Punjab-Haryana High CourtThe New India Assurance Company Ltd vs Col Sanjeev Kumar S/O Late Sh. Om Parkash ... on 9 March, 2011Author:K. KannanBench:K. KannanFAO 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
                                              ....RespondentsPresent: 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. KANNAN1.  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 underSection 170of 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, asFAO 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 aFAO 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 beFAO No.5383 of 2003 (O&M)                       -6-deducted, learned counsel appearing for the claimant cited the decision

inSmt. Anita Taneja and others Vs. Santosh Pandey and others2007

(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 inUnited India Insurance Co. Ltd. Vs. Patricia Jean Mahajan2002(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 1969ACJ

363 and M.D. Chacko Vs. N. Sreedharan and others1990 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 beingFAO 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 assumeFAO 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, whichFAO 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*