C.K. Balaji and The Divisional Manager, New India Assurance Company Ltd. Vs P. Chandrasekaran

N. Kirubakaran, J.@mdashThis is a sad story of an Army personnel. There was a claim of compensation for the injuries sustained by him. The claimant approached the Tribunal which awarded a sum of Rs. 4,63,808/(Rupees Four Lakhs Sixty Three Thousand and Eight Hundred and Eight only). Against the said award, the appeal has been preferred by the Insurance Company.

2. The case of the respondent/claimant before the Tribunal was that he was working as Havildar in Indian Army earning about Rs. 5,300/- per month and he sustained injuries when he was travelling in a Motor-Cycle on 13-11-1997, which was hit by a car driven rash and negligently and as a result of which, the claimant was thrown out from the motor-cycle and sustained fracture on the left wrist and injuries all over the body.

3. The appellant/Insurance Company contested the claim petition stating that the accident occurred only due to the rash and negligent driving of the two wheeler. Moreover, it also pleaded contributory negligence on the part of the two wheeler.

4. Before the Tribunal, the claimant was examined as PW.1 and Doctor was examined as PW.2 and fifteen documents were marked on the side of the respondent/claimant under Exs.P1 to P15. On the side of the appellant no one was examined and no document was exhibited.

5. On appreciation of pleadings and evidence, the Tribunal found that the accident occurred because of the rash and negligent driving of the car and based on Ex.P1 FIR, Ex.P2 Charge-sheet and Ex.P10 Motor Vehicle Inspector''s Report and the reasons are given in paragraph ''7'' of the award. The Tribunal noted that there was no rebuttal evidence to prove the appellants contentions.

6. Taking into consideration of the salary certificate Ex.P11, claimant''s monthly income was fixed at Rs. 7,705/-. The disability was determined at 40% as seen from the paragraph ''12'' of the award. The details of the compensation awarded are as follows:

a) For Loss of Income   : Rs. 4,43,808.00
b) For Medical Expenses : Rs. 15,000.00
c) For General Damage &
   Pain & Suffering     : Rs. 5,000.00
   -----------------------------------------
           Total          Rs. 4,63,808.00
   -----------------------------------------

Aggrieved by the said award only, the appellant/Insurance Company preferred this appeal.

7. Mr.K.Elangovan, learned Counsel appearing for the appellant assailed the award on the following grounds:

a) The Tribunal adopted the multiplier in the case of injury and the multiplier cannot be applied automatically for the injury case in view of the judgment given by the Division Bench of this Court in United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, .

b) Salary Certificate under Ex.P11 was not proved by the respondent/claimant.

c) In spite of injury the claimant was able to do other works.

d) The disability sustained by the claimant is not a total permanent disability and hence no amount could be given by adopting the multiplier.

8. On the contrary, Mr. B. Saravanan, learned Counsel appearing for the respondent/claimant strenuously contended that though the Tribunal adopted the multiplier in arriving at the loss of income, it did not take into account the future prospects of the injured as he was likely to retire as Subedar Major if he was not injured and in that event, he would have earned about Rs. 19,800/- per month. Hence, the calculation adopted by the Tribunal for arriving loss of earning is wrong.

9. Even though there is no appeal or cross-appeal by the claimant, the learned Counsel for the respondent urged that this Court can always enhance the amount invoking Order 41 Rule 33 of the Code of Civil Procedure. The learned Counsel also supported the award contending that correct multiplier as per Schedule appended to the Motor Vehicles Act, was applied. However, the monthly income arrived at by the Tribunal, is on the lower side, and pleaded for enhancement.

10. The learned Counsel relied upon the four Judge Bench judgement of the Honourable Supreme Court in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, , wherein a carpenter fell down during the course of employment and suffered injuries resulting in the amputation of his left arm. The Honourable Supreme Court held that the injury was of such a nature to cause permanent disablement and it incapacitated him from performing all works which he was capable of performing before the accident and confirmed the award passed by the Tribunal fixing the disability 50%. Citing that the judgment, the learned Counsel for the claimant submitted that in this case also, a Computer Operator working in Indian Army could not use his fingers as he had sustained Grade-I, compound commuted fracture of both bones of left forearm. For using computer, the claimant has to use both fingers of both hands. Fracture in the hand, would definitely affect the use of computer and he would not be in a position to discharge the computer operating functions effectively.

11. The learned Counsel also relied upon the evidence of PW.2 Doctor, who spoke about the disability and also the disability certificate Ex. P14 in which it was stated about the condition of the claimant which is extracted as follows:

1. Left Forearm of movement clicking sound present.

2. Pain and tenderness present on movement.

3. Radiologically ulnar bone not united screws loosend.

4. As a defence army service the personal he cannot pursue job as a soldier.

5. While working in the computer he cannot operate high speed.

6. Carrying and taking heavy weight the left forearm gives him severe pain due to malunion.

7. He must undergo another surgery again.

For the above conditions, PW.2 estimated disability of the claimant as 50%. However, the Tribunal fixed disability at 40% only. Hence, the respondent counsel contended that application of multiplier by the Tribunal is justified.

12. The learned Counsel for the appellant submitted the author of Ex.P11 was not examined and hence, the Tribunal ought to have ignored Ex.P11, salary certificate and ought not to have arrived at the monthly income of the injured at the rate of Rs. 7,705/-. A perusal of law of evidence would reveal that Ex.P11 was issued by Indian Army and Ex.P11 speaks about the salary drawn by the injured. It is not always necessary that the author of the document should always be examined before the Court to prove the documents. The salary details of the claimant alone were given. The claimant is the beneficiary of the document which spoke about his salary and other conditions and hence, the competency of the witness namely PW.1 claimant to speak about Salary Certificate cannot be questioned. Apart from that it was issued by Army official and its authencity can not be doubted.

13. Mr. K. Elangovan learned Counsel for the appellants, relied upon the judgment of the Division Bench of this Court in Kasinathan, Lakshmi, Rajathi, Sivabakyam and Murugan rep. by father Kasinathan Vs. P.A. Thangavel, The Branch Manager, United India Insurance Company Ltd. and The Managing Director, Thiruvalluvar Transport Corporation Ltd., in which the certificate was produced in support of the income of the deceased arising out of the Motor Accident Claims. In that case, the author of the certificate was not examined. The Division Bench of this Court, on an appreciation of the facts of that case, found in paragraph ''5'' that the income certificate without examination of the author cannot be relied upon. In that case, the deceased was a supplier of tea and coffee, whereas in this case, the claimant was a Hawildar working in Indian Army. By no stretch of imagination, the claimant''s salary certificate could be compared with the certificate said to have been issued in respect of coffee and tea supplier. Moreover, in that case, the victim died and a third party spoke about the salary details of the deceased, whereas, in this case, the injured himself was examined and he deposed about the salary drawn by him. Hence, the judgment relied upon by the learned Counsel for the appellant does not help the appellant.

14. The competency of claimant PW.1 to speak about Ex.P11 cannot be questioned as he is the right person to speak about the document. The said Ex.P11 cannot be ignored on the ground that the claimant did not examine the author of the document. As stated above, Ex.P11 was proved before the Tribunal by the claimant and the Tribunal rightly relied on Ex.P.11.

15. As far as the other contention of Mr. K. Elangovan , learned Counsel for the appellant, that he was fit enough to do other work, that was why the respondent joined the Army again. The learned Counsel for the respondent on the contrary relied upon the Ex.P.12, certificate regarding disability of the claimant for non- selection for promotion. It is known fact that in Army, a person should have a physical fitness to join the duty and to continue to do the work. The learned Counsel for the respondent relied upon the information about "The Military Jobs in India." He further relied upon the "Direct Recruitment procedure for Group C & D for the civilian Posts in Army", wherein physical fitness is emphasised as essential. The eligibility for Indian Army Soldiers Clerk Exam is that 10+2/Intermediate exam passed in Science with Physics, Chemistry, Maths and English and that no weightage is given for higher qualification and also should have possessed minimum height, weight and chest. Regarding Medical Standards it is given as follows:

A candidate should have robust physique and good mental health. Chest should be well developed having minimum 5 Cms expansion. Should have normal hearing with each ear and good binocular vision in both eyes. He should be able to read 6/6 in distant vision chart with each eye. Colour vision should be CP-III. should recognise red and green colours. Should have sufficient number of natural healthy gum and teeth i.e. minimum 14 dental points. Should not have disease like deformity of bones, hydrocele and varicocle or piles.

16. By relying upon those materials, the respondent''s counsel emphasised that the military jobs even in civilian posts require minimum physical fitness and medical standards and that by injury caused in the accident, the claimant lost his eligibility as he sustained 50% disability and that Ex.P12 proves that his disability caused non-selection for promotional posts.

17. The learned Counsel for the respondent further submitted that the respondent filed additional documents in the appeal namely a)Willingness Certificate for continuance in service dated 24.03.2003 b)Willing/Not Recommended Cases dated 12.01.2004 issued to the claimant. The learned Counsel for the respondents submitted that because of the injury and disability the claimant was discharged from military service as he was not found fit for work in the Indian Army and the claimant lost the job permanently. Only to prove those facts, the claimant filed additional document by filing M.P.(MD) No. 1 of 2008 under Order 41 Rule 27 of Civil Procedure Code.

18. The learned Counsel for the appellant opposed the reception of those documents as additional evidence that too in the appellate stage. The learned Counsel for the claimant submitted that these documents came into existence subsequent to the passing of the award on 22-01-2001 namely on 24.03.2003 and 12-01-2004, and the same should be received in evidence. Order 41 Rule 27 of the CPC enables the appellate Court to receive the additional documents. Admittedly, on the date of passing of award, these documents were not in existence and it only came into existence subsequent to the passing of the award. Apart from that, these new documents would throw light as to how the disability affected the claimant and why he was discharged from Indian Army services. The documents would help adjudicating the issues in the appeal.

19. It has been decided by the Honourable Supreme Court in Basayya I. Mathad Vs. Rudrayya S. Mathad and Others, , North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., that the appellate Court has got jurisdiction and power to receive the additional evidence if the party establishes notwithstanding diligence, such evidence within the knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree was passed. As stated above, the documents came into existence subsequent to the award and they speak about the loss caused to the claimant and hence those documents are relevant documents to decide the loss caused to the claimant. This Court can also take note of subsequent entries.

20. These additional documents have been issued by the competent authority in Indian Army and the same cannot be suspected or challenged. Therefore there is no necessity to prove those documents through any witness and the documents would speak for themselves. Hence, this Court accepts those documents as essential and necessary documents to adjudicate the matter and they are received and marked as Exs. P16 and P17. By marking those documents, this Court rejects the contention of the learned Counsel for the appellant that the matter is required to be remanded back to the Tribunal so that the Tribunal would give an opportunity to test the documents sought to be marked in the appeal.

21. A perusal of the newly marked documents(Ex.P16 and P17) would show that the claimant was placed in "permanent disability medical category" and he was found to be not suitably employed in his present or alter employment and his retention was not recommended under Ex.P16. Ex.P17 dated 12.01.2004 proves the discharge of the respondent from the Indian Army service. As per the above documents, though the respondent was willing to work he was not recommended for the job due to lack of physical fitness due to injuries caused to him in the accident. The claimant lost his job with effect from 24-03-2003 as per Ex.P17 because of the injuries.

22. A conjoint reading and appreciation of all the documents and the office promotion chart produced by the claimant would prove that he was earning about Rs. 7,709/- as proved by Ex.P12 and he was supposed to have reached the post of Subedar Major for which he would get a salary of Rs. 13,000+4800+2000 : Rs.19,800/- per month till his retirement viz 52 years is the retirement age in Army.

23. Applying the principles adopted in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, the present salary has to be determined.

Claimant''s present Salary            : Rs. 7,709
Future Salary at the time of)
retirement as Subedor Major )        : Rs.19,800

Present salary Rs. 7,709/- and future salary Rs. 19,800/- are to be added and the said amount has to be divided by 2 to get the average gross monthly income.

Rs. 7,709 + Rs. 19,800 : Rs.27,509/-
                         Rs. 27,509
                       -------------- 
                       : Rs.13,754.50

2 From gross monthly income, 1/3 has to be deducted towards personal expenses of the claimant.

Rs. 13,754.50 x 2 : Rs.9,169.66
                   --------------
3 Rounded of to Rs. 9,200/-
Loss of earning capacity per month : Rs.9,200/-
The annual loss of
earning capacity                   : Rs.9,200 x 12 
                                   : Rs.1,10,400

The claimant sustained injuries at the age of 30 as on 13-11-1997. Army service is available to the claimant till the age of 52 i.e., claimant was discharged from army service on 24-03-2003 at the age of 36 years.

The balance years of service from 24-03-2003 till he attains the age of 52 : 16 years.

Applying loss of service for 16 years, the proper multiplier is ''16''.

For loss of earning, annual loss has to be multiplier with years of service:

    Rs. 1,10,400 x 16 : Rs.17,66,400
The Loss of Income is : Rs.17,66,400
Income Tax deduction
                 10% of Rs. 17,66,400 -
                        Rs. 17,66,400 x10
                       ------------------- 
                      : Rs.1,76,640/-
100
                      : 17,66,400 - 1,76,640 
                      : Rs.15,89,760/-
Loss of income rounded of to Rs. 15,89,800/-

24. It is to be seen in this case that the claimant has not challenged the award. In Jagdish Singh Vs. Madhuri Devi, , the Honourable Supreme Court held that an appeal is a continuation of original proceedings and is rehearing of the main matter and the appellate Court reappraise, reappreciate, and review the evidence and come to its own conclusion. Therefore, this Court by taking into consideration of subsequent events, can re-appreciate the facts and evidence and recalculate the compensation.

25. This Court has got jurisdiction and power under Order XLI Rule 33 read with Section 151 of the CPC to enhance the compensation even in the absence of any appeal by the claimant. This Court draw support from judgment of the Honourable Apex Court in Nagappa Vs. Gurudayal Singh and Others, and The APSRTC v. Ramadevii and Ors. reported in 2008 (1) TNMAC 234 (SC). Apart from that, appeal is continuation of original proceedings. u/s 173 of the Motor Vehicles Act, this Court can reappreciate the evidence and decide the matter independently, and this Court decides the matter accordingly. Once the matter is seized of by the Court for consideration, irrespective of the fact whether the claimant filed an appeal or not, the pleadings and evidence on record should be meticulously analysed and the law of land at the relevant point of time has to be applied. Hence, applying the principle laid down in Sarla Dixit and Anr. v. Balwant Yadav and Ors. reported in 1996 AIR SC 1274 the loss of income arrived at as stated above.

26. As far as the other headings, the Tribunal rightly awarded a sum of Rs. 15,000/-(Rupees Fifteen Thousand only) as medical expenses and Rs. 5,000/-(Rupees Five Thousand only) was awarded towards pain and sufferings are confirmed. In the result, the award of the Tribunal is modified as follows:

(i)  For Loss of Income   : Rs.17,66,400.00 
(ii) For Medical Expenses : Rs. 15,000.00
(iii)For General Damages  : Rs. 5,000.00
                          ------------------
                    Total : Rs.17,86,400.00
                          ------------------

27. It is distressing to note that an Indian Army Officer was discharged for the injuries sustained by him in the accident which was also proved by the Officer by proper evidence. Inspite of that the Insurance Company which is a Government of India Undertaking, chose to file the appeal in the year 2002 and fought endlessly and thereby denying the benefits to the injured officer. The accident occurred in the year 1999 and he could not enjoy the fruits of the award because of the pendency of the appeal.

28. The appeal is disposed of by enhancing the compensation from Rs. 4.63,802/-(Rupees Four Lakhs Sixty Three Thousand and Eight Hundred and Two only) to Rs. 15,89,760/- (Rupees Fifteen Lakhs Eighty Nine Thousand and Seven Hundred and Sixty only) in the appeal filed by the Insurance Company along with interest of 12% from the date of petition till the date of realization.

29. The learned Counsel for the appellant/Insurance Company seeks four weeks time to deposit the balance amount. Hence, four weeks'' time is granted to deposit the balance amount before the Tribunal from the date of receipt of a copy of this order or on production of a copy by the claimant. On such deposit, the Tribunal is directed to pay the entire award amount to the injured officer within two weeks thereof. No costs.