JUDGMENT
S.B. Wad, J.
1. FAO 91/76 is filed by the claimant for the enhancement of compensation. The claimant had claimed Rs. 6,68,000/- towards compensation while the Tribunal has awarded Rs. 23,218/-. FAO 74/76 is filed by the D.T.C. disclaiming their liability.
The accident took place on 24-3-72 near Safdarjung Airport level crossing. Major Benjamin Chacko was proceeding from armed headquarters to his residence in Green Park. When he reached near Safdarjung Airport level crossing bus stand and was proceeding from the left side of the road, DTC bus bearing No. DLP 1200 came from the opposite direction. The claimant asserts that the bus was coming at a very high speed and was being driven rashly and negligently on the wrong side of the road. The DTC bus, according to the claimant, did not blow any horn, and banged into the scooter on which he was riding. At the same time the railway ambulance DLP 4252 cams from behind and the scooter was sandwitched between the bus and the ambulance. The claimant received very severe injuries creating permanent disabilities. His further promotions in the armed forces were stopped because of the medical unfitness. The claimant claimed that he was only 34 years old at the time of the accident and but for his medical unfitness due to the accident he would have been promoted up to the rank of Brig. The compensation is claimed on that basis.
2. Under the orders of this Court the evidence of the claimant was recorded on April 2, 1980. The evidence of Lt. Col. R.S Kashyap, Assistant Director, Supplies and Transport, Army Headquarters was also recorded. This evidence was necessitated for ascertaining as to what was the effect of the medical unfitness of the claimant and the additional amount of compensation which the claimant would have been entitled had he got the normal promotions up to the rank of Brig. The Court found it necessary to record this evidence because the Tribunal had held that it was premature to say that the claimant would get future promotions and was losing financially because of the same. The Tribunal’s order was pronounced on 9-12-75. Thereafter, the claimant moved an application CM 2575/85 on 29-8-85, producing the documentary evidence regarding his medical unfitness as assessed by the Army Medical Board. By the time the claimant had filed the said application, he was already promoted to the rank of Lt. Colonel and Colonel although with delayed dates. He has produced a Certificate from the Army Headquarters dated 21-8-85. It is stated in the Certificate, “that Col. Benjamin Chacko has been approved for promotion for acting rank of Brig. He has not been promoted to the rank of Brig., being in low medical category consequent to a scooter accident on 24-3-72. His immediate junior Brig. Prabhakar Sadashiv Kulkarni stands promoted from 16-4-85”. The 1982 medical report states:
SUMMARY AND OPINION OF MAJOR P.R. RAO, AMC OF SURGICAL SPECIALIST MILITARY HOSPITAL YOL (KV) ON 27 MARCH, 1982.
This serving officer had sustained head injury and brachial plexus injury in a scooter accident in 1972. Since then he is in medical category S1M1A2 (P) IP1E1 and now he has reported for review. At present he is having difficulty in the movements of the right shoulder joint.
On Examination:
General physical examination–NAD.
There is marked wasting of the deltoid, supraspiratus and infraspiratus muscles on the right side. Abduction of the right shoulder joint – 450 which he does by the movements of the scapula. But he is able to abduct the right upper limb with gradual swinging movement and jerks.
Flexion and extensions are full.
The movements of the right elbow joints are full and free.
Muscle power–Deltoid (R)–grade I
Supraspinatus )
Insfraspinatus ) grade II
Other muscles are grade V
His physical capacity remains same.
Recommended to remain in low medical category S1E1A2(P) UR P1E1.
Employbility remains as before.
Advised to continue physiotherapy of the Rt Shoulder joint.
In the last medical examination in April 1984 there was no change and the Officer continued in the same medical category.
3. In the appeal filed by the DTC the fact of the accident and the injuries sustained are not contested. The consequent medical unfitness, delayed promotions and the financial loss thereby suffered are also not contested The DTC has. however, asserted that it was a case of contributory negligence by the claimant and the Railway Ambulance. The case of the DTC is that at the Railway crossing the bus had to be swered towards its right in order to save some school children who came on the scene unexpectedly. It is also submitted that after seeing the bus going on the wrong side, the claimant ought to have stopped his scooter. The Railway ambulance also should not have tried to cross the railway crossing in haste and should have stopped. It is asserted that the said two vehicles had sufficient time to stop their vehicles as the scooter had seen the bus going on the wrong side from the distance of about 40 ft.
The claimant has examined CM. Verghese PW/2 and has also examined himself. The DTC examined one Khairati Lal RW/1 and Meha Singh RW/2, driver of the DTC bus. Attar Singh, the driver of the railway ambulance was also examined. On close analysis of the evidence the Tribunal has disbelieved the evidence produced by the DTC. The Tribunal has found that the road at the place of the accident was about 80 to 100 ft. wide. The driver of the bus had stated that he had seen the children from the distance of 10 to 15 ft. The Tribunal rightly came to the conclusion that if the bus was running at a normal speed and if it was in its control, the driver should have stopped the bus instead of taking it to the wrong side. The Tribunal has also found that the alleged sudden appearance of children on the road has not been proved. The Tribunal then found that the version of the accident as given by the DTC in its written statement and the version of the accident as given by the driver in his evidence were quite inconsistent. In the written statement it was asserted that the scooter came in a fast, speed and hit against the bus. Thereafter, the ambulance van came from behind and hit the scooter resulting in the injuries. In his examination in the Court the driver of the bus, however, did not give this version. I was taken through the evidence of all the witness and I find that the appreciation of evidence by the Tribunal is quite correct. I further agree with the Tribunal that there was no evidence on record to show that the claimant sustained injuries on account of rash and negligent driving on the part of the railway ambulance No. DLP 4252. There is no merit in the appeal of the DTC and the same is dismissed. I further hold that the DTC bus was being driven in a rash and negligent manner, causing the accident and serious injuries to the claimant.
The claimant was drawing a salary of Rs. 1,500/- per month as a Major at the time of the accident. The Tribunal has awarded Rs. 20,000/- towards general damages, Rs. 1,700/- for the scooter repair, Rs. 900/- for transport during the period the claimant was going to the hospitals and Rs. 6181/- for loss of pay during the hospitalisation of the claimant. The Tribunal has thus awarded a sum of Rs. 23,218/- towards compensation. The submission of the claimant is that the compensation is too inadequate. I have already referred to the evidence recorded in this Court. Lt. Col. R.S, Kashyap has stated that the claimant would have been promoted as a Lt. Col. on 11-10-76, but for his low medical category. He was actually promoted to the rank of Lt. Col. with effect from 21-3-79 because of the change which was brought in the general order for promotions got on 8-1-79. He has further deposed that the normal period for promotions to the post of Colonel is 6-1/2 years and for promotions to the post of Brig, two years. He has then stated that on calculations there is a loss of salary of Rs. 7,500/- for the delayed promotion as Lt. Colonel between October 76 and 21-3-79. Similar loss in pay on promotion to the posts of Colonel and Brig, would be Rs. 3,600/- and Rs. 11,500/- respectively. He has then stated that if the claimant would have retired as a Bri. (He retires in 1989) he would have got an additional benefit of Rs. 37,800/- towards pension. Lt. Col. Kashyap was cross-examined on behalf of the DTC. I do not find any infirmity in the said evidence. The figure of additional payment due to loss of promotion in time has been worked out according to the pay scales of the similar officers. The financial loss suffered by the petitioner as deposed by Lt. Col. Kashyap was Rs. 60,400/-.
4. The claimant was actually promoted as a Lt. Colonel and was selected for promotion to the post pf Brig, but was not actually promoted because of the medical unfitness. The claimant has claimed additional sums as financial loss.
The counsel for the appellant has submitted that considering the rise in salary at various stages and the other allowances the lost suffered by the appellant will be more than a lac of rupees as against the awarded compensation. The counsel for the respondents on the other hand submits that the eventualities such as premature retirement and uncertainties should also be borne in mind while awarding the compensation. I have gone through the figures of the rise in the salary and allowances and considering all aspects of the matter I hold that the appellant is entitled to additional sum of Rs. 1,00,000/- towards the compensation. He will also be entitled to 6% simple interest per annum from the date of the application. The payment shall be made within three months from today.