Oriental Insurance Co. Ltd. vs Tilak Raj and Others

J.P. Singh, J.—Tilak Raj, aged 25 years, a Constable in the Police Department of the State Government was hit by Mini Bus 407 bearing

registration No. JK02-5248 when he was discharging his duty at main Bazar, Arnas-Reasi. He sustained grievous injuries as a result of the motor

accident. Allowing his Claim, the Motor Accident Claims Tribunal, Reasi awarded him Rs. 5,47,000 as compensation for the disability caused to

him. The compensation was allowed under the following heads:

(i) Permanent disability = 1000 x 12 x 21 = Rs. 2,52,000 (taking into consideration the prospects, stakes and uncertainties of carrier, for 20%

disablement, at least for 21 years);

(ii) Pain and suffering = Rs. 50,000;

(iii) Presumptive expenditures = Rs. 1,00,000;

(iv) Loss of enjoyment = Rs. 50,000;

(v) Special diet = Rs. 15,000;

(vi) Loss of future estate = Rs. 20,000;

(vii) Expenditure on attendant = Rs. 10,000;

(viii) Loss of income during treatment = Rs. 50,000 period (petitioner remaining on medical leave and receiving less amount of pay and

allowances).

Total = Rs. 5,47,000.

The Oriental Insurance Company Limited, the insurer of the Motor Vehicle has come up in Appeal questioning Award dated 30th April, 2010 of

the Motor Accident Claims Tribunal. Learned Counsel for the appellant questioned the Award only insofar as the compensation was allowed

under the heads, Permanent Disability, Presumptive Expenditure, Loss of Future Estate and Loss of Income during treatment period. According to

the appellant's learned Counsel the certified 20% disability of the respondent is only regarding his lower limb and the same could not be treated as

disability for the whole body to allow him compensation for loss of earning capacity on the basis thereof. He submitted that there being no evidence

of shortening of claimant's leg, besides disability to earn future promotion, the amount awarded by the Tribunal on account of the disability stated to

have been suffered by him was unjustified because despite accident, the respondent has been continuing in the Police Department.

Considered the submissions of learned Counsel for the parties and perused the evidence and documents available on the records of the

Tribunal. The respondent-claimant examined himself besides Dr. Rajesh Gupta, who had treated him, to prove his claim for compensation. The

appellant, however, did not lead any evidence in the case.

Before considering the submissions of learned Counsel for the parties on the issue as to whether or not compensation allowed by the Tribunal to

the respondent was justified, reference becomes necessary to the Certificate issued by the Medical Board which was proved before the Tribunal

by Dr. Rajesh Gupta, who had examined the respondent during his admission in the Hospital, to know as to what was the nature of the injuries

received by the claimant and the disability suffered thereby. The Certificate issued by the Medical Board reads thus:

Certified that Tilak Raj S/o Sh. Hukam Chand age 30 years R/o Arnas, Reasi, Distt. Udhampur was admitted in Ortho-IA vide MLC No. 4254

and MRD No. 400263 dated 23rd October, 2005 as a case of fracture medial malleolus right with fracture shaft of fibula distal third right. Open

reduction and internal fixation of fracture fibula with 1/3rd tubular plate and bone grafting and for fracture medial malleolus, tension bend wiring

was done and syndesmosis of the joint was fixed with cortical screw. The patient was examined and at present, he has pain and stiffness of right

ankle. His permanent physical disability amounts to 20% (twenty percent only) of right lower limb.

MOI: 1. Black mole right side of neck. 2. Black mole (Lt.) side of face.

C/S by HOU Sd/-

Dr. Paramjit Singh

Assoc. Prof. Ortho

24.2.2007

Sd/-

Dr. Rajesh Gupta

Registrar Ortho-IA

24.2.2007

The claimant was serving in a Belt Force where physical fitness is of paramount importance for one's retention and consideration for promotion.

Although the claimant has not yet become entitled to promotion yet as and when he becomes so entitled, his physical frame would certainly affect

his merit during consideration for promotion, for, he may not be allowed same consideration which the employer may allow to others, who were

otherwise physically fit and did not suffer from any disability that may impede the discharge of their normal duties. He may not, therefore, get as

much promotional opportunities as he would have otherwise got, had he been in the same physical frame of fitness as he was before he met with

accident and became disabled. True it is that he has been retained in service but his retention despite disablement cannot be viewed ignoring the

disability suffered by him in his right lower limb which has resulted in stiffness in right leg and ankle thereby disabling him from effective running and

lifting weight. Had he been in a fit physical condition, he would have earned, even out of turn promotions, which are allowed to persons in Belt

Force on the basis of their daring acts in facing difficult situations while maintaining law and order, fighting militancy and discharging several such

like duties. The nature of injuries suffered by the claimant now disables him from discharging even his normal duties and he is required to be

adjusted at places where he may not have to run or lift weight. He cannot now be assigned those duties on the basis whereof he would have

earned excellence and additional promotional chances. True it is that the disability suffered by the claimant may not be 20% of the whole body but

the disability suffered in the lower limb certainly disables him to claim all those promotional avenues which he would have otherwise earned while in

service had he maintained good physical fitness. Not only that, even after his superannuation, he would be disabled to work as much as he would

have otherwise done had he not suffered disability. Injuries suffered during youth are prone to cause more trouble in old age and in this view of the

matter too, it cannot be said that the disability suffered by the claimant has not affected his promotional avenues and earning capacity. The New

India Assurance Co. Ltd. Vs. Amitava Das and Another, , referred to by the appellant's learned Counsel is not attracted to the facts of the present

case and the appellant cannot derive any benefit therefrom.

In view of the above discussion, the appellant's learned Counsel's argument that the respondent was not required to be compensated for loss of

promotional benefits is, therefore, found without merit. Therefore, taking over all view of the disablement suffered and the foreign matter introduced

in the respondent's body after the accident so as to enable him to walk, the disablement caused to him in lifting weight and running, etc., he needs

to be compensated for the injuries caused and the disability suffered, which have disabled him to earn promotional avenues during service which he

would have otherwise got, had he not suffered injuries and income after superannuation. The Claim allowed by the Tribunal under Permanent

Disability, however, appears to be on the higher side. Keeping in view the facts and circumstances of the case, Rs. 2 lac is considered just

compensation to the claimant for curtailment of promotional avenues during service and loss of earning capacity after superannuation. However,

there being no evidence to support the Claim allowed to him on account of Presumptive Expenditure, Loss of Future Estate and Loss of Income

during treatment, the amount awarded under these Heads by the Tribunal cannot be justified. Compensation allowed for Loss of Future Estate too

is unwarranted, in that, such loss would be caused in the event of death of a person. Claim of Rs. 1 lac allowed under Presumptive Expenditure,

Rs. 20,000 for Loss of Future Estate and Rs. 50,000 for Loss of Income, cannot, therefore, be sustained. For all what has been said above, the

Tribunal's Award, therefore, needs to be modified holding the claimant entitled to Rs. 3,25,000 as against Rs. 5,47,000 allowed by the Tribunal.

The claimant shall be entitled to Rs. 3,25,000 as compensation under the following Heads:

This Appeal, therefore, succeeds and is, accordingly, allowed in part, modifying Award dated 30th April, 2010 of the Motor Accident Claims

Tribunal, Reasi as award for an amount of Rs. 3,25,000. Respondent-claimant is held entitled to interest @ 7.5% on all items except on Rs. 2 lac

allowed under the head Permanent Disability.

The amount payable to the claimant in terms of the modified Award be released in his favour and rest of the amount be released in favour of the

appellant-Insurance Company.