Delhi High Court
Girish Babu Gupta vs Omkar Singh And Ors on 11 February, 2015
Author: G.P. Mittal
$-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th February, 2015
+ MAC.APP. 1055/2012
GIRISH BABU GUPTA
..... Appellant
Through: Mr.O.P. Manni, Advocate with
Mr. Manish Maini, Advocate
versus
OMKAR SINGH AND ORS ..... Respondents
Through: Ms. Shantha Devi Raman,
Advocate with Mr. Garud M.V.,
Advocate for Respondent no.4.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM.APPL 16713/2012(delay)
1. For the reasons stated in the application, delay is condoned.
2. The application stands disposed of.
MAC.APP.1055/2012
3. The appeal is for enhancement of compensation of
Rs.8,46,719/- awarded by the Motor Accident Claims Tribunal
(the Claims Tribunal) to Appellant Girish Babu Gupta who
suffered grievous injuries resulting in amputation of his right
leg above the knee in a motor vehicular accident which
occurred on 27.01.2008 at 11:00 a.m.
4. During inquiry before the Claims Tribunal, it was claimed that
the Appellant was carrying on the business of cloth trading in
the name and style of Gupta Cloth Emporium, South Ganesh
Nagar, Delhi. He placed on record Income Tax Return (ITR)
for A.Y. 2007-08 whereby he returned a total income of
Rs.1,17,850/-. The Claims Tribunal awarded compensation of
Rs.8,46,719/-, which is extracted hereunder:
S.No. Head of Granted by the
Compensation Claims Tribunal
1. Medical Expenses Rs.2,29,511/-
2. Loss of Future Rs.2,96,096/-
Income
3. Loss of Income Rs.21,112/-
during treatment
(Rs.5278 x 4 )
received for 4 months
4. Non-Pecuniary Heads Rs.3,00,000/-
Total Rs.8,46,719/-
5. The Claims Tribunal did not take into account the income of
Rs.1,17,850/- as per the Income Tax Return on the ground that
there was just one ITR and therefore, it awarded the loss of
income for a period of four months and loss of earning capacity
taken as 42.5%.
6. The following contentions are raised on behalf of the Appellant:
(i) The Claims Tribunal erred in not believing the income of
the injured and awarding compensation for loss of
income and loss of earning capacity on the basis of
minimum wages; and
(ii) The Claims Tribunal erred in taking the functional
disability as only 42.5%. In case of amputation of leg
above knee, the Appellant was totally disbelieved and
loss of earning capacity ought to have been calculated on
the basis of functional disability as 85%.
7. On the other hand, the learned counsel for Respondent no.4
Insurance Company supports the impugned judgment and states
that the overall compensation awarded by the Claims Tribunal
is just and reasonable.
DETERMINATION OF INCOME:
8. To determine the income of the Appellant, the Claims Tribunal
ought to have appreciated the testimony of the Appellant in the
shape of his Affidavit Ex.PW1/A and cross-examination
recorded on 27.05.2009. Apart from the fact that the witness
from the Income Tax Department proved the ITR for the A.Y.
2007-08, the Appellant testified that he was carrying on the
business of of cloth trading in the name and style of Gupta
Cloth Emporium, South Ganesh Nagar, Delhi and was earning
Rs.10,000/- per month. In cross-examination, this part of the
testimony of the Appellant was not challenged either by the
Insurance Company or the owner in spite of the fact that the
Appellant was duly cross-examined on behalf of the owner as
also the Insurance Company. In view of this, I see no reason to
disbelieve the income of the Appellant to be Rs.1,17,850/- as
pre-tax and Rs.95,273/- post-tax in the A.Y. 2007-08.
9. As far as award of compensation towards disability is
concerned, it has been laid down in Raj Kumar v. Ajay Kumar
& Anr., (2011) 1 SCC 343 that the Court must assess the
functional disability to ascertain the impact of disability on the
earning capacity. It has come on record that the Appellant was
carrying on the business of a cloth merchant. Therefore, the
Appellant might have to travel to some places occasionally to
procure cloth for his business. But at the same time, he was
supposed to be at his shop/place of work mostly for the purpose
of carrying out the retail sale. In view of this, in my view,
42.5% functional disability was rightly considered by the
Claims Tribunal.
LOSS OF EARNING CAPACITY:
10. In the absence of any evidence towards future prospects, the
Appellant will not be entitled to any addition particularly when
his age was 52 years. (See Reshma Kumari & Ors. v. Madan
Mohan & Anr., (2013) 9 SCC 65 and HDFC Ergo General
Insurance Co. Ltd. v. Smt. Lalta Devi and Ors. MAC APP No.
189/ 2014 decided on 12.01.2015). The loss of earning capacity
therefore, comes to Rs.4,45,401/- (Rs.95,273 x 11 x 42.5%).
11. Similarly, the loss of income for the treatment will be
Rs.31,758/- (Rs.95,273/- ÷ 12 x 4).
12. In addition, considering the nature of injuries the Appellant was
entitled to attendant charges. I tend to award a sum of
Rs.6,000/- @ Rs.3,000/- for two months towards attendant
charges.
13. The compensation is recomputed as under:
S.No. Head of Granted by Granted by
Compensation the Claims this Court
Tribunal
1. Medical Rs.2,29,511/- Rs.2,29,511/-
Expenses
2. Loss of Future Rs.2,96,096/- Rs.4,45,401/-
Income/Loss of
Earning
Capacity
3. Loss of Income Rs.21,112/- Rs.31,758/-
during receiving
treatment for 4
months
4. Non-Pecuniary Rs.3,00,000/- Rs.3,00,000/-
Heads
5. Attendant - Rs.6,000/-
Charges
Total Rs.8,46,719/- Rs.10,12,670/-
14. The compensation is thus, enhanced by Rs.1,65,951/- which
shall carry interest @ 7.5% per annum from the date of filing of
the petition till its payment.
15. The enhanced compensation shall be deposited with UCO Bank,
Delhi High Court Branch, New Delhi within six weeks.
16. 75% of the enhanced compensation shall be held in Fixed
Deposit for a period of two, four and six years respectively.
Rest of the compensation shall be released on deposit.
LIABILITY:
17. While dealing with the issue of liability, Respondent Insurance
Company examined R4W1 who deposed about sending of
notice under Order 12 Rule 8 of the Code of Civil Procedure,
1908 (CPC) requiring the owner and the driver to produce
insurance policy and the licence to drive a commercial vehicle.
On appreciating the evidence, the Claims Tribunal found that
there was breach of the terms and conditions of the insurance
policy and therefore, while making Respondent Insurance
Company liable to pay compensation, it was granted recovery
rights. The said order has not been challenged by the
Appellant(claimant). The driver and owners, Respondents no.1
to 3 also preferred not to contest the appeal despite service. It is
therefore, made clear that the enhanced compensation along
with interest as stated above shall be paid by Respondent no.4
Insurance Company, but the Insurance Company shall be
entitled to recover the compensation awarded from Respondent
no.2, the insured of the vehicle.
18. The appeal is allowed in above terms.
19. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
FEBRUARY 11, 2015
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