Ashwani Kumar Munshi vs Mehraj-ud-din Mandoo and Others

Sunil Hali, J.—The appellant/petitioner while traveling in his Maruti Car bearing registration No. 4710 JK02H from Jammu to Srinagar

alongwith his mother, brother, sister-in-law and niece met with an accident near Batote. He filed claim petition before the Motor Accidents Claims

Tribunal, Jammu, in which an amount of Rs. 22.00 lacs was claimed by him on various aspects. One of the claims sought by the

appellant/petitioner was loss of future income, which included loss of future promotions. An amount of Rs. 5.00 lacs has been claimed by him on

this behalf.

After hearing the parties, the Tribunal has found on fact that the petitioner had suffered injuries due to rash and negligent driving of the offending

vehicle. Four issues were framed by the Tribunal. The issue No. 2 related to the amount of compensation to which the appellant would be entitled.

The Tribunal after hearing the parties awarded an amount of Rs. 1,35,000/- to the appellant. No compensation has been granted by the Tribunal

on account of loss of future income. It is, in these circumstances that the present appeal has been filed by the appellant.

I have heard Learned Counsel for the parties and perused the record. There is no dispute regarding the issue Nos. 1 & 3 decided by the

Tribunal. The only question required to be determined by this Court is whether the Tribunal has rightly awarded the compensation to the appellant

or not. The only issue pressed by the appellant in this appeal is that future loss of income has not been considered by the Tribunal while awarding

the compensation. Needless to say that the amount of compensation in a case of tortuous liability arising out of a road accident under the Motor

Vehicles Act has to be decided in the light of two recognized heads, i.e. (i) loss of dependency benefits, and (ii) loss to the estate and loss of

expectation of life, in case of fatal injury.

The measure of damage is the pecuniary loss suffered and is likely to be suffered by claimant or its dependant. Thus, except where there is

express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the fatal accidents Acts must

take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased or injuries. It is the net loss on

balance which constitutes the measures of damages. The actual pecuniary loss of each individual entitled to sue can only be ascertained by

balancing on the one hand loss to him of the future pecuniary benefit, and on the other, any pecuniary advantage which from what ever sources

comes to him by reason to death or injury caused. The loss is also to be counted in terms of future earnings which would have accrued to future

earnings also.

It is not in dispute that the appellant at the time of accident was working as Major in the Army. He suffered the following injuries in the accident:

Compound fracture tibia fibula right, contusion Chest (bilateral haemothorax, blund injury abdomen, fracture 6th rib right.

As per medical record of the Army Headquarter, the disability of the appellant was assessed as A-3, P2 by the Medical Board on 24.3.2003.

His disability was assessed at 50% permanent according to the statement of Dr. Anil Joshi.

The appellant was considered for promotion by the Selection Board to the substantive rank of Lieutenant Colonel. Vide order dated 20.9.2002,

the case of the appellant for promotion was withdrawn due to the reason that he has fallen in the medical category of A-3 P2.

It is also not in dispute that petitioner was 38 years of age at the time of accident and was likely to go higher in rank. It is claimed by the

appellant that he has to retire as Brigadier in the Army. The appellant's medical category was down graded to SI, HI, A3, PI and El. All the

certificates were placed bv the appellant before the Tribunal. While dealing with the question of loss of future income, the Tribunal has held that

since appellant continues serving in the Army and no promotion has been denied to him, as such, he is not entitled to any compensation on that

count. Reliance has been placed on the judgment passed by the High Court of Gawahti reported in National Insurance Co. Ltd. Vs. Dr. (Mrs.)

Dipika Choudhury and Others, . The Tribunal has fallen into error in dealing with this question.

The injuries suffered by the appellant are not in dispute. The manner in which the same have been suffered is also not in dispute.' Analyzing as to

whether any future loss of income in the shape of any promotion has been caused to the appellant is to be determined on basis of following facts:

a) That the appellant was working in organized sector where it an be safely assumed that he would have earned future promotions also.

b) Down grading of the medical category, and

c) 50% disability determined by the Doctor.

The doctor has proved all the injuries and has admitted that there was disability of 50%. The appellant/petitioner has stated in the statement

that he must have missed the promotion board because of the permanent disability. He has also stated that on account of injuries suffered by the

appellant in the accident his promotional and operational chances have been affected.

While awarding the compensation, one of the components is loss of future income, which is to be determined by the Court. The parameter to

determine the same is that appellant must be working with some organized sector, where his future earnings can easily be assessed. There is no

difficulty in the present case for the Tribunal to arrive at such conclusion. The findings of the Tribunal that appellant continued to serve in the Army

and to that extent there was no loss of future income to him till date of passing of the award, is not in consonance with law.

It is not in dispute that the appellant suffered two categories of injuries i.e. A3 and P2. A-3 relates to the compound fractures which resulted in

impairment of movement and P2 related to obesity.

For seeking promotion in the Army, one has to be medically fit. Admittedly the appellant was not medically fit on account of injuries.

Therefore, I hold that the Tribunal has fallen into error while assessing the compensation to the appellant in this regard. What is the compensation

payable to the appellant on this account is a question which is to be determined at this stage. The appellant has claimed Rs. 5.00 lacs on account of

loss of future promotions.

It is due to the injuries which the appellant suffered, has considerably reduced his chances of promotions. It is fact that while making

assessment to the promotion in the higher rank, the merit of the appellant is also required to be seen. While assessing the compensation, the

probabilities of the appellant for being promoted to the next higher rank were required to be considered.

Mr. Vishnu Gupta, Learned Counsel for the respondents has submitted two judgments Ved Vati and Others Vs. Chatter Singh and Others,

and 2006 (2) Supreme 374 entitled Bijoy Kumar Dugar v. Bidyadhar Dutta and Ors. in support of his contentions. In the judgment

2006(2)/Supreme 374, the court has held that claimants have to prove that the deceased was in trade where he would earn more from time to time

or that he had special merits or qualifications or opportunities which would have led to an improvement in his income. This judgment in my opinion

supports the contentions of the appellant. In the present case, there is sufficient material that the appellant was working in the Army and was likely

to be promoted to the higher rank, there would have been no difficulty in awarding the future loss of income by the Tribunal to the

petitioner/appellant

It is settled proposition of law that with a view to award a just and reasonable amount of compensation in a case of fatal injury, it is incumbent

upon the Tribunal to consider as to what was the income at the relevant time of the accident and what would have been or probable prospective

earnings in the later year of the life. The aforementioned principles clearly envisage that the Tribunal while awarding compensation has also to take

into account loss of earnings.

It is not in dispute that appellant at the time of accident was working as Major. The future income is required to be determined by considering

as to what was the income of the claimant at the time of incident. In absence of any other evidence, the same is required to be doubled and then

reduced by half so as to reflect the prospective average income for the purpose of determining the datum figure. This principal is also favoured by

the Apex Court in various judgments. However, in case, where it can be revealed from the record and evidence that the future income is

detectable then this method is not to be applied. It is to say that in case where income of the claimant is known and the amount that he lost on

account of injuries which he has suffered can be determined. After working out the final income on the basis of loss so suffered, a suitable multiplier

is to be applied.

It transpires that appellant was initially promoted as Lieutenant Colonel in the year 2001, but without confirming him substantive rank of

Lieutenant Colonel, his promotion was withdrawn on 20.09.2002 on account of lowering down of his medical category. It is, however, stated that

he become Lieutenant Colonel in the year, 2003. The appellant has prepared a chart wherein he has shown that he will be due for being

considered for promotion as Colonel with effect from 2010. On account his lower medical category, he is not likely to be called for appointment to

the post of Colonel because of permanent disability certificate issued in his favour, which totally disentitle him for future promotions to the post of

Colonel and then Brigadier. In the said chart the appellant has shown that on account of not consideration of his case for promotion to the post of

Lt. Colonel from 2001 to 2003 and diminishing chance of promotion to the rank of Colonel in the year 2010, he will suffer monthly loss of Rs.

2243/-. This loss has been shown as pay difference between the rank of Lt. Colonel and Colonel. The details have been given by the appellant in

the memo of appeal. The same is reproduced as under:

S. No. Pay and Lt. Col. Col. (2005) Difference Loss till Col.

allowances Present Pay Per month. 2005 Per (TS) Rank

(2005) per Month for 6 years

month (up to 2010.

Basic Pay 14850 15100 250 18000

Rank pay 1200 2000 800 57600

DA @ 26% of Basic 4093 4446 353 25416

& Rank Pay

D. Pay ©50% of 8025 8550 525 37800

Basic Rank pay

Kit Maintenance 200 200 0 0

allowance

Tech. Pay 2500 2500 0 0

Special 1050 1050 0 0

compensatory

allowance

Island Allowance 4815 5130 315 22680

@ 20% of Basic

Rank & Dearness 0

pay.(D. Pay)

Total (in Rs.) 36733 38975 2243 161496

Increments in pay @ Rs. 450/- per year have not been included with respect to above.

Re-employment for 4 years till 58 years.

Assuming a consolidated pay of Rs. 60,000/- pm is last pay drawn at the time of reemployment in Jan 2015,

The pay on reemployment Rs. 60,000/-

Total Financial Loss for 4 years: 28,80,000/-

Other loss in pension 50,00,000/- (approx)

+

Over all loss 35,41,496/-

Looking into the probabilities and uncertainty of the life, the future loss of income is assessed to Rs. 2000/- per month. The appellant being 38

years old at the time of accident, it will be appropriate to apply multiplier of 10 in the present case. Accordingly, the appellant is entitled to annual

loss of Rs. (2000 x 12) 24,000/- which comes to Rs. 2,40,000/- by applying multiplier of 10. This amount is payable to the appellant by the

respondents.

I, therefore, allow this appeal and set aside the order of trial court so far as it relates to the refusal of grant of future loss of income. The

appellant shall be entitled to Rs. 2,40,000/- as compensation on account of future loss of income in addition to the compensation already awarded

by the Tribunal alongwith interest @ 9% per annum from the date of award till the date of payment. The respondents are directed to deposit the

remaining amount within the Tribunal with a period of three months from today.

In view of the above discussion, the Cross Appeal No. (c) 8/2005 filed by the Insurance Company is dismissed.