- (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 compensation 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 29.12.1998 in a collision between a taxi car and a truck. The claimant was traveling 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 benefit of defence under Section 170 of 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, as 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 Attached 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. 450V- 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 evidence 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 mat 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: (i) Loss of income Rs. 12,92, 6767- (ii) Pain and suffering Rs. 3,50,000/- (iii) Loss of house rent income out of Govt. Premises Rs. 3,30,000/- (iv) Tuition fee for daughter for five years Rs. 48,000/- (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. 12,92,6767- 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, therefore, 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 a 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/-.;