Delhi High Court
Gurmeet Singh vs Mukhtar Khan & Ors. on 14 December, 2011
Author: G.P. Mittal
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th December, 2011
+ MAC.APP. NO.254/2007
GURMEET SINGH ..... Appellant
Through: Mr. Sunil Dalal, Adv. with
Mr. Abhishek Virmani, Adv.
versus
MUKHTAR KHAN & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1) The Appellant seeks enhancement of compensation in respect of
the injuries suffered by him in an accident which took place on
18.08.2001. The Appellant suffered 50% permanent disability
in respect of his right upper limb. It was claimed before the
Tribunal that the Appellant was running business and was
earning `77,000/- per annum. The Income of `77,130/- was
filed as per the Income Tax Returns for the Assessment Year
2001-02 with the income tax Department on 29.11.2001 i.e.
after the date of the accident. The Tribunal awarded the
compensation as under:
i) Towards Expenses on Treatment `26,465/-
ii) Conveyance and Special Diet `10,000/-
iii) Loss of Amenities in Life `2,79,936/-
iv) For Pain & suffering `15,000/-
v) For inability in moving the right hand
properly `5,000/-
Total ` 3,36,401/-
2) The Tribunal disbelieved the Income Tax Return placed on
record by the Appellant on the ground that this was the only
return filed by him and that too after the date of the accident.
No other Income Tax return was filed before or after the
accident. It is noteworthy that no evidence with regard to the
Appellant's business was placed on record except a statement
purported to be filed along with Income Tax Return which
showed that the Appellant was trading in ball bearings and
undertook the work for repairing motor cars. In the absence of
any documentary evidence with regard to the Appellant's
business and non-filing of any other return before or after the
accident, the Tribunal rightly disbelieved the Appellant's
income. Otherwise also, deceased's income loses significance
in view of the fact that while awarding compensation for loss of
earning capacity, the Tribunal and this Court is required to see
whether there is any functional disability affecting the loss of
earning capacity in view of Raj Kumar V. Ajay Kumar and
Another, 2011 ACJ 1.
3) During the course of arguments, it was submitted by the learned
counsel for the Appellant that the Appellant was running a
small restaurant had shifted to the business of sale and purchase
of second hand cars. This is not borne out from any record. In
any case, if the Appellant carried on the business of trading in
ball bearings and work for repairing motor cars as was stated in
the statement Ex.PW2/53 filed along with the Income Tax
Return, there is no evidence that the injuries suffered by him
affected his earning capacity.
4) There is no Appeal filed by the owner or the insurance company
and, therefore, my task becomes easier. The compensation of `
2,79,936/- awarded towards the loss of earning capacity was
really towards the loss of amenities, pain and suffering,
disfigurement and loss of marriage prospects. The Tribunal,
however, erred in granting interest only from 12.04.2007. It
was not the case of the Respondents nor it was so held by the
Tribunal that the Appellant was in any way responsible for the
delay. The Tribunal, therefore, ought not to have withheld the
interest from the date of filing of the petition till after one
month of the award.
5) Once the amount of `2,79,936/- is considered towards non-
pecuniary damages as stated above, there is no ground to
interfere in the quantum of compensation awarded by the
Tribunal. Appellant would be entitled to interest @ 7.5% per
annum from the date of filing of the petition till the amount was
deposited with the Tribunal.
6) The Respondent insurance company is directed to deposit the
amount within six weeks, failing which the Appellant would be
entitled to interest @ 7.5% per annum on the interest also
accrued from the date of this order till the date of payment.
7) The Appeal is allowed in above terms. No Costs.
(G.P. MITTAL)
JUDGE
DECEMBER 14, 2011
pst
