BENJAMIN CHACKO Vs. MAHA SINGH

JUDGEMENT

(1.) F.A.0.91 of 1976 is filed by the claimant for the enhancement of compensation. The claimant had claimed Rs. 6,68,000.00 towards compensation while the Tribunal has awarded Rs. 23,218.00. F.A.O. 74 of 1976 is filed by the D.T.C. disclaiming their liability. The accident took place on 24.3.1972 near Safdarjung Airport level crossing. Major Benjamin Chacko was proceeding from Army 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, D.T.C. bus bearing No. DLP 1200 came from the opposite direction. The claimant asserts that the bus as coming at a very high speed and was being driven rashly and negligently on the wrong side of the road. The D.T.C. bus, according to the claimant, did not blow any horn, and banged into the scooter on which 6 was riding. At the same time a railway ambulance DLP 4252 came from behind and he scooter was sandwiched 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 upto the rank of Brigadier. 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 upto the rank of Brigadier. The court found it necessary to record this evidence because the Tribunal had held that it was premature to say that the claimant would not get future promotions and would lose financially because of the same. The Tribunal's order was pronounced on 9.12.1975. Thereafter, the claimant moved an application CM 2575 of 1985 on 29.8.1985, 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 21.8.1985. It is stated in the certificate, "that Col. Benjamin Chacko has been approved for promotion for acting rank of Brigadier. He has not been promoted to the rank of Brigadier, being in low medical category consequent to a scooter accident on 24.3.1972. His immediate junior Brigadier Prabhakar Sadashiv Kulkarni stands promoted from 16.4.1985." The 1982 medical report states:

(3.) In the appeal filed by the D.T.C. 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 D.T.C. has, however, asserted that it was a case of contributory negligence by the claimant and the railway ambulance. The case of the D.T.C. is that at the railway crossing the bus had to be swerved 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 C.M. Verghese Public Witness 2 and has also examined himself. The D.T.C. examined one Khairati Lal RW 1 and Maha Singh RW 2, driver of the D.T.C. 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 D.T C 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 D.T.C. 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 at a fast speed and hit against the bus. Thereafter, the ambulance van came from behind and he 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 witnesses and I find that the appreciation of evidence by the Tribunal is quite correct the 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 D.T.C. and the same is dismissed. I further hold that the D.T.C. 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. 1,500.00 per month as a Major at the time of the accident. The Tribunal has awarded Rs. 20,000.00 towards general damages, Rs, 1,700.00 for the scooter repair, Rs. 900.00 for transport during the period the claimant was going to the hospital and Rs. 618.00 for loss of pay during the hospitalisation of the claimant. The Tribunal has thus awarded a am of Rs. 23,218.00 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 11.10.1976, but for his low Medical category. He was actually promoted to the rank of Lt. Col. with effect from 21.3.1979 because of the change which was brought in the general order for promotions on 8.1.1979. He has further deposed that the normal period for promotions to the post of Colonel is 6? years and for promotions to the post of Brigadier two years. He has then stated that on calculations there is a loss of salary of Rs. 7,500.00 for the delayed promotion as Lt. Colonel between October 1976 and 21.3.1979. Similar loss in pay on promotion to the posts of Colonel and Brigadier would be Rs.3,600.00 and Rs. 11,500.00 respectively. He has then stated that if the claimant would have retired as a Brigadier, (he retires in 1989) he would have got an additional benefit of Rs. 37,800.00 towards pension. Lt. Col. kashyap was cross-examined on behalf of the D.T.C. I do not find any infirmity in the said evidence. The figures 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. 60,400.00.