Allowed

National Insurance Co.Ltd. v. Dr.Abdul Khaliq and Ors.

J&K HC15 Oct 2018MA/247/2011

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal against a Motor Accident Claims Tribunal award. While acknowledging the appellant's point that income reduced was nil, the Court found the quantum for loss of future earning capacity was excessive. It modified the award from Rs. 23.36 lakhs to Rs. 15 lakhs, considering the impairment of future career prospects due to disability.

What did the court decide?

The appeal is allowed; the award for loss of future earning capacity is modified to Rs. 15,00,000/-, reducing it from the awarded Rs. 23,36,688/-.

National Insurance Co.Ltd. Vs Dr.Abdul Khaliq and Ors. — Motor Accident Claims | J&K HC (2018)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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MA No.247/2011

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Date of order: 15 - 10-2018

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National Insurance Co. Ltd. Vs Dr. Abdul Khaliq and others

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Coram:

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Hon’ble Mr Justice Sanjeev Kumar, Judge. Appearance:

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For the petitioner/ appellant (s) : Mr. C.S. Gupta, Advocate

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For the Non applicant Respondent(s) : Mr. Vikas Magotra, Advocate.

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i) Whether to be reported in Press/Media? Yes/No.

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ii) Whether to be reported in Digest/Journal? Yes/No.

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1 . National Insurance Company is in appeal against the award dated 18.01.2011 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the “Tribunal” ), whereby the claim petition filed by the respondent No.1 has been allowed and a compensation to the tune of Rs. 27,23,688/- alongwith interest has been awarded. The appeal preferred by the appellant- Insurance Company is purely on merit. The appellant does not assail the sums awarded on account of „pain and suffering‟, „medical expenses‟, „transportation charges‟ and „loss of amenities of life‟ etc granted by the Tribunal but is aggrieved of the amount of Rs. 23,36,688/awarded to the respondent No.1on account of loss of future earning capacity. The amount awarded aforesaid is assailed on solitary ground that the injured respondent No.1 was working as Lecturer in Baba Ghulam Shah Badshah University and was drawing a salary Page 1 of 5

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of Rs. 34,000/- per month at the time of accident, and that he continues to serve in the aforesaid University and is receiving the same salary even after being injured in the accident. It is, thus, urged that since there was no actual loss of future earnings occasioned to the respondent No.1 on account of the accident, as such the Tribunal was not correct to award an exorbitant sum of Rs. 23,36,688/- on account of loss of future earnings.

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Respondent No.1 has contested the appeal and countered the arguments raised on behalf of the appellant by stating that respondent No.1 who suffered grievous injuries in the accident, not only suffered huge pain and agony but was visually and orthopedically disabled. The attention of this court was invited to the statements of Dr. P. Sadotra and Dr. S.K. Gupta who had appeared before the Tribunal.

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In nutshell, the contention of respondent No.1 is that given the nature of the injuries suffered by respondent No.1, his chances of further progression in career and life have been seriously impaired. It is submitted that it may be true that respondent No.1 has not lost the job but the fact remains that he would have got better job even had he been physically fit and not rendered disabled. Visual impairment to the extent of 45% would come in the way of opting or going for better job.

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I have considered the submissions made by the learned counsel for the parties and perused the record.

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The accident is not in dispute. The Insurance Company also does not dispute its liability to compensate respondent No.1. The only grievance projected by the appellant in this appeal is that since respondent No.1 has not lost the job and his earning has not been reduced because of the accident or injuries suffered therein, and,

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therefore, the Tribunal was not justified in awarding an exorbitant amount of sum on account of loss of future earnings. The learned counsel may be correct as respondent No.1 is serving as Professor in the Baba Ghulam Shah Badshah University and continues to be so even after the accident. Monthly income which respondent No.1 was receiving by way of salary from the aforesaid University has not been reduced in any manner. But it is equally true that the respondent No.1 is an academician of a repute. His bio-data on record and also the evidence led substantiate this fact. The respondent No.1 was selected for post of Doctorate Fellowship in the National Overseas Scholar Scheme of the Government of India which he was supposed to undergo in Germany but could not do so because of the accident.

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Having regard to the qualification possessed by the respondent No.1, it cannot be denied that he had the opportunity to better his service career. Respondent No.1 may or may not have been selected as Professor in the foreign University but he had sufficient qualification and chance to go up in his career within or outside the country. Visual impairment to the extent of 40% is likely to come in the way of respondent No.1. He has not been thrown out of the job from the University because of his disability but fresh recruitment or appointment against the higher or better position, may require respondent No.1to be physically fit for the performance of the job involving higher responsibility. All these aspects have been taken due note by the Tribunal. The Tribunal has discussed the evidence led by the respondent No.1 in detail and reached certain conclusions which cannot be found fault with. However, the question which begs determination, is as to how the loss of future income in the case of respondent No.1, needs to be determined. The respondent No.1 suffered 40% visual disability and 50% locomotor disability.

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Respondent No.1 may be in a position to perform the duties of Professor in the University where he is working but he may be disabled to take up foreign assignment or seek appointment in the other Universities and Institutions of repute within and outside the country.

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Considering all the aforesaid factors, it cannot be said that because of the accident and the injuries suffered therein, the future earning capacity of the respondent No.1 has not been effected in any manner. But, what would be the actual loss of earning capacity of the respondent No1 in such circumstances is anybody‟s guess and really falls in the realm of speculation. This exactly has been done by the Tribunal when it took half of the monthly income of the respondent No.1 as loss of future earnings per month. Without there being any material on record, the amount taken into consideration by the Tribunal appears to be on the higher side. Respondent No. 1 is a Mathematician and is serving as Professor. Had he not been disabled in the accident, he would have definite chances of going for better assignment and that would have definitely augmented his earnings.

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Taking into consideration the totality of circumstances and the nature of the job, respondent No.1 is performing, his chances of bettering his career being marred by disablement he suffered in accident, it would be just and equitable, if the sum awarded to respondent No.1 on account of loss of future earning capacity, is brought down to Rs.15.00 lacs ( Rs. Fifteen lacs ). I am aware that fixation of Rs. 15.00 lacs by this court is also a handiwork of speculation but, in absence of any material on record to work out the exact loss of future earning capacity, this perhaps is the only way out.

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Accordingly, the appeal is allowed. The award passed by the Motor Accident Claims Tribunal, Jammu impugned in this appeal, is modified. The respondent No. 1 shall be entitled to the sum of Rs.15.00 lacs ( Rs. Fifteen lacs ) on account of future loss of earnings instead of Rs.23,36,688/- awarded by the Tribunal. Rest of the award would stay intact.

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With the aforesaid modification, this appeal is disposed of.

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( Sanjeev Kumar )

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Judge

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Jammu : 15- 10. 2018

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RSB, Secy.

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National Insurance Co.Ltd. v. Dr.Abdul Khaliq and Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Co.Ltd. v. Dr.Abdul Khaliq and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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