FAO No.5383 of 2003 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5383 of 2003 (O&M) Date of Decision. 09.03.2011 The New India Assurance Company Ltd., SCO 36-37, Sector 17-A, Chandigarh through its Asstt. Manager ......Appellant Versus Col Sanjeev Kumar s/o late Sh. Om Parkash and others ....Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. Bhag Singh, Advocate for respondent No.1. None for respondent Nos.2 to 5. Mr. Vivek Singal, Advocate for Mr. R.N. Singal, Advocate for respondent NO.6. 2. FAO No.576 of 2004 Col Sanjeev Kumar son of Shri Om Parkash ......Appellant Versus Jasmer Singh son of late Shri Mohinder Singh and others ....Respondents Present: Mr. Bhag Singh, Advocate for the appellant. None for respondent Nos.1, 1-A and 3. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for respondent No.2. Mr. Vivek Singal, Advocate for Mr. R.N. Singal, Advocate for respondent No.4. FAO No.5383 of 2003 (O&M) -2- CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J. 1. Both the appeals in FAO No.5383 of 2003 and 576 of 2004 are connected arising out of same accident. The former is at the instance of the insurance company and the latter is at the instance of the claimant, both of them being aggrieved about the quantum of compention determined. Most predictably, the insurance company is aggrieved about the compensation as being excessive while the claimant would contend that compensation is not adequate and would seek for an enhancement. 2. The accident took place on 29.1.21998 in a collision between a taxi car and a truck. The claimant was travelling in the car along with other members of his family. The Tribunal had found that both the drivers of the respective vehicles had been negligent and apportioned the liability between the driver of the car and the truck between 75:25. The insurer for the truck is the appellant in FAO No.5383 of 2003. The insurance company had the benfit of defence under Section 170 of the Motor Vehicles Act, the driver and owner of the vehicle had having been set ex parte. The compensation will have to be assessed in the context of the earning capacity of the claimant and how the various heads of claim for compensation have been addressed by the Tribunal. The claimant had an admirable career of graph joining the Indian Army as 2nd Lieutenant on 16.12.1978, promoted as Lieutenant on 23.7.1981, as FAO No.5383 of 2003 (O&M) -3- Captain on 1.12.1982, as Major on 16.1.1988, as Lieutenant Colonel on 15.8.1985 and was serving as a Colonel since 4.12.1998 when the accident had taken place. He was also an Assistant Military Attache to Nepal. He was retired from service on 30.09.2009. In his usual course, it was brought in evidence that he could have served upto the age of 54. If he had continued for the same post, it was brought out in evidence that as a Colonel he was entitled to an increment of Rs.450/- plus two slabs of DA every year and if he had been continued in service, he would have been promoted further. It was also in evdience that he was entitled to large amount of perquisites such as free residence, free ration, LTC for his family, medical facilities, free transportation and reimbursement of tuition fee for his children. The income tax paid by him for the year between 1.4.1998 to 31.3.1999 was Rs.36,758/-. He had been rendered blind in the accident on account of penetrating injury in his right eye and had also suffered faciomaxillary injuries. He had been operated on 30.12.1998 but the right eye could not be salvaged and he was advised evisceration. He had also some brain injuries for which surgery had been done. The doctor who had certified him (Ex.P16) stated that he was 100% visually handicapped. He had been given treatment at Appollo Neuro Hospital at Chennai and also at Shankar Nageraya Hospital, Chennai. The contention was that he had been rendered incapacitated physically and had become a nervous wreck. He was prematurely retired and he was being given disability pension @ Rs.12,155/- per month. 3. While awarding compensation, the Tribunal had provided for the following heads of compensation:- FAO No.5383 of 2003 (O&M) -4- (i) Loss of income Rs.12,92, 676/- (ii) Pain and suffering Rs.3,50,000/- (iii) Loss of house rent income Rs.3,30,000/- out of Govt. Premises (iv) Tuition fee for daughter for Rs.48,000/- five years (v) Loss of ration Rs.92,400/- Each one of the heads of claim had a particular justification in the award of the Tribunal. The loss of income at Rs.12,92,676/- had been ascertained by taking the loss of income at Rs.9793/- being the difference in the income, which he was earning as a Colonel and the amount which he was receiving as disability pension. The Tribunal had adopted a multiplier of 11 having regard to the age of the claimant at 41 years. The assessment to pain and suffering for Rs.3,50,000/- was really an assessment also for the fact that he had to carry through the rest of his life with his disability of 100% loss of his sight and a complete dependence that he had to take from others for carrying out even his normal duties. The provision for loss of rent had been made to the extent of Rs.3,30,000/- on the ground that he had been provided for rent free accommodation when he was serving as a Colonel and by his premature retirement and return to his home town at Ambala, he had to occupy his own premise and suffer loss of rental to the tune of Rs.2500/- per month. The assessment of Rs.3,30,000/- was, therfore, through a multiplication of 12 for number of months and adopting a multiplier of 11 for securing a return equivalent to the amount which he had lost by way of rental income. It was in evidence that his daughter was having a FAO No.5383 of 2003 (O&M) -5- good education in a popular Convent School in Calcutta where she was also entitled to tuition allowance and on the relocation of school, the child was denied the tuition allowance and he could not himself support his daughter in education and he had to incur additional tuition for which the Tribunal had provided for five years an amount of Rs.48,000/-. 4. It can be noticed that the Tribunal has been very sensitive to the turn of events of an able Army Officer, who had been emasculated and crippled by his injuries. Sprightliness and smartness invariably go for the making of an Army Officer and there could not have been a greater dent to a person's esteem than a complete loss of vision and serious other physical disabilities that would ever make him dependent for rest of his life on others. The assessment of Rs.3,50,00/- towards pain and suffering and the loss of amentities for his life for loss of his vision is appropriate and I would retain the same. Learned counsel appearing for the insurance company would contend that the assessment of loss of income is completely faulty. According to the learned counsel, the Tribunal was in error in the manner of assessment by taking the pension earned by him at Rs.12,155/- when actually the pension that he was getting was Rs.15,153/- and he had got commuted a part of his pension to the tune of Rs.2998/-. This amount ought not to have been deducted. The last pay drawn by the claimant was Rs.24,244/- plus DA to the tune of Rs.702/-. The total emoluments were Rs.24,946/- and in this way after deducting Rs.15,153/-, the loss of income came to Rs.9,793/-. In support of the contention that any amount which forms part of the service emoluments shall not be FAO No.5383 of 2003 (O&M) -6- deducted, learned counsel appearing for the claimant cited the decision in Smt. Anita Taneja and others Vs. Santosh Pandey and others 2007 (2) RCR (Civil) 32 to the effect that service benefits of the deceased are not meant for the benefit of tort feasor and cannot, therefore, be deducted from the compensation computed as per dependency of the claimants. He would also refer to the decision of the Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Patricia Jean Mahajan 2002(6) SCC 281 that lend support to the veiw that the pension, provident fund, LIC, Social Security amount etc. which are statutory benefits and which would have been available even otherwise to the claimant and not arising out of the same accident cannot be deducted. I have kept the principle in view while not making any provision for deduction of pension but deducting only the disability pension would be appropriate, since that alone could be seen as arising out of the disability arising from the accident. 5. Before the Tribunal two decisions were cited, both of which were rejected by the Tribunal. They were Perry Vs. Cleaver 1969 ACJ 363 and M.D. Chacko Vs. N. Sreedharan and others 1990 ACJ 436. While I would hold that the pension itself cannot be deducted, for it is a manner of deferred payment for service already rendered, the same could not be said of disability pension. The disability pension is an acknowledgement of an existence of disability and an attempt to quantify the amount that would become payable for such disability. It is independently not a pension that might become payable to an Army Personnel if he had not had the disability. While a mere deduction of pension shall not be permissible, any disability pension that was being FAO No.5383 of 2003 (O&M) -7- paid was certainly liable for deduction. In the manner of arriving at the figure of Rs.9793/- as the resultant loss by a premature retirement, the Tribunal had taken the total income, which he was earning and deducted the same by the pension which he was received that reflected the amount payable for his past service and the disability pension which was receiving for the disability, which was suffered by him. It had also rejected the contention made on behalf of the insurer that the income tax paid to the extent of Rs.40,000/- was liable for deduction. Income tax is bound to be deducted for computation of the loss in terms of the judgment of the Hon'ble Supreme Court in Sarla Verma Vs. DTC 2009 (6) SCC 121. I will reassess the monthly loss, making due provision for possible increase in income by the fact that he had consistent promotions and an excellent track record as an officer of the Army. His income shown was Rs.32,429/-. I will deduct 10% of the same as going towards tax per month and take the amount minus tax as Rs.29,187/-. Out of this amount, instead of deducting Rs.15,153/- as done by the Tribunal, I will deduct only such portion of the amount that was paid as disability pension. The disability pension paid as per the evidence of RW-1 was Rs.4522/-. The monthly loss shall, therefore, be computed as Rs.24,665/-. I will adopt a multiplier of 14 and find the loss of income at Rs.41,43,720/-. The loss of house rent income, tuition, government premises, it will be inappropriate to make an addition amongst the heads of claim, for in such a process we are actually duplicating the issue of loss of income. A rent free accommotion, some allowance for tuition and loss of ration, all partake the character of income benefit. When I am making a provision for 30% increase of the salary, I assume FAO No.5383 of 2003 (O&M) -8- that every component of the salary and benefits that are attached to his emoluments are also increased and duly factored. The other heads of claim namely the loss of house rent allowance, tuition fee for daughter, goverment premises or loss of ration are all relatively minor heads and if they are not in some cases provided, it is only because of lack of evidence. Here in this case, there is specific evidence to the effect that over and above the emoluments that he was earning, he had rent free accommoation which has a financial value and so also, the value of ration which a person enjoys. If both of them will be resultant loss by loss of job, there is no mistake in making an additional provision for the same. A tuition fee for daughter for five years may not be appropriate, for it cannot be taken to be the promixate result out of the accident. I will only deny Rs.48,000/- which has been provided. The overall compensation shall therefore be:- (i) Loss of income Rs.41,43, 720/- (ii) Pain and suffering Rs.3,50,000/- (iii) Loss of house rent income Rs.3,30,000/- out of Govt. Premises (iv) Loss of ration Rs.92,400/- Total Rs.49,16,120/- 6. The amount in excess over what has been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment. The apportionment of liability shall be in the same manner as determined by the Tribunal. 7. The accident had taken place on 30.12.1998 i.e. 13 years prior to the disposal of appeal. I have provided for a multiplier of 14, which FAO No.5383 of 2003 (O&M) -9- is almost equal to the number of years of accident, I will, therefore, make no provision for directing any deposit and the entire award shall be paid to the claimant. The appeal for enhancement is allowed and the appeal by the insurance company challenging the quantum is dismissed. (K. KANNAN) JUDGE March 09, 2011 Pankaj*