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2009 DIGILAW 1190 (HP)

COL. M. K. CHAUHAN v. COSMO FERRITES LTD.

2009-12-03

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud, J.- This appeal has been preferred by the appellant-petitioner, who was injured in an accident, when his car No. HP-03-1782 met with an accident with a Mini Bus (Swaraj Majda) No. HP-15-2542, near Sadhupul. The appellant, at that time, was serving as a Colonel with the Indian Army. 2. The case pleaded by the appellant-claimant herein is that he was going from Sadhupul to Chail in his car when he was serving as a commander of NCC Group, in Himachal Pradesh. His car was hit by the offending vehicle owned by respondent M/s Cosmo Ferrites Limited causing extensive injuries to him. He suffered multiple injuries in the cervical spine, skin lesions on one side of the chest, lacerated wound on right forearm, tenderness in the left gluteal region, blurring of vision in right eye with sub conjuvitival hemorrhage, lacerated wound over right knee, bleeding from nose and mouth etc. He was admitted at the Indira Gandhi Medical College, Shimla, thereafter he was taken to the Military Hospital, Shimla and then to the Western Command Hospital, Chandimandir and PGI Chandigarh for treatment. He remained as indoor patient in these hospitals and on the date when the petition was instituted, he was still undergoing treatment. A sum of Rs. 60 lacs was claimed on account of the injuries sustained and loss in service suffered by him. He had been awarded the Vishisht Sewa Medal by the Union of India for his exemplary work in service. The appellant pleads that on 13.11.1997 he was to be considered for promotion to the rank of Brigadier but because of his medical down-grading he was not promoted. In case he was not promoted, he would have continued as Colonel for a period of four to six years but because of the injuries suffered, he was boarded out of service. 3. The petition was resisted by the respondents. The learned Tribunal settled eight issues. Two crucial issues related to the fact as to whether the accident took place because of rash or negligent driving of respondent No. 2 Satpal and the amount of compensation to which the petitioner was entitled to. 4. On the first issue, the learned Tribunal concluded that the accident had occurred because of the fault of the bus driver. Two crucial issues related to the fact as to whether the accident took place because of rash or negligent driving of respondent No. 2 Satpal and the amount of compensation to which the petitioner was entitled to. 4. On the first issue, the learned Tribunal concluded that the accident had occurred because of the fault of the bus driver. On the second issue with respect to the quantum of compensation payable, the Tribunal on the basis of medical certificate Ext.PW1/A issued by the Board of Doctors at the Indira Gandhi Medical College, Shimla holding that he had suffered 15% permanent disability due to post traumatic stiffness of cervical spine and left knee joint, awarded a sum of Rs. 4,60,000/- with interest at the rate of 6% per annum from the date of the petition till the award amount was deposited. On the medical expenditure, incurred by the petitioner Ext.P2/1 to Ext.P-2/137, the learned Tribunal holds that it is not possible to segregate this amount and the expenditure incurred at Batra Hospital for undergoing angiography etc. was not relatable to the accident. This finding was rendered by the Tribunal on the basis that the appellant was suffering from diabetes (Type-II) and hypertension, which were not relatable to the accident. The loss was assessed at Rs. 54,000/- per annum. Multiplier of eight was applied for calculating compensation to be awarded. 5. Learned counsel appearing for the appellant urges that the learned Tribunal was wrong in assessing the quantum of loss as awarded because he did not consider that the appellant was incapacitated for doing any work for the rest of his life from the disability inflicted because of the wrongful acts of respondents No.1 and 2. The actual loss of income was assessed at Rs. 54,000/- per annum for a period of eight years was not correct and that the appellant would have continued in service till the age of 60 years. His consideration for promotion was totally proved. He also urged that the appellant had to undergo bye pass surgery which was directly relatable to the accident and that he would have been promoted to the rank of Brigadier and Major General considering his service record but due to medical down-grading he could not be promoted. In all, he had six years of more service left as Colonel even if he was not promoted. In all, he had six years of more service left as Colonel even if he was not promoted. It was this entire service which was to be compensated in monetary terms. He was compelled to leave his job and assessment of Rs. 54,000/- per annum was a wrong assessment. 6. I have heard learned counsel for the parties and have gone through the record. There is no dispute with respect to the fact that the accident infact occurred and that this was relatable to the wrongful acts of respondent No.2 who was driving the vehicle for and on behalf of respondent No.1. So far as the findings of negligence are concerned, those cannot be varied and set aside for the reason that the learned Tribunal has considered the evidence in detail and arrived at this conclusion. 7. On the second aspect, learned counsel urges that from the proceedings of the Medical Board Ext.P7 and medical certificate Ext.PW1/A, it was clear that the appellant had suffered injuries of a nature which disabled him from continuing in service. 8. Considering Ext.PW1/A, the Medical Board consisting of Dr. D.C. Chamail Senior Medical Superintendent, Dr. L.R. Verma, Assistant Professor Orthopedic, Dr. Anil Chauhan, Assistant Professor Eye, and Dr. Jyoti Mehta Assistant Professor Neurology after examining the appellant on 2.11.1999 certified that he was having 15% permanent disability due to post traumatic stiffness of cervical spine and left knee joint. The Board further opined that keeping in view the field defect in the right eye the visual disability is less than 30% despite the distant visual acuity being normal. Ext.P7 is the proceedings of the Medical Board held on 14.9.1997. The disabilities with which the appellant has been diagnosed are ankylosing spondylosis, hypertension and NIDDM (Type-IIaa). The Board records: - “MEDICAL BOARD PROCEEDINGS (Categories/Sick Leave- All Ranks) 1. Name 2. Service No. 3. Rank/Rate 4. Unit M K Chauhan IC-26599-W Col HQ NCC Shimla 5. Service 6. Arm/Corps/Branch/Trade 7. Age ARMY MADRAS REGT 51 Yrs. Inf Officer. 8. Address on leave, if applicable 9. Dated duty on 14.9.07 10. Authority for Board 11. Date of Board 12.Place of Board. AO 43/78 04 Oct 97 MH Shimla STATEMENT OF THE CASE- PART-1 13.Principal disabilities 1.ANKYLOSINGSPONDYLOSIS-720, 2.HYPERTENSION-401 Note:- Boards subsequent to the first should record here the progress of the case since last appearance. This serving officer a case of ankylosis spondylosis admitted for review. Dated duty on 14.9.07 10. Authority for Board 11. Date of Board 12.Place of Board. AO 43/78 04 Oct 97 MH Shimla STATEMENT OF THE CASE- PART-1 13.Principal disabilities 1.ANKYLOSINGSPONDYLOSIS-720, 2.HYPERTENSION-401 Note:- Boards subsequent to the first should record here the progress of the case since last appearance. This serving officer a case of ankylosis spondylosis admitted for review. C/o Stiffness of nect and cervical spine. N/E fever and trauma. On exam : Average built Afebrile No other positive finding. Systemic Exam : NAD Local exam : forces is obliterated. Cervical Spine: Local tenderness. No neurological deficit. Lumbar Spine: Lumbar Iordosis obliterated Spass minimum PTD : 24” STR Bilateral 70 No eurological deficit. Chin Sternum distance-10 cm Occepat vault distance-6 cm Hip and Knee - WNL Inv : Hb 14 gm, BSR-08 mm. X-ray Lumbar spine AP/st-evidence of ankylising spondalitis. Recommended cat A-8 Spine mobilization exercise. Sd/-Xxxxx (HC Talan) Lt. Col AMC Classified spl surgery & Orthopaedic surgeon CE (RC) Chandimandir In view of the above, officer is brought before the board.” 9. Therefore, he has been placed in Shape-III. At the time of his examination, the appellant was 51 years. 10. Adverting to the evidence on record, PW1 Dr. D.C. Chamail has proved Ext.PW1/A and denied the suggestion that ankylosing spondylosis is not attributable to the accident. The appellant has appeared as PW2. He has deposed about the accident, treatment at IGMC Shimla, Military Hospital, Shimla and Chandimandir and PGI Chandigarh. He states that he was Commander in NCC Himachal Pradesh Unit from December, 1994 to February, 1998 and was appointed as Track Manager for following All India Track Expedition. Before this accident, he was in the medical category according to which in the normal circumstances he would have been promoted to the rank of Brigadier and he was informed about this fact by letter dated 13.11.1997 Ext.P1. In the normal course, he would have remained as Brigadier for three or four years and thereafter he would have been promoted to the rank of Major General. He states that he had made this statement on the basis that he had very good record in army service. Because of the medical condition he had to take pre-mature retirement from service on 1.3.1998, otherwise, he would have remained as Colonel upto 2002 and thereafter he would have got re-employment for 2 to 6 years. He states that he had made this statement on the basis that he had very good record in army service. Because of the medical condition he had to take pre-mature retirement from service on 1.3.1998, otherwise, he would have remained as Colonel upto 2002 and thereafter he would have got re-employment for 2 to 6 years. He denied the suggestion that he was considered for promotion as Brigadier in the year 1995 and was not found fit to be promoted. He admits that he took voluntary retirement and was not boarded out because of his injuries, but states that would have been boarded out because he was suffering and undergoing treatment and he was medically categorized in the lower category, and to avoid humiliation he opted for voluntary retirement. 11. PW3 Major Sandeep Singh Kang posted in the military hospital has proved the hospitalization record of the appellant. He also admits that the appellant would have continued in the rank of Colonel till his normal age but could not have been promoted to the next higher rank. 12. Learned counsel appearing for the appellant submits that this evidence on record is sufficient to establish that the appellant has infact lost his future earnings of higher rank and had to undergo considerable amount of pain and suffering. He relies upon the decision of Punjab and Haryana High Court in Major Bhupinder Singh Grewal Vs. Punjab Roadways, Pathankot and others, 2009(2) T.A.C. 591 (P&H). In this case, the appellant was a Major in the Indian Army who was injured while he was traveling in Punjab Roadways bus which collided with an oil tanker. He suffered multiple injuries and claimed 55% disability. The contention raised on his behalf is in the following terms: “5. The appellant is thus said to have suffered 55% disability. He was aged 40 years. It was pleaded that because of the serious injuries that he had received he was placed in a lesser medical category and was also deprived of the promotions which he was entitled to. In the normal course of his service he would have retired as a Major General at the age of 58 years but he was retired at the age of 52 years because of his physical condition. In the normal course of his service he would have retired as a Major General at the age of 58 years but he was retired at the age of 52 years because of his physical condition. It was next contended that the appellant was a promising soldier who had earned his diploma from Russia which would have put him in good stead vis-à-vis his other colleagues and probably would have got him promotion as a Brigadier because persons similarly situated like the appellant already stood promoted as Brigadiers.” 13. He was awarded a compensation aggregated at Rs. 5 lacs. The next decision relied upon by the learned counsel is Vijay Luxmi and others Vs. State of Haryana & others, 2005 (1) T.A.C. 933 (P&H). In this case, the Court had awarded a sum of Rs. 10 lacs for the death of brilliant Scientist, who was aged 31 years which compensation was enhanced to Rs. 11,67,400/-. 14.Before adverting to the decisions relied upon by learned counsel appearing for the appellant, the evidence on record shows that if the appellant had not taken voluntary retirement, he would have continued in the rank of Colonel till his superannuation in the normal course of events. This emerges from the evidence of the appellant PW2 as also PW3 Major Sandeep Singh Kang. There is no evidence on record to show that the appellant was either boarded out or recommended to be boarded out for the disability inflicted on him by the accident. The only claim which can be made by the appellant is that his promotion to the next higher rank was adversely affected because of the injuries suffered by him. This fact is also unrebutted. In such an eventuality, the compensation to be given to the petitioner-appellant was the difference between the pay and perquisites which he actually earned as Colonel and that which he would have earned as Brigadier. There is no evidence on record to show the pay of Brigadier. In any event, there is also no record to show that the appellant was forced to take voluntary retirement because if he would have continued in service, he would have been boarded out by the Army authorities for the injuries he suffered. In these circumstances, the compensation which has been granted to the appellant by assessing the disability at 15% cannot be said to be grossly inadequate. In these circumstances, the compensation which has been granted to the appellant by assessing the disability at 15% cannot be said to be grossly inadequate. On the two decisions relied upon by learned counsel appearing for the appellant, all that need be said is that in the first decision i.e. Major Bhupinder Singh Grewal Vs. Punjab Roadways, Pathankot and others, 2009(2) T.A.C. 591 (P&H), there is no retirement from the Army because of the injuries. The second decision turns on its own facts. 15. On the other two disabilities of the appellant namely non-insulin dependant diabetes NIDDM Type-II and hypertension there is no medical evidence on record to show or establish that these diseases are the direct result of accident or relatable to the accident. 16. The award is however modified to the extent that the appellant shall be entitled to interest at the rate of 10% from the date of accident till the amount is deposited by the respondents. The appeal is accordingly disposed of. There shall be no order as to costs.