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2018 DIGILAW 655 (JK)

NIC v. Satish Kumar

2018-08-28

SANJEEV KUMAR

body2018
JUDGMENT : 1. These two appeals by the National Insurance Company Limited and two cross objections filed by the injured L/Naik Satish Kumar and Hav. G.S.Rao arise out of a motor vehicular accident which took place on 22.09.2005 at 8.15 a.m. near Koular on Jammu-Birpur road. The injured Satish Kumar and G.S.Rao (hereinafter referred to as “the claimants”) were riding on their motorcycle when they were hit by Tata Tipper bearing registration No.JK02V-9086 (hereinafter referred to as “the offending vehicle”) which was being driven by its driver in rash and negligent manner. The claimants both, Satish Kumar and G.S.Rao, who sustained injuries in the accident, were army personnel and serving as Lance Naik and Havaldar respectively. The injuries sustained by the claimants in the accident resulted in their permanent disablement to the extent of 30% and 40% respectively. Both the claimants filed separate claim petitions before the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”). The claimant Satish Kumar claimed a sum of Rs. 26,99,504/- whereas claimant G.S.Rao claimed a sum of Rs.16,36,489/-. 2. Since both the claim petitions had arisen out of the same accident, as such, these were clubbed and decided by a common judgment by the Tribunal. The Tribunal awarded compensation to claimant-Satish Kumar in the following manner:- PECUNIARY DAMAGES Loss on account of permanent disability Rs.6,42,600/- NON-PECUNIARY DAMAGES: Pain and sufferings Rs.50,000/- Loss of amenities in life Rs.50,000/- Total Rs.7,42,600/- So far as claimant-G.S.Rao is concerned, he was also similarly awarded compensation in the following manner:- PECUNIARY DAMAGES Loss of account of permanent disability Rs.9,79,200/- NON-PECUNIARY DAMAGES Pain and Sufferings Rs.50,000/- Loss of amenities of life Rs.50,000/- Total Rs.10,79,200/- The awarded amount was directed to be paid along with simple interest @ 7.5%. 3. The common award dated 30.07.2008 passed in the cases of claimants Satish Kumar and G.S.Rao has been assailed by the appellant-Insurance Company by filing two separate appeals i.e. MA No.246/2008 and MA No.247/2008. Both the claimants have also filed their cross objections seeking enhancement of the awarded amount. As stated above, since these two appeals and cross objections have arisen out of the same accident and from a common award passed by the Tribunal, as such, they were heard together and are being decided by this common judgment. 4. The appeals by the appellant-Insurance Company are primarily on quantum of compensation awarded by the Tribunal. As stated above, since these two appeals and cross objections have arisen out of the same accident and from a common award passed by the Tribunal, as such, they were heard together and are being decided by this common judgment. 4. The appeals by the appellant-Insurance Company are primarily on quantum of compensation awarded by the Tribunal. It is stated that the compensation awarded by the Tribunal is not just and reasonable. The contention raised is that the Tribunal while awarding compensation in the cases could not have awarded any sum for the loss of future income, particularly when because of the accidental injuries, the future prospects and advancements in life and career had not been affected at all. The precise ground of challenge in both the appeals is that both the claimants who got permanently disabled because of the injuries sustained in the motor vehicular accident in question are army personnel and despite permanent disablement suffered by them they are continuing in the service of the Army and, therefore, there was no question of any loss of future earning insofar as the claimants are concerned. It is, thus, submitted that under the head “loss of future earnings”, the Tribunal could not have awarded any amount and, therefore, fell in error in awarding a sum of Rs.6,42,600/- and Rs.9,79,200/- respectively in favour of the claimants Satish Kumar and G.S.Rao. 5. Per contra, the plea of the claimants in the cross-objections is that the Tribunal should have awarded more sum on account of loss of future earnings, more so when it had been firmly established by way of evidence before the Tribunal that both the claimants would lose their chances of promotion to the higher rank because of the disablement and would retire prematurely which would occasion a loss of Rs.20,49,504 to claimant-Satish Kumar and a Sum of Rs.9,86,489/- to the claimant-G.S.Rao. It is, thus, submitted that in the face of cogent and satisfactory evidence on record, the Tribunal could not have indulged in speculative exercise of fixing the amount on account of loss of future earning and the procedure adopted by the Tribunal in working out the loss of future earnings commensurate to the percentage of disability was not legally correct in the facts and circumstances of the case. It is urged that it is true that the disability suffered by the claimants had not affected their earning immediately, in that, the Army, instead of boarding them out, had retained them in service in shelter appointment but the fact remains that because of the permanent disablement suffered in the accident the claimants were debarred from getting further promotion(s). This would also result in truncating their service career by several years. 6. Having heard learned counsel for the parties and perused the record, I am of the view that the appeals preferred by the appellant-Insurance Company are devoid of any merit and are, therefore, liable to be dismissed. However, the cross-objections filed by the claimants merit consideration. 7. The facts in this case are not in dispute. The claimant-Satish Kumar has suffered permanent disability to the extent of 30%, whereas claimant-G.S.Rao has suffered permanent disability to the extent of 40%. Both are serving in the Indian Army and have been retained in service even after suffering permanent disablement. Immediately, as rightly contended by the learned counsel for the appellant-Insurance Company, the claimants may not suffer any pecuniary loss on account of their earning, but it has come on record that because of the permanent disablement, both the claimants would be debarred from claiming further promotion(s). This is amply explained by Dr. Col. K.K.Soni, Lt. Col. A.K. Ghosh and Capt. M. Shree Vaidya. 8. From a bare reading of the statement of aforesaid witnesses, it is amply clear that because of the nature of disability suffered by the claimants, the Army has placed them in low medical category. The witnesses are categoric in their statements that because of the claimants having been placed in low medical category, they would not be entitled to get further promotion and this would result in truncating their service career. It is stated that they would now retire after completion of 24 years of service. It is explained that had the claimants been physically fit and not suffered any disability, they were more certain to get promotion and complete their full tenure of 34 years of service. Capt. Vaidya who has appeared as witness of the claimants has proved the certificate issued by him in which he has worked out the actual loss to which the claimants have been subjected to because of the disability suffered in the accident. Capt. Vaidya who has appeared as witness of the claimants has proved the certificate issued by him in which he has worked out the actual loss to which the claimants have been subjected to because of the disability suffered in the accident. A complete calculation in tabulation form is prepared by the witness and placed on record. There is no rebuttal to the aforesaid document by the appellant-Insurance Company. That being the position, the statement of Capt. Shree Vaidya that the claimant –Satish Kumar would suffer a financial loss amounting to Rs.20,45,504/- and G.S.Rao to the tune of Rs.9,84,489/- cannot be doubted or disputed. It is, thus, not understandable as to how the aforesaid evidence of clinching nature has been ignored by the Tribunal. The Tribunal erroneously went on calculating the loss of future earning by taking 30% and 40% disability of the claimants as proportionate loss of their earning capacity. It was absolutely not tenable being not in consonance with law. 9. Learned counsel appearing for the appellant-Insurance Company placed reliance on several judgment rendered by the Hon’ble Supreme Court as well as various High Court of the Country dealing with the manner in which the compensation, particularly, for loss of future earnings, are required to be worked out in motor accident cases. I am deliberately not referring to any of these for the simple reason that in the given facts and circumstances of the case, the only issue which requires to be determined is what is the actual loss that would ultimately occasion to the claimants because of the permanent disability suffered by them in the accident. At the cost of repetition, it may be stated that because of the disability, the claimants have certainly not lost their employment, therefore, there is no immediate loss of any earning, atleast, for another few years. It is also firmly established by way of very cogent and convincing evidence that the claimants because of their disablement have been placed in the low medical category which would not only deprive them of their right to promotion but would also truncate their service career. In presence of the certificate issued by the Army Authorities which is duly proved by Capt. Shree Vaidya, I have no reason to doubt the aforesaid statement, more so, when the same has not been rebutted or disputed by the appellant-Insurance Company. In presence of the certificate issued by the Army Authorities which is duly proved by Capt. Shree Vaidya, I have no reason to doubt the aforesaid statement, more so, when the same has not been rebutted or disputed by the appellant-Insurance Company. Needless to say that all the three witnesses are Army personnel and were subjected to cross-examination by the appellant-Insurance Company but they remained firm and unruffled in what they had stated in examination-in-chief before the Tribunal. Accordingly, the appeals preferred by the appellant-Insurance Company fail and are, therefore, dismissed. The claimants, however, succeed in their cross-objections. 10. Since the amount to be awarded under the head “loss of future earnings” is worked out in lump sum and would be payable to the claimants in advance which otherwise would have been received by the claimants in piecemeal i.e. from month to month, had the claimants continued in service beyond 24 years of service in normal course having not suffered any disablement. The claimants would, therefore, stand to gain by way of interest on the amount to be awarded on account of future loss of earning. Keeping the aforesaid factor in view, I deem it just and proper to reduce the sum to be awarded to claimant-Satish Kumar under the head loss of future earning by Rs.2,00,000/- and Rs.1,00,000/- in the case of claimant-G.S.Rao. 11. Accordingly, the claimants are held to the compensation in the following manner:- Claimant-Satish Kumar Pecuniary Damages (i) Loss on account of permanent disability (Rs.20,49,504–Rs.2,00,000/-) Rs.18,49,504/- (ii) Reduction in pension after retirement and impairment of working capacity Rs.4,00,000/- (iii) Loss of amenities of life Rs.1,00,000/- (iv) Pain and sufferings Rs.1,00,000/- Total Rs.24,49,504/- Claimant-G.S.Rao Pecuniary Damages (i) Loss on account of permanent disability (Rs.9,86,489 – Rs.1,00,000) Rs.8,86,489/- (ii) Reduction in pension after retirement and impairment of working capacity Rs.4,00,000/- (iii) Loss of amenities of life Rs.1,00,000/- (iv) Pain and sufferings Rs.1,00,000/- Total Rs.14,86,489/- Accordingly, the award of the Tribunal stands modified and the claimants are held entitled to the aforesaid amount, along with interest, as has been awarded by the Tribunal. The appellant-Insurance Company to deposit the amount in terms of the modified award, which shall be released in favour of the claimants after proper identification on the terms provided by the Tribunal.