Lakhmi Chand vs Oma Ram and Others

G.R. Moolchandani, J.—By judgment dated 22nd December 2001 passed by the Motor Accident Claims Tribunal, Barmer in Civil Misc. Case No. 37/1999, the Tribunal has awarded compensation in the sum of Rs. 92,600/- with interest in favour of the appellant. The appellant, feeling aggrieved with the assessment of compensation, has come up through the appeal at hand under section 173 of the Motor Vehicles Act seeking enhancement.

Learned counsel for the appellant while submitting arguments has stated that the Tribunal has wrongly passed the award in lower side. The injured is an Army man, who suffered permanent disability and could not be promoted because of disability and impairment suffered despite, the Tribunal has not awarded anything towards disability and loss caused due to non-promotion and further loss of job, so the appeal may be allowed and the quantum of award may be enhanced.

Per contra, learned counsel for respondent-Rajasthan State Road Transport Corporation has submitted that the Tribunal has passed the award correctly. The appellant did not submit any evidence with respect to alleged permanent disability or deprivation of promotional aspect and the Tribunal has rightly awarded loss of income and expenses towards medical treatment. There is no wrong committed by the Tribunal, hence, the appeal is liable to be dismissed.

Brief facts relating to the mishap indicates that the appellant sustained injuries on 08th October 1997 while his Army vehicle collided and dashed by Rajasthan State Road Transport Corporation''s bus No. RJ19-C-4037. Bulk of the facts being no longer disputed are not being enunciated.

The Tribunal while adjudicating issue number two relating to compensation has observed as under:

"bl laca/k esa ,0MCY;w 01 y{ehpan dk c;ku gS fd bl nq?kZVuk ds dkj.k mlds iSj dk vkWijs''ku gqvk rFkk og LFkk;h :i ls fodykax gks x;k gSA mldh inksUufr :d x;h rFkk rhu ekg rd dh NqV~Vh;kWa ysuh iM+hA izkFkhZ }kjk bl laca/k esa esfMdy izek.ki= Hkh is''k fd;s gSaA izkFkhZ ds vk;h gqbZ pksV dh izd`fr dks ns[krs gq, rFkk izkFkhZ dks gq, Hkfo"; ds uqdlku ds rF; dks ns[krs gq, izkFkhZ dks bl gsrq ,d eq''r jkf''k :0 80]000@& fnykuk mfpr izrhr gksrk gSA"

So far as cross-examination is concerned, the evidence has remained uncontroverted. The claimant has narrated in the cross-examination that he has borne expenses towards special diet as well.

The Tribunal has observed in the finding on issue No. 2 that the injured has succeeded in establishing the factum of disability and deprivation from further promotion but without quantifying the loss distinctly a total sum of Rs. 80,000/- has been granted with three months'' loss of income towards availment of leave.

The claimant-appellant has submitted documentary evidence with respect to disability caused and reason of non-promotion caused because of permanent impairment. Exhibit 11, which has been issued by the Lt. Col. Vohra discloses cubitus valgus deformity R>L ... both knees flexion severely restricted and it has further opined deformity + disability which is permanent. This fact is very well corroborated by Exhibit 12, which is a medical case sheet of Military Hospital, Jodhpur as well verifying the treatment undergone by the claimant.

Exhibit 13, which is a significant document issued by Lt. Adjt. Vishnu Prasad for Commandant, 12 Guards c/o 56 APO on 19th November 2000, divulges deprivation of further promotion because of accidental disability and it is certified by this document that Havildar Lakhmi Chand Yadav suffered "Tibia Febula both with close head injury N-804, N-853, N-823, E-812 compound continued fracture". This commuted fracture and injury rendered him being physically unfit, hence, he has been categorized to low medical category CEE (permanent) with effect from 08th October 1999.

This low medical category CEE has made him incapable for promotion to next higher rank forever. It is also mentioned in the certificate that he has been superseded with effect from 01st April 1999 and Havildars junior to him in seniority had been promoted to next higher rank of Naib Subedar with effect from 01st April 1999, he could not be due to his medical category.

This documentary evidence has very well confirmed the permanent injury and resultant blockage of promotion and this has been recited by the claimant in his evidence as well and has remained unrebutted. The claimant-appellant Lakhmi Chand has also stated that due to stoppage of promotional avenues he is subjected to a monthly loss of Rs. 4200/- and if so then this damage alone comes to the tune of Rs. 4200X12=Rs. 50,400/- per annum. As such, this loss itself comes to the tune of around Rs. 2,50,000/- only in a span of five years, so taking guidance from several precedents and considering the evidence adduced, estimated damage might easily have been quantified but these counts have not been properly taken note of by the Tribunal.

In Raj Kumar v. Ajay Kumar, IV (2011) 1 SCC 343, the Court noted (in para 21) that the second schedule appended to MV Act, with reference to Section 163A, inter alia, refers to the first schedule under Workmen''s Compensation Act, 1923 in the context of loss of earning capacity in cases of permanent total or partial disability, and observed (in para 16) thus:

"16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to ''hold an enquiry into the claim'' for determining the ''just compensation''. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ''just compensation''. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen''s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen."

The Tribunal has recited and determined the sum awarded for injuries sustained, prospective loss and awarded a sum of Rs. 80,000/-.

The claimant-appellant has successfully established by oral as well as documentary evidence that he suffered permanent disability of CEE (permanent) in nature wherefore he lost opportunity to be promoted on the ranks of Naib Subedar and Subedar.

Loss of salary on these promotional posts have been said to be of Rs. 4200/- per month. A serious omission, which has been observed in these disability documents is that these do not disclose the percentage of disability suffered by the claimant-appellant. If we take note of the evidence of claimant Lakhmi Chand, then, it explicitly reveals severity of the impairment sustained as he has stated.

"eSa vHkh goynkj dh iksLV ij ua0 13678213 lh0 dEiuh] 12 xkMZ ,e0bZ0lh0,p0 }kjk 56 ,0ih0vks0 gwWaA 08-10-1997 dks QhYM QkbZfjax iksdj.k tk jgs Fks vius tkyhik gSM DokVj ls tSlyesj ds ckn iksdj.k dh rjQ tk jgs FksA eSa Vw VaM xkM+h dk M~kbZoj Fkk esjh xkM+h dk ua0 87 lh0 48869 ds gSA esjs ikl lwcsnkj ohjflag ikl esa cSBs FksA pku.k xkao ls 1 fdyksehVj vkxs cM+s rks lkeus ls jktLFkku jksMost dh cl tks cgqr rst LihM ls vk jgh Fkh ftldh LihM 70&80 dh FkhA gekjh xkM+h dks Vddj ekj nhA esjs nksuksa ikoksa esa QSDpj gks x;k vkSj esjs flj esa pksV vkbZ vkSj esjs iSj LVh;fjax esa Ql x,A ml ,DlhMsaV dh fjiksVZ yS0 iksfyUlu us tSlyesj Fkkus esa tkdj ,Q0vkbZ0vkj0 ntZ djokbZA xkM+h ls fudkyus ds ckn esa csgks''k gks x;k eq>s tSlyesj gkWLihVy esa eq>s ys tk;k x;kA tgkWa esjk esfMdy eqvk;uk fd;k x;kA tSlyesj ls eq>s tks/kiqj feYV~h gkWLihVy esa ys tk;k x;k mlds ckn eq>s fnYyh esa csl gkWLihVy esa ys tk;k x;kA tgkWa ij eSa ekpZ rd ogkWa HkrhZ jgkA fnYyh esa esjs vkWijs''ku fd;s x, rFkk jksM~l yxkbZ xbZA ckj&ckj eq>s esfMdy psdvi ds fy;s esfMdy cksMZ okys cqykrs FksA djhc Ms<+ lky nks cSlk[kh ds lgkjs pyk vkSj vHkh Hkh ydM+h ds lgkjs py jgk gwWaA esjk tho.kk iSj NksVk iM+ x;k rFkk mBus cSBus esa rdyhQ gksrh gSA eSaus esjs esfMdy laca/kh nLrkost Dysx esa is''k fd;s gSaA eSa LFkkbZ :i ls fodykax gks x;k gwWaA esjs nq?kZVuk M~;wVh ds nkSjku gqbZ Fkh blfy;s eq>s ukSdjh ls ugha fudkyk x;k exj esjk izeks''ku jksd fn;k x;kA esjk ukSdjh esa inksUufr vizSy 1999 esa gksuh Fkh exj nq?kZVuk ds dkj.k esa LFkk;h :i ls fodykax gks x;k ftls dkj.k ls esjk izeks''ku jksd fn;k x;kA esjs izeks''ku jksdus ds vkns''k dh udy is''k dj jgk gwWaA djhc ,d efgus dk eq>s :0 4200@& dk uqdlku izeks''ku :dus dh otg ls gks jgk gSA djhc rhu lky ds ckn eq>s lwcsnkj dk izeks''ku fey tkrk rFkk 28 lky dh lfoZl esa eq>s fjVk;MZ dj nsrsA jktLFkku jksM+ost ds M~kbZoj vksekjke dh xyrh ls nq?kZVuk gqbZ FkhA iqfyl us pkyku is''k fd;k gS tks vHkh py jgk gSA eSaus dksVZ ls pkyku dh udy ,Q0vkbZ0vkj0 dh udy] ,Q0vkj0vkj0 ipkZ dh udy] ekSdk ipkZ] ekSdk QnZ] QnZ tCrh jkt0 jksM+ost dh cl] cl dh vkj0lh0] M~kbZoj ykbZlsUl] esjk pksV izfrosnu dh fjiksVZ] esjs foHkkx dh esfMdy fjiksVZ tks bZ0,Dl0ih0 1 ls bZ0,Dl0ih0 10 gSA nq?kZVuk gksus ds ckn tks esjk esfMdy fd;k x;kA esfMdy esjs foHkkx }kjk fd;k x;k ftldh udys lkFk esa is''k dj jgk gwWaA tks bZ0,Dl0ih0 11 ls 15 rd gSA eSa ges''kk ds fy;s viax gks pqdk gwWaA ftl fnu ,DlhMsaV gqvk ml fnu esjk gSMDokVj tkyhik Fkk blfy;s bl U;k;ky; ds le{k viuk Dyse is''k fd;k gSA djhc 3 ekg dh esfMdy yho eq>s bl ,DlhMsaV ds }kjk [kjkc djuh iM+hA rFkk eq>s ekufld ijs''kkuh Hkh gqbZA esjs twfu;j Hkh esjs vkWfQlj cu pqds gSA vkijs''ku ds dkj.k vc Hkh esjs iSj esa nnZ gksrk gSA"

In view of these injuries, predicament of an Army Havildar, who was driver of an Army vehicle, can very well be perceived and understood.

Considering the salary of the claimant-appellant and prospective loss of income/salary owing to non-promotion because of the injuries and disability, the quantification of the damages ought to be in relation to the injury and damage sustained. Though the accidental compensatory system is not a bonanza but the damages suffered ought to be compensated proportionately in a right way to undo the fiscal loss.

Taking guidance from several precedents, damages to which the claimant-appellant appears to be entitled, in absence of quantified percentage of disability, this Court is of the view to modify the compensation awarded as under:

S.No.

Particulars

Compensation Amount

1

Loss of future income, amenities in life, pain & suffering, mental & physical shock and trauma, discomfort & hardship (taking monthly loss of Rs. 4200x12x5)

Rs. 2,52,000/-

2

Food & extra nourishment, expenses towards conveyance

Rs. 28,000/-

3

Loss of benefits because of availing leave for more than 3 months

Rs. 10,000/-

Total

Rs. 2,90,000/-

The respondents are liable to pay the aforesaid modified amount with interest at the rate of 9% per annum from the date of filing of the petition till actual realization. The amount already paid in terms of award/interim award shall be adjusted. The award of the Tribunal stands modified as above.

The respondent-RSRTC is directed to deposit and pay aforesaid enhanced compensation with interest as above within two months from today per Bank draft favouring the claimant or to deposit the same with the Tribunal and in event of deposit with the Tribunal, the appellant-claimant will be free to receive and seek disbursement from the Tribunal. The appeal is allowed as above. There is no order as to costs.