Delhi High Court
Ashok Bansal vs Mangal Chand Jat And Ors on 25 August, 2014
$~A-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25.08.2014
+ MAC.APP. 160/2005
ASHOK BANSAL ..... Appellant
Through Mr. Navneet Goyal and Ms.
Rupika Singh, Advocates.
versus
MANGAL CHAND JAT AND ORS. ..... Respondents
Through Ms. Suman Bagga, Advocate
for R-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. The present appeal is filed seeking to impugn the award dated
31.07.2014.
2. The brief facts of the case are that on 03.09.2000 claimants Mr.
Ashok Bansal, Mr. Madan Mohan along with one Mr. Hari Sharma were
returning from Jaipur to Delhi in a car. When the car reached at Toll Naka
within the jurisdiction of Police Station Chandwaji, District Jaipur,
Rajasthan, it was hit by a Mahindra Jeep. It is averred that the Jeep was
being driven in rash and negligent manner at a fast speed. The claimants
were injured. Mr. Hari Ram Sharma succumbed to his injuries sustained
in the accident. The appellant herein suffered multiple fracture on his right
leg middle thigh bone, fracture in the left wrist, right elbow fracture left
side multiple rib fracture. He claims that his business suffered heavy losses
and he has claimed total compensation of Rs.3 crores.
3. Three claim petitions were consolidated and heard together. We are
in the present case concerned with the appellant Mr. Ashok Bansal, who
seeks enhancement of compensation awarded by the present appeal.
4. The issue revolves around the enhancement of compensation. The
Tribunal awarded a total compensation of Rs.7,10,000/- as follows:-
(i) Loss of Income Rs. 50,000/-
(ii) Loss of Earning Capacity Rs.2,60,000/-
(iii) Pain and Suffering Rs.2,00,000/-
(iv) Loss of Amenities of Life/
Permanent Disability Rs.1,50,000/-
(v) Conveyance /Spl. Diet and
attendant Charges Rs. 50,000/-
Rs.7,10,000/-
5. The petitioner has in his evidence by way of affidavit stated that he is
proprietor of M/s Ram Kishore Marketing Corporation and also the
Managing Director of M/s Ram Kishore Chemical Company (P) Ltd. He
has deposed his income based on income tax return for the year 2000-2001
is Rs.86,62,026/-.
6. Learned counsel for the appellant had submitted that income has to
be assessed based on the base year i.e. the year prior to the accident which
in the present circumstances come to Rs.70 lacs. It is urged that the appellant
was bed-ridden for one and a half year and his income as a result of the
accident has declined.
7. The Tribunal noted the different incomes being shown in the various
assessment years where income from salary and income from the business
were shown differently. For the year 1999-2000, the income from business
is Rs.38,40,916/- (Ex. P-1), for the year 2000-2001 the income from
business is Rs.79,72,212/- (Ex.P-2), income from the business for the year
2001-2002 is Rs.25,57,805/- (Ex.P-3) and income from the business for the
year 2002-2003 has fallen to Rs.21,381/- (Ex.P-4). The Tribunal noted that
the claimant appears to have a business of trading in bullion and chemicals
on whole sale basis. The tribunal noted that the claimant was no doubt
earning in lakhs but it is stated that the claimant in his detailed affidavit has
not articulated the loss suffered by him or his firm in terms of money. The
Tribunal also noted that the documents Ex. P-1 to P-4 i.e. income tax returns
filed are photocopies and not supported by receipts/challans evidencing
payment of income tax. Though an opportunity was given to the claimant to
file such documents none has been filed. The Tribunal did not accept the
arguments of the claimant that the income has decreased on account of
injuries sustained by the claimant, as he was paying salary upto the tune of
seven to eight lakhs per year indicating that the claimant had a team of
employees to run his business. Hence the Tribunal concluded that his
business would not be effected as trading in bullion could have taken place
on telephone, mobiles, fax etc. The Tribunal has also noted that the market
conditions during the relevant time have not been revealed and that low
earnings could have been on account of fluctuations in market rates. The
Tribunal also noted that disability certificate which said that the claimant
had 40% disability. The Tribunal assessed the business income at Rs.1 lac
per year applying a multiplier of 13 keeping into account 40% disability of
the claimant, the compensation worked out to Rs.5,20,000/- . The
Tribunal held that it would be just and reasonable to award a compensation
of Rs.2,60,000/- towards loss of future earning capacity. Hence the figure of
Rs.5,20,000/- was reduced accordingly. The tribunal awarded Rs.50,000/-
towards loss of income for business.
8. Learned counsel appearing for the appellant has strenuously urged
that keeping in view the family position of the appellant based on the
income tax return the loss of income has to be assessed based on these
returns. It is strenuously urged that the accident took place on 03.09.2000
and as per last return filed for the assessment year 1999-2000, the appellant
had filed the return of Rs. 39,36,812/-. The Commissioner Income Tax
assessed it as Rs.64,79,510/-.
9. To see the merits of the contention of the appellant, I will first have
a look at the evidence by way of affidavit filed by the claimant. In his
affidavit by way of evidence the claimant explains his income as follows:-
"1. That the deponent was engaged in the business. The deponent
was the prop. Of M/s Ram Kishore Marketing Corporation having
its office 235, Katra Peran, Tilak Bazar, Delhi-110006. Besides
this the deponent was also the Managing Director of M/s Ram
Kishore Chemical Company (P) Ltd. 235, Katra Peran, Tilak
Bazar, Delhi-110006. The deponent is Income Tax payee. The
deponent for the year 2000-2001 had annual income of
Rs.86,62,026/- and paid income tax of Rs.30,77,544/-. The copies
of the Income Tax return as filed for the year 1999-2000, 2000-
2001, 2001-2002 and 2002-2003 are exhibit P-1 to P-4.The
deponent has for the year 1999-2000 filed its return for a sum of
Rs.39,36,812/- Whereas the Commissioner Income Tax assessed
the income for Rs.64,79,510/-. The copy of order is exhibit P-5."
10. The rest of the evidence by way of affidavit deals only with the
cause of the accident and the medical treatment done by the claimant.
There is no attempt to explain the nature of work being done by the
claimant. There is also no attempt to show the effect of the injuries on his
business and how his future earning capacity has reduced. In his cross
examination the claimant has stated as follows:-
"I was not able to resume my business activities and duties for
about 1½ years after the accident. My treatment record which
was summoned from Sant Parmanand Hospital could reveal that I
was not able to resume my business activities for about a year and
a half. I cannot show any document today from my employer M/s
Ram Kishore Chemical Company (P) Ltd. that I was not able to do
any work for about a year and a half. I am an Income Tax Payee
since the time I attained the age of majority. I am proprietor of
Ram Kishore Marketing Corporation. During the period of my
absence my wife looked after the affairs of my business. I cannot
show any document today that my wife looked after the affairs in
my absence. It is wrong to suggest that I was not able to attend
my business activities for about a year and a half. It is wrong to
suggest that I am deposing falsely."
11. The claimant has filed a photocopy of Assessment Order of the
Income Tax Department for the assessment year 1999-2000. As per the said
Assessment Order the claimant was having the business of trading in
bullion and chemicals. It also shows that the claimant used to purchase
bullion from the importing banks in bulk and on the very same day sell
them in the open market on whole sale basis. The Assessment order notes as
follows:-
"Looking into the above facts, wherein the assessee has not
able to give a single name and address of the parties to whom
cash sales worth Rs.641 crores have been made and hence not
a single cash sale has been verified, wherein the assessee has
been consistently selling his goods below the prevailing market
price, the assessee's gross profit rate has fallen by 36% and also
the assessee's admission of having sales out side books and
leakage of profit on cash sales, the trading account of the
assessee cannot be relied upon. As the assessee's monthly
turnover has fallen by 60% the fall in G.P. rate is estimated at
25% and hence the G.P. rate is estimated at 0.1875%.
Estimating the sales at Rs.652 crores, the gross profit works out
Rs.1,22,25,000/-. Since the assessee has shown gross profit of
Rs.1,04,50,062/-, the excess of Rs.17,74,398/- is added to the
trading account of the assessee".
12. Ex. P-1 to Ex. P-4 which are filed by the claimant shows his income
as follows:-
Exhibit Numbers Assessment Year Total Income
P-1 1999-2000 39,36,812/-
P-2 2000-2001 86,62,026/-
P-3 2001-2002 28,15,435/-
P-4 2002-2003 3,66,026/-
13. The copy of the balance-sheet filed by the claimant are only
photocopies. The Chartered Accountant has not entered into the witness-
box to show the income that are actually being received by the claimant.
The returns are photocopies. There is nothing else to support such large
incomes or the returns. Though the claimant claims that for one and a half
year he was not able to work, no evidence whatsoever has been led to that
effect.
14. Regarding the loss of earning capacity, the claimant has not
successfully shown the loss of income that he may have suffered on
account of said disability. Given the nature of business in fact his income tax
return does not show any immediate drop in income. The Tribunal had based
on an annual income of Rs.1 lac assessed the loss of income for 40%
disability at Rs.5,20,000/-. This has been reduced to Rs.2,60,000/- without
any explanation. I enhance the awarded of loss of Earning Capacity based on
a figure of Rs.2 lacs per year instead of Rs.1 lac per year. Loss of Income
would be 2,00,000 x 13 x 40/100 = Rs.10,40,000/-. Hence, I award to the
claimant a sum of Rs.10,40,000/- on account of loss of earning capacity.
15. In my opinion, the Tribunal has rightly awarded loss of income for a
period of six months. I enhance the loss of income for the six months from
Rs.50,000/- to Rs.1,00,000/-.
16. Total compensation now payable is as follows:-
i. Loss of Income Rs. 1,00,000/-
ii. Loss of Earning Capacity Rs.10,40,000/-
iii. Pain and Suffering Rs.2,00,000/-
iv. Loss of Amenities of Life/
Permanent Disability Rs.1,50,000/-
v. Conveyance /Spl. Diet and
attendant Charges Rs. 50,000/-
______________
Rs. 15,40,000/-
______________
17. The claimant shall be entitled to interest @ 6.5 % per annum from
the date of filing of the claim petition till recovery of the balance amount on
the additional amount awarded herein. The appeal stands disposed of.
JAYANT NATH
(JUDGE)
AUGUST 25, 2014
An
