IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.659 of 1998 (O&M) Date of decision: 05.04.2011 Flg. Officer Avinash Chander Sethi ....Appellant versus Surjit Singh and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Gaurav Chopra, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. 1. A fighter pilot, who was grounded to duties on ground on account of injury, is the person in appeal, seeking for enhancement of compensation against the award granting him Rs.45,000/- as compensation. The involvement of the vehicle and the issue of negligence are not in dispute in appeal. The only point for discussion is the adequacy of compensation as awarded by the Tribunal. It is, therefore, necessary to examine the nature of injury and how this injury had impacted his earning skills and career and how the compensation must have been arrived at. 2. The accident had taken place on 4th December, 1995 at Indira Chowk, Ambala. He had been taken to the Medical Hospital, FAO No.659 of 1998 (O&M) - 2 - Ambala directly and treated conservatively and later sent to the hospital at Chandimandir on 6th December, 1995. He was under treatment of the hospital up to 3rd February, 1995 and was said to have reported on duty on 16th March, 1995. He could not resume his duty but admitted in the Medical Hospital, Ambala on the same day and again transferred to the hospital at Chandimandir on 20th March, 1995, for securing opinion of the surgeon. On obtaining his opinion on 25th March, 1995, he was transferred back to the hospital at Ambala on 27th March, 1995 and discharged from the hospital on 13th April, 1995. On local examination for his eligibility for reporting for duty, the Medical Board placed him in lower medical category and he was advised to use crutches. The Medical Board observed that he was fit for routine ground duties not involving severe physical and mental stress and he was excepted from parade, games and to avoid lifting heavy objects. The Medical Board found that the x-ray of the right knee AP and lateral view revealed that posterior- medial dislocation of the right knee with comminuted intra condylar fracture tibia and comminuted fracture fibula shaft which had been reduced satisfactorily and there had been a good alignment. There had been no shortening of the limb and there had been no quadriceps wasting. There had been periodical reviews to medically to assess his fitness to resume his duties as an air crew. He had been assessed in category of T-12. 3. The medical category for officer cadets and airmen that have been set forth by the Air Force is reproduced through Ex.P9 and T-12 category reveals “temporarily incapacitated in any form of ground duty FAO No.659 of 1998 (O&M) - 3 - due to sickness/injury and as regards the employability, the said category would mean temporarily unfit in any form to ground duty.” However, he had been on constant medical observation and had been subjected to assessment by the Medical Board periodically. At the time of trial in the year 1998, the latest report was in relation to an assessment made on 29.04.1997. In that report, it is seen that he was classified in A2G2. A2 category of functional capacity is:- Medical Category Functional Capacity Employability A2 Physically well developed. Capable of enduring physical and mental stress of service flying. May have minor impairment in hearing, visual acuity or functional capacity not interfering with flying. Fit for full flying duties with minor impairment well compensated by experience. May use glasses for correction of vision. May have limitations in flying certain types of aircraft but capable of unrestricted flying in others. And G2 category means: Medical Category Functional Capacity Employability G2 Physical capacity and stamina slightly less than G1. Capable of enduring physical and mental stress at a standard slightly lower than G1. Free from active disease requiring treatment, but may have minor defects which do not restrict employee. Fit for all ground duties, but slightly below G1 standard, in any part of the world. Since G2 makes reference to G1, it becomes necessary to also examine what G1 category means: FAO No.659 of 1998 (O&M) - 4 - Medical Category Functional Capacity Employability G1 Physically well developed. Possesses full functional capacity, good eyesight and hearing. Capable of enduring severe physical and mental stress for prolonged periods. Fit for all ground duties in any part of the world. In the note accompanying this classification, it is stated that the following combinations are permissible with aerial medical category A1, A2 and A3: A1G1, A2G1, A2G2, A3G1, A3G2, A3G3. From the examination of these medical reports, I find that there is no serious impairment and the injury had fairly well healed to restore him of duties, but he had still fallen short of the benchmark of being fit in full flying duties. 4. The appellant himself had been examined on 04.11.1996 and at that time, he had been in A2G2 category (permanent). He also admitted in his evidence that his flying was restored in March, 1996. He stated that however, he had suffered a loss of about more than 300 flying hours and on account to such loss, the persons, who were juniors to him by 2 ½ years had acquired better qualifications than him. The seniority, which he held, would have taken him up to Squadron Leader and thereafter, the promotion was through the selection to the rank of Wing Commander. However, he could not be promoted to the post of Wing Commander on account of lack of professional qualifications. His contention was that the professional qualification fell deficient only on account of the accident. Since he could not get promotion, he would also FAO No.659 of 1998 (O&M) - 5- retire at an early age. In this way he claimed that he would suffer a loss of about Rs.10 lakhs approximately. This would be apart from the loss that would be occasioned by an early retirement. It was stated that the retirement loss themselves would require to be quantified at Rs.10 lakhs. In the cross-examination, he admitted to the fact that he had not brought any proof that he would be retired at an early age. However, he stated that he was getting the same salary and getting the regular increments after the accident also. He, however, suspected that he would be lowered in rank for fall in his flying abilities in future on account of the fact that he had developed osteoarthritic symptoms. 5. The Tribunal while determining the compensation provided for Rs.15,000/- towards pain and suffering, and Rs.30,000/- towards loss of earning capacity. He had been under treatment from 04.12. 1994 to 04.04.1996 at various times and for prolonged hospitalization and the necessity of having to walk on crutches even beyond the period of treatment must, in my view, qualify for an estimation of Rs.50,000/- as compensation for pain and suffering. As regards the loss of earning capacity, it is definitely seen that he had been advised ground duties for more than a year after the accident and consequently, at the time when he was found fit to resume his flying duties, he had already lost about 300 hours. He had spoken about how it had impacted his promotion prospects and how it would result in lowering his income and further cause a reduction in his span of service career. It was most desirable that the appellant had placed all the relevant scales of pay at various stages, the particulars of years of retirement for the various categories and FAO No.659 of 1998 (O&M) - 6 - quantified in appropriate terms the resultant loss. He had, however, given some approximations about the possible loss which I have extracted above. In the absence of proper materials, I do not feel that it will be appropriate to accommodate the entire claim that he has made and I would estimate the loss arising out of his earning capacity at Rs.4.50 lakhs and quantify the total loss at Rs.5 lakhs. The amount in excess over what has been already determined by the Tribunal shall attract interest at 6% from the date of petition till date of payment. 6. The award is modified and the appeal is allowed to the above terms. (K.KANNAN) JUDGE 05 .04.2011 sanjeev