
case of Rekha Jain vs. National Insurance Company Limited in Civil
Appeal Nos.5370-5372 of 2013 dated August 01, 2013. That was a case of a
claimant who was a celebrity in the sphere of acting and modelling and had
a bright future ahead which was doomed on account of the accident. This
resulted in a number of surgeries on her body. She lost the opportunity to
act in the movies and TV serials and was assessed with 30% disability and
30% disfigurement of her face due to the accident. In those facts the
Supreme Court assessed the functional disability as 100% and held that it is
just and proper to award 50% of the annual income for the purpose of
computation of future loss of income keeping in view the fact that she may
not be in a position to act in films, modelling etc. for rest of her life. The
Supreme Court assessed loss of income at Rs.42,50,000/- and for loss of
amenities, pleasure of life and her inability to attend social functions in
future enhanced the compensation to Rs.10 lacs, for pain and sufferings also
a sum of Rs.10 lacs was awarded. In addition a sum of Rs.17,15,726/- was
awarded for medical expenses based on the medical evidence on record.
Hence a total compensation of Rs,79,66,000/- was awarded to the claimant
in that case
7. Learned counsel appearing for the respondent/insurance company has
strenuously urged that the appellant has failed to place on record evidence to
show that he would have been promoted to the rank of Brigadier or Major
General. He points out that it is the aspiration and hope of every young
officer serving in the Indian Army to one day attain the rank of Brigadier or
Major General. It is urged that only limited number of officers attain that
rank. He submits that there is no evidence on record placed by the appellant
to show that he was anywhere in the zone of consideration for promotion to
the said posts but lost out on the said promotions due to the accident. He
submits that no compensation can be given for remote chances of
promotion.
8. The Tribunal in the present case noted that since the appellant was an
Army Officer his entire treatment was free of cost. The Tribunal further
noted that the appellant was admitted in hospital on 8.12.1995 and was
finally discharged on 8.4.1996 after a period of four months. The Tribunal
also noted that the medical category of the appellant was reduced to A-2
category. It was also noted that the appellant could not be selected for the
rank of Brigadier on account of his disability, he had to miss training at Staff
College, he was dropped from the training on Practice and Control of Radar
in Holland. The Tribunal also noted that he was awarded commendation for
Operation Vijay by the GOC, Northern Command. In this background the
Tribunal awarded Rs.1,50,000/- for loss on account of disability keeping in
view that there was no loss of salary to the appellant.
9. We may look at the relevant evidence on record. PW-1 the appellant
in his evidence on his promotion chances has said as follows:-
"I have been reduced to medical category A-2
(permanent) Certificate in this regard is Ex.PW1/3. I was a
high profile officer in my batch and because of disability
suffered by me I have been taken off from the trainee on
practical control radar reporter in Holland. The certificate
issued in this regard is Ex.PW1/4. At the time of the
accident, I was eligible for staff college exam which is a
carrier course for army officer. Because of the injuries
suffered I could not appear in the exam. That exam can be
taken only up to the age of 35 years. And I could not take
that exam because of the injuries suffered in long duration
of the treatment.
At the time of accident, my gross emoluments were
Rs.11,000/- p.m. At present my total salary is Rs.21,000/-.
Because of the disability suffered by me, I can at the most
reached the rank of Col.. I would not be considered for the
rank of Brig.or above. I was awarded commendation card
by GOC Northen Command on 15.8.99 for my
distinguishing services and devotion to duty in Operation
Vijay. Certificate in this regard is Ex.PW1/5."
10. In his cross-examination he states as follows:-
"...It is correct that I did not suffer any loss in salary from
the date of the accident till my recovery. It is wrong to
suggest that an officer whose medical category is down
graded to A-2 (permanent) can go to the rank of
Brigadier/orders issued by the Army authority in this
regard are Ex.PW1/6. It is wrong to suggest that I have not
suffered 20% permanent disability."
11. PW-1/6 which according to the appellant in his evidence are
instructions or orders issued by the Army Authority states that officers under
low medical record are eligible for promotion upto the rank of Colonel only.
12. PW1/4 is an order stating that the applicant is taken off from course
on account of his low medical category pertaining to training on practice
Control of Radar Reporter in Holland.
13. PW-3 Lt.(Dr.) Indrani Sikdar, Base Hospital, Delhi Cantt. in her
evidence said as follows:-
"I have brought the record of the then Major G.S.Bhandari. I
have medically examined him when he was met with an
accident on 9.12.1995. Thereafter, he was operated on
27.12.1995. During operation a K-nail was put along with
circumfencial wiring in the right femur. He is in permanent
disability category A-2 and granted 20% permanent disability.
He is not fit for active field service. The original disability
certificate is Ext.PW3/1."
14. Despite opportunity, she was not cross-examined.
15. General principles relating to compensation in injury cases were
elaborated by the Supreme Court in the case of Raj Kumar vs. Ajay Kumar
and Anr., (2011) 1 SCC 343, ACJ 2011 (Volume I) in paragraph 4.
Relevant portion of which reads as follows:-
"4. The provision of the Motor Vehicles Act, 1988 ('Act' for
short) makes it clear that the award must be just, which
means that compensation should, to the extent possible,
fully and adequately restore the claimant to the position
prior to the accident. The object of awarding damages is to
make good the loss suffered as a result of wrong done as far
as money can do so, in a fair, reasonable and equitable
manner. The court or tribunal shall have to assess the
damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with
reference to the nature of disability and its consequences, is
inevitable. A person is not only to be compensated for the
physical injury, but also for the loss which he suffered as a
result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability
to enjoy those normal amenities which he would have
enjoyed but for the injuries, and his inability to earn as
much as he used to earn or could have earned."
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.
22. In the facts and circumstances of this case, it is apparent that the
appellant is likely to be denied promotions to the rank of Brigadier or Major
General. There is no evidence on record to show to the contrary. In the
light of these facts one cannot be oblivious of the fact that in a career in the
Army the promotion to the high rank is extremely dear to those who don the
uniform. The loss of promotion not only resulted in monetary loss, but also
loss of prestige and self esteem. Given this background the award of
compensation of Rs.1,50,000/- by the Tribunal for loss on account of
disability appears to be quite inadequate. In my view keeping in view the
fact that the accident took place in 1995 it will be appropriate to enhance
this compensation to Rs.8 lacs.
23. Coming to the Award of pain and sufferings the Tribunal awarded
Rs.20,000/-. It is on record that the appellant has suffered 20% disability.
He has remained in hospital for full four months from 08.12.1995 to
08.04.1996. He underwent surgery on 29.12.1995. As per the appellant he
has undergone physiotherapy for a total period of one year. In his evidence
he said as follows:-
"The driver fled from the spot leaving the bus there. I was removed
to Base hospital. I was not operated immediately as there was lot of
abrasions on my right leg. On 29.12.95 I was operated upon nailing
and wiring was made to be done in a major operation. I remained
admitted in hospital till 8.4.96. Then I was given sick leave for 8
weeks. During the period of sick leave for 2 months, I used to walk
on four crèches, thereafter I joined my duties, but I had to walk with
the help of crèches upto December 1996. Thereafter for about a year,
I walk with the help of one stick.
"Because of the injuries suffered, my right leg has shortened by about
2 mm. I cannot walk straight and have to limb. I have suffered 20%
disability. The latest disability certificate issued by the Doctor dated
16.4.2001 copy of which is Ex.PW1/1. The disability is permanent
and medical certificate issued by Col.Dr.M.K.Bhargava is Ex.1/2.
24. Keeping in view these facts and keeping in view the judgment of the
Supreme Court in Kavita vs. Deepak & Ors., (2012) 8 SCC 604, I award a
sum of Rs.1 lac to the appellant on account of pain and sufferings.
25. Total compensation hence now comes to Rs.9,10,000/-. The break up
is as follows:-
a) Compensation for disability including Rs.8,00,000/-
Loss of promotion chances
(b) Pain and sufferings Rs.1,00,000/-
(c) Conveyance Rs.5,000/-
(d)Special Diet Rs.5,000/-
Total Rs.9,10,000/-
26. The Insurance Company/R-3 may deposit the additional amount
alongwith interest @ 6.5% per annum from the date of institution of the
claim petition till deposit in Court within six weeks. The amount may be
released by the Registrar General on receipt from the Insurance company to
the appellant.
27. Appeal is disposed of.
JAYANT NATH, J
SEPTEMBER 18, 2014
n
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