Full Text
HIGH COURT OF DELHI
Date of Decision: 10.07.2023
IFFCO TOKIO GENERAL INSURANCE CO LTD..... Appellant
Through: Mr.A. K. Soni, Adv.
Through: Ms.Aruna Mehta, Adv. for R-1.
JUDGMENT
1. The present appeal has been filed challenging the Impugned Award dated 27.10.2016 passed by the learned Motor Accidents Claims Tribunal, North-East District, Karkardooma Courts (hereinafter referred to as the ‘Tribunal’) in MACT No. 476/2011.
2. The first ground of challenge of the appellant to the Impugned Award is that, in spite of the learned Tribunal observing that no proof regarding the income of the injured/respondent no. 1 herein has been filed, the learned Tribunal has taken the income of the injured/respondent no.1 as Rs.10,000/- per month on the date of the accident.
3. The learned counsel for the appellant submits that even the educational qualification of the injured was not placed on record. He submits that, therefore, at best the income of the respondent no.1 should have been taken as per the minimum wages for unskilled labour prescribed by the Government of NCT of Delhi.
4. On the other hand, the learned counsel for the respondent no.1 submits that the respondent no.1 had placed on record ten original bill books as proof of his income. The learned Tribunal has also recorded that the bill books have been filed, however, no further evidence of income was filed. She submits that being in an Unorganized Sector, mere non-filing of the Income Tax Returns cannot be read against the respondent no.1. She submits that, in fact, there was no cross-examination of the respondent no.1 on the issue of the bill books or his income.
5. I have considered the submissions made by the learned counsels for the parties on this issue. Before adverting to the same, I shall reproduce the findings of the learned Tribunal on this issue, as under:- “As far as income of the petitioner is concerned, it is stated by petitioner in his affidavitthat he was preparing plastic cloth bags and purses and earned a sum of Rs. 10,000/-p.m. However, no proof regarding the income of the petitioner has been filed except original bill books. Even the original documents regarding the educational qualification of the injured have not been placed on record. Looking to the fact of the present case, the possible income, in my opinion, of the claimant would be around Rs, 10,000/- per month on the date of accident…”
6. A reading of the above finding would show that the learned Tribunal has observed that apart from the original bill books, the respondent no.1 had led no further evidence in support of his claim of income. In my opinion, once the bill books have been produced on record and in the crossexamination of the respondent no.1, the veracity of the bill books could not be dislodged by the appellant herein, the bill books could have and have been rightly relied upon by the learned Tribunal as evidence of the income of the claimant/respondent no. 1. The learned counsel for the respondent no.1 submits that these bill books, in fact, show a monthly income of more than Rs.17,000/- per month for the respondent no.1.
7. I have also gone through the cross-examination of the respondent no.1 recorded by the learned Tribunal on 03.07.2015. I find that, apart from putting to the respondent no.1 that he was not filing any income tax return and giving a general suggestion that the bill books are fabricated, there was nothing brought on record that will disprove or cause a doubt on the authenticity of the said bill books. I may reproduce the relevant portion of the cross-examination of the respondent NO. 1, as under:- “…I have filed the receipt for Rs. 10,000/only. I had appointed Sh. Giri Raj as my attendant after 4-8-10 days of the accident and he worked with me for five months. Giri Raj is residing in Gali No. 12, Bharampuri. I do not know his exact address. No receipt was taken from him. I had paid Rs. 15,000/-. I am not assessed to income tax. It is correct that I did not file the income tax return as my income did not meet the minimum requirement of income for filing the return. The sewing machines used by us are motorized and the work of embroidery, stitching, peeko etc. can be done with the help of these machines. It is wrong to suggest that I was unemployed and the bill books produced by me are fabricated just to get compensation. It is wrong to suggest that the accident took place due to negligent driving of Mahesh and not the negligence of the tanker. I do not know if the tanker was empty or loaded with some material. It is wrong to suggest that 1 am deposing falsely.”
8. Mere non-filing of the income tax returns, especially, by a person who is engaged in an Unorganized Sector and is earning meagre income from his self-employment, cannot be read as casting a doubt on his income. Keeping in view the strata of the society to which the respondent no.1 belongs and the nature of the work that he was doing, it is not uncommon for such a person not to file the income tax return. Therefore, no adverse inference can be drawn against the respondent no.1 on this account.
9. In Syed Sadiq v. United India Insurance Co. Ltd., (2014) 2 SCC 735, the Supreme Court has held as under:
9. There is no reason in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the appellant claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs 6500 per month.” (Emphasis supplied)
10. In my opinion, the bill books that have been produced by the respondent no.1 prove his income. Based on the said bill books, the respondent no.1 in his affidavit of evidence had stated that his income should be taken as Rs.10,000/- per month. This found favour with the learned Tribunal and I see no reason to differ from the same. Accordingly, the appeal of the appellant on this issue is rejected.
11. The second ground of challenge of the appellant is to the Award of future prospects, that have been awarded by the learned Tribunal in the Impugned Award at the rate of 50% of the determined income of the respondent no.1.
12. The learned counsel for the appellant, placing reliance on the judgment of the Supreme Court in National Insurance Company Ltd. v. Pranay Sethi & Ors., (2017) 16 SCC 680, submits that in case of a self-employed person, the future prospects can be taken only at the rate of 40% of the established income. I find merit in the said submission.
13. In Pranay Sethi & Ors. (supra), the Supreme Court, on the aspect of the future prospects, has held as under:- “59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
14. In view of the above and as the learned Tribunal has taken the age of the respondent no. 1 as 36 years old, to which there is no challenge by the respondent no. 1, the challenge of the appellant to the Impugned Award to this limited extent is accepted. The Award shall stand modified to the above limited extent, inasmuch as the respondent no.1 is held entitled to future prospects at the rate of 40% of Rs.10,000/- per month instead of and in place of 50% as awarded by the learned Tribunal.
15. Though, no cross-appeal or cross-objections has been filed by the respondent no.1 to the Impugned Award, the learned counsel for the respondent no.1 submits that from the evidence of Dr. Sunil Gupta (PW-2), it had been proved on record that the respondent no.1 suffered from a permanent locomotor disability of right upper limb to the extent of 22%. She submits that as the respondent no.1 was self-employed as a tailor, the disability suffered to his right upper limb should have been taken as a permanent disability of 22% itself and the compensation should have been awarded at 22% rather than reducing it to 11%, as has been done by the Impugned Award.
16. On the other hand, the learned counsel for the appellant submits that in the absence of any cross-objections or crossappeal being filed, the respondent no.1 cannot be heard to challenge the Impugned Award, especially to seek enhancement of the compensation as awarded by the learned Tribunal. He submits that even on the merits, the learned Tribunal has rightly found the respondent no.1 to be entitled to compensation considering his disability at 11% in relation to the whole body.
17. I find merit in the objection raised by the learned counsel for the appellant on both the above accounts. In the absence of any cross-objections or cross-appeal being filed, the respondent no.1 cannot seek an enhancement of the compensation. In Ranjana Prakash v. Divl. Manager, (2011) 14 SCC 639, the Supreme Court while interpreting the powers of the Appellate Court under Rule 33 of the Order XLI of the Code of Civil Procedure, 1908 (‘CPC’), has held as under:
18. Further, even on merit, the learned Tribunal has given a cogent reason for taking the disability of the respondent no.1 as only 11% in relation to the whole body, by observing as under:- “It is difficult to ascertain in exact terms as to how much the disability in right upper limb has affected the whole body of the petitioner. Counsel for petitioner has argued that as important limb of petitioner is rendered almost non-functional, the functional disability be considered 100% where as the counsel for insurance has argued that whole body disability be reduced to half. Considering the age and occupation of the petitioner and the fact that disability relates to right upper limb, I am of the opinion that 11% of disability can be considered in relation to whole body for the purpose of calculation of future loss of income.”
19. The learned counsel for the respondent has been unable to show how the injury suffered by the respondent no. 1 has affected his working and earning capacity. I, therefore, find no merit in this objection/claim of the respondent no.1. Accordingly, the same is rejected.
20. The learned Tribunal is directed to reassess the compensation which is payable to the respondent no.1 in terms of the present order and release the same in favour of the respondent no.1.
21. As the accident occurred in June 2011, I deem it appropriate that the entire compensation that is determined in terms of the present order be released in favour of the respondent no.1. In case, any excess amount stands deposited by the appellant, the same shall be released in favour of the appellant along with the interest accrued on such portion of excess.
22. The statutory deposit made by the appellant shall also be released in its favour.
23. The parties are directed to appear before the learned Tribunal on 24th July, 2023.
24. The appeal is disposed of with the above directions. The parties shall bear their own costs.
NAVIN CHAWLA, J JULY 10, 2023/rv/AS