1&2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th February, 2012
+ MAC. APP. 873/2005
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through : Ms. Suman Bagga, Adv.
versus
ASHWANI SONI & ORS. ..... Respondents
Through : Mr. J.S. Kanwar, Adv. for R-1.
+ MAC. APP. 943/2005
ASHWANI SONI ..... Appellant
Through : Mr. J.S. Kanwar, Adv.
versus
UNITED INDIA INSURANCE CO. LTD. ..... Respondent
Through : Ms. Suman Bagga, Adv.
for R-1.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. Both the parties have challenged the impugned award of the Claims Tribunal whereby the compensation of `7,22,858/- has been awarded to the claimant, Ashwani Soni. The appellant in MAC.APP.No.873/2005 is seeking reduction of the award amount whereas the appellant in MAC.APP.No.943/2005 is seeking enhancement of the award amount.
2. The accident dated 14th September, 2001 resulted in 50% permanent disability to the claimant in respect of right lower MAC.APP.Nos.873&943/2005 Page 1 of 4 limb. The Claims Tribunal awarded `3,73,248/- towards loss of income due to 50% permanent disability, `15,552/- towards loss of income during treatment, `2,99,058/- towards medical expenditure, `5,000/- towards special diet and conveyance and `30,000/- towards mental pain, suffering and loss of love. The total compensation awarded is `7,22,858/- along with interest @6% per annum.
3. The learned counsel for the appellant in MAC.APP.No.873/2005 submits that the claimant has not proved the loss of earning capacity due to the permanent disability in terms of the judgment of the Supreme Court in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343. The learned counsel further submits that the Claims Tribunal ought not to have taken the future prospects into consideration.
4. The learned counsel for the appellant in MAC.APP.No.943/2005 submits that the claimant was a proprietor of M/s Mikado Faucets which is manufacturing bathroom fittings. It is submitted that the claimant was earning `8,000/- per month. The Income Tax Return of the appellant was proved as Ex.PW-2. It is submitted that the Claims Tribunal erred in holding that the appellant has not proved his income and taking the minimum wages into consideration. The learned counsel submits that the income of MAC.APP.Nos.873&943/2005 Page 2 of 4 the claimant should be taken according to the Income Tax Return, Ex.PW-2 which was ignored by the Claims Tribunal. It is further submitted that the Claims Tribunal has not awarded any compensation for loss of amenities of life and disfiguration. The learned counsel also seeks enhancement for compensation of pain and suffering. The learned counsel further seeks enhancement of the rate of interest.
5. Considering that the Claims Tribunal has not considered the Income Tax Return, Ex.PW-2 for computation of loss of earning capacity, it would be appropriate to remand this matter back to the Claims Tribunal for fresh decision.
6. The learned counsel for the claimant submits that the claimant may be permitted to lead additional evidence to prove the loss of earning capacity due to the permanent disability as well as his present condition. In the facts and circumstances of this case, the claimant is permitted to lead the additional evidence before the Claims Tribunal. The respondent is also permitted to lead the evidence in rebuttal thereafter.
7. In the facts and circumstances of this case, the impugned award is set aside and the case is remanded back to the Claims Tribunal for fresh adjudication after affording opportunity to both the parties to lead evidence. MAC.APP.Nos.873&943/2005 Page 3 of 4
8. The appellant in MAC.APP.No.873/2005 submits that the appellant has deposited the entire award amount with the Claims Tribunal in terms of the impugned award out of which the substantial amount has already been released to the claimant and some amount is lying in fixed deposit. Let the remaining award amount along with interest be released to the claimant subject to furnishing an undertaking that in the event of any reduction of the award, the claimant shall refund the said amount along with interest at such rate as may be determined by the Claims Tribunal.
9. The statutory deposit of `25,000/- made by the appellant in MAC.APP.No.873/2005 be returned back to the appellant.
10. Both the parties are directed to appear before the Claims Tribunal on 16th March, 2012 when the Claims Tribunal shall fix a date for recording of the additional evidence by the claimants.
11. The LCR be returned back forthwith.
J.R. MIDHA, J FEBRUARY 10, 2012 aj MAC.APP.Nos.873&943/2005 Page 4 of 4