NIC @APPELLANT@Hash Satish Kumar and others

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 claimantsâ€) were riding on their motorcycle when they were hit by Tata Tipper bearing

registration No.JK02V-9086 (hereinafter referred to as “the offending vehicleâ€) 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

Tribunalâ€​). The claimant Satish Kumar claimed a sum of Rs. 26,99,504/- wheras claimant G.S.Rao claimed a sum of Rs.16,36,489/-.

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/- Â

The awarded amount was directed to be paid along with simple interest @ 7.5%.

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.

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 earningsâ€, 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.

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.

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.

The facts in this case are not in dispute. The claimant-Satish Kumar has suffered permanent disability to the extent of 30%, whereas

claimantG.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.Â

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. 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 â€"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.

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. 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 crossobjections.

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.

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.20,49,504â€"Rs.2,00,000/-) =Rs.18,49,504/-  Â

(ii) Reduction in pension after retirement    Rs.4,00,000/-  and impairment of working capacityÂ

(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 â€" Rs.1,00,000) = Rs.8,86,489/-

(ii) Reduction in pension after retirement       Rs.4,00,000/-  and impairment of working capacityÂ

(iii) Loss of amenities of life        Rs.1,00,000/-

(iv) Pain and sufferings        Rs.1,00,000/- Â

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.Â