United India Insurance Co. Ltd. vs Ashwani Soni & Ors.
2012 Latest Caselaw 949 Del

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

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

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.

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