Delhi High Court
Ajay Pratap Singh Chauhan vs Shri Vijay Kumar And Sudarshan Kumar & ... on 20 November, 2014
Author: Jayant Nath
Bench: Jayant Nath
$~R-36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 32/2007
Date of decision:20.11.2014
AJAY PRATAP SINGH CHAUHAN ..... Appellants
Through Mr.Navneet Goyal, Advocate
versus
SHRI VIJAY KUMAR AND SUDARSHAN KUMAR & ORS.
..... Respondents
Through Mr.D.K.Sharma, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present appeal the appellant seeks enhancement of compensation as given in award dated 6.10.2006.
2. The brief facts which led to filing of the claim petition are that the appellant was working for Special Protection Group (SPG). He was on VIP escort duty with former Prime Minister Shri Chander Shekhar during general elections of 1995. He was going to District Jajpur (Orissa) in a car as a member of the VIP escort. The car was hit by a truck said to be driven rashly and negligently due to which the appellant suffered serious injuries on his head and other parts of the body.
3. The issue revolves around the compensation awarded. Based on the evidence on record the Tribunal awarded a total compensation of Rs.6,88,032/-. The break-up of compensation awarded is as follows:-
Reimbursement of medicine Rs.10,000/-
MAC.APP.32/2007 Page 1 of 8
Loss of wages on account of Rs.1,80,792/-
disability
Loss of chance of promotion Rs.1,00,000/-
Loss of wages Rs.67,240/-
Loss of special allowance Rs.1,50,000/-
Special Diet Rs.40,000/-
Conveyance Rs.40,000/-
Loss of pain and suffering Rs.1,00,000/-
Total Rs.6,88,032
4. The Tribunal noted that the appellant suffered gravely in the accident. He was admitted to Cuttack Medical College but his condition was deteriorating and he was airlifted in a special flight to Delhi and admitted to Batra hospital where he was kept in ICU from 24.2.1995 to 24.3.1995. As per the Disability certificate issued by All India Institute of Medical Sciences dated 13.10.2003 he has 50% disability in relation to right upper limb.
5. Learned counsel appearing for the appellant submits that compensation awarded is inadequate and should be enhanced. He submits that as part of the SPG the appellant was paid a special allowance but due to the injuries suffered in the accident he was repatriated and lost special allowance of Rs.3,05,177/-. He submits that yet the Tribunal has only awarded Rs.1,50,000/- erroneously. He also submits that he had 50% disability and yet the Tribunal has only awarded Rs.1,80,000/- for loss on account of disability taking the notional disability at only 12% ignoring the loss of promotion chances suffered by the appellant.
6. A perusal of the affidavit by way of evidence of the appellant who appeared as PW-10 shows that he suffered the following injuries:-
"(i) Brain Contusion and multiple haemorrhage.
(ii) Mendible fracture.MAC.APP.32/2007 Page 2 of 8
(iii)Right jaws along with face was cut into two pieces.
(iv)Throat was cut, jaw was also cut from the Collar bone.
Broken pieces of glass of the smashed vehicle weighing about 250 grams entered the throat and damaged the right hand nerves system.
(v)Right arm was completely paralysed due to complete denervation.
(vi)Injuries on the right leg, knee, ankle joint and right leg muscles.
(vii)Teeth of the lower jaw were broken with mendible fracture.
(viii)Cut injury on the tongue.
(ix)Petitioner was bleeding heavily and petitioner lost consciousness after the accident."
7. Reference may also be had to the evidence of PW-1 Dr.S.S.Arora,.Consultant Physician, Batra Hospital, New Delhi regarding treatment of the petitioner who stated as follows:-
"..Petitioner A.P.S.Chauhan was admitted in Batra Hospital on 24.2.1995 and was discharged on 24.3.1995. He came with multiple injuries to his head, neck and right shoulder as also with C5-C6 cervical root injury in his right jaw. The petitioner had been flown from Cuttack Medical College, Delhi in an emergency condition and was brought to the Intensive Care Unit, Batra Hospital. I have been giving treatment to the patient along with my other Doctor colleagues. The whole jaw was fractured and his right shoulder was broken and injured and he had contusions in the brain i.e. he was bleeding from the brain. He was on the ventilator i.e. artificial ventilation support system. The patient remained delirious and disoriented for about a week following admission. His lung had been collapsed and treatment was given for that also. He was kept on artificial feed through the tube through a nose. He had grievous injuries to the face and it was life threatening injuries."MAC.APP.32/2007 Page 3 of 8
8. The Disability Certificate dated 13.10.2003 states it to be a case of Right Brachial Plexopathy and the physically handicapped percentage is mentioned as 50% of the right upper limb.
9. I will first deal with the issue of loss of promotion. The appellant in his affidavit by way of evidence as PW-10 states that his original cadre is from BSF and he was on deputation to SPG. He further states that for getting promotion to the next higher rank an officer has to be in shape I medical category. He states that he would have been entitled to promotion as an Assistant Commandant w.e.f. 2003 but he is not being considered for promotion at all because of his low medical category. He further states that he has not been able to complete his mandatory courses i.e. PC (TAC) courses and similarly CC(SOS) course which is the basic requirement for promotion to the rank of Assistant Commandant. He further states that his year of retirement is 2026. He further states that after serving for six years on the post of Assistant Commandant he would have been promoted to the post of Deputy Commandant and after service of four years he would have been promoted to the post of 2/IC and thereafter after about four years a promotion comes to the post of Commandant and then thereafter Addl.DIG. He avers that had he not become handicapped he would have retired as an Additional DIG or at least a Commandant. He has further said that on account of being in low medical category he is unable to perform active duty. He has not been paid special duty allowance of 50% of basic pay plus D.A. for foreign tour TA /DA which a SPG personnal often gets in his deputation tenure. There is no cross- examination of the appellant on the said averment made regarding loss of future promotion chances.
MAC.APP.32/2007 Page 4 of 810. This Court in the case titled Vikas Kumar vs. Sunit Kumar & Anr. MAC.APP.599/2013 dated 27.8.2014 in the case of a Constable of Delhi Police had held that in uniformed forces, in case of a permanent physical handicap, chances of promotion are badly effected if not completely wiped out. In that case this Court had awarded a compensation of Rs.6,54,000/- for loss of income due to loss of promotion. Similar judgment has been passed in the case of G.S.Bhandari vs. Nirmal Singh & Ors. in Mac.App.220/2007 dated 18.9.2014 which related to a claimant who at the time of the accident was a Major in the army. This Court relied upon judgment of various High Courts including Major Vivek Gupta vs.Smt.Parvati Devi and Ors., MANU/HP/2072/2011. Maj.Shailendra Kumar Pathak vs. United India Insurance Co. Ltd.and Ors., 1996 ACJ 602; MANU/GH/0082/1995 , Ashwani Kumar Munshi vs. Mehraj-ud-din Mandoo and Ors., 2011 ACJ 572, MANU/JK/0152/2009, Major Benjamin Chacko vs. Maha Singh and Ors., I(1987)and ACC 110; MANU/DE/0514/1986, Maj.(now Col.Retd.)Dushyant Lal Kapoor vs. Lt.N.K.Kohli and Ors.MANU/DE/3884/2009 holding as follows:-
22. In the facts and circumstances of this case, it is apparent that the appellant is likely to be denied promotions to the rank of Brigadier or Major General.
There is no evidence on record to show to the contrary. In the light of these facts one cannot be oblivious of the fact that in a career in the Army the promotion to the high rank is extremely dear to those who don the uniform. The loss of promotion not only resulted in monetary loss, but also loss of prestige and self esteem. Given this background the award of compensation of Rs.1,50,000/- by the Tribunal for loss on account of disability appears to be quite inadequate. In my view keeping in view the fact that the MAC.APP.32/2007 Page 5 of 8 accident took place in 1995 it will be appropriate to enhance this compensation to Rs.8 lacs
11. In the present case the Tribunal has awarded Rs.1 lac on account of loss of promotion chances and also Rs.1,80,792/- as loss of wages on account of disability. The Tribunal assessed the functional disability at 12% and noted that he was getting a salary of Rs.6,980/- and accordingly awarded Rs.1,80,782/-.
12. In the light of the evidence above and the loss of promotion chances regarding any mandatory loss to the appellant I modify the functional disability assessed by the Tribunal from 12% to 40%. Accordingly the loss of income on account of disability/loss of promotional chances would come to Rs.6,03,072/- (Rs.6,980 x 12 x 18 x 40/100). This would be in lieu of the income on account of disability of Rs.1,80,792/- and Rs.1 lac on account of loss of promotion.
13. Coming to the issue of loss of mandatory compensation on account of the special allowance. As per affidavit of PW-10 he has in his affidavit given full details of the loss suffered totalling Rs.3,05,177/-. Another break-up is given as Ex.PW9/2 which shows the loss of Rs.2,56,970/- which reads as follows:-
PERIOD BASIC DA SDA (50%
PAY OF PAY &
DA)
18.2.99 to 2632 842 1737
28.2.99
Mar-99 6700 2144 4422
April 99 6700 2144 4422
MAC.APP.32/2007 Page 6 of 8
.... ... ... ...
... .. .. ..
February 2003 7500 4125 5813
March 2003 7500 4125 5813
April 2003 7500 4125 5813
Total deprivation of SDA 256970/-
14. The Tribunal relied upon the evidence of the appellant as PW-10 to hold that as per the calculations given in the affidavit the loss of Rs.3,05,177/- has occurred in allowance upto April 2003. The matter of fact is that the appellant was repatriated in February 1999 on account of the injuries sustained. The Tribunal noted that deputation to SPG is not a matter of right but depends upon quantitive requirement of physical standards and other issues. Hence, the Tribunal did not grant the entire allowance claimed of Rs.3 lacs but awarded Rs.1,50,000/- for loss of special allowance. The Tribunal also noted that the appellant went on deputation to Intelligence Bureau in March 1999.
15. There appears to be no evidence on record to show that the appellant would have remained on deputation with SPG till April 2003. In the absence of any such evidence I see no reason to disagree with the findings of the Tribunal.
16. Total compensation would now work out as follows:-
1.Reimbursement of medicine Rs.10,000/-
2. Loss on account of disability/ Rs.6,03,072/- Promotional chances
3.Loss of wages Rs.67,240/-
4.Loss of special allowance Rs.1,50,000/-MAC.APP.32/2007 Page 7 of 8
5.Special diet Rs.40,000/-
6.Conveyance Rs.40,000/-
7.Loss of Pain and suffering Rs.1,00,000/-
Total Rs.10,10,312/-
17. Additional compensation amount alongwith accumulated interest @6% be deposited by the insurance company with the Registrar General of this Court. Registrar General shall release the same to the claimant as directed by the Tribunal.
18. Appeal stands disposed of.
JAYANT NATH, J NOVEMBER 20, 2014 n MAC.APP.32/2007 Page 8 of 8