MAC.APP./101/2010 of PURAN LAL Vs PRAVEEN KANSAL & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ MAC.APP. 101/2010

Decided on: 19[th] January, 2012

PURAN LAL ..... Appellant

Through: Mr. Manoj Ranjan Sinha, Adv. with Mr. Vivekanand Rana, Adv. Mr. Vivekanand Rana, Adv.

versus

PRAVEEN KANSAL & ORS ..... Respondent

Through: Mr. A.K. De, Adv. with Mr. Rajesh Dwivedi, Adv. Mr. Rajesh Dwivedi, Adv.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

J U M N T

G. P. MITTAL, J. (ORAL)

CM APPL.3315/2010 (O.41 Rule 27 CPC) in MAC.APP. 101/2010

1.The Appellant has filed this application for additional evidence. He wants to prove on record the Matriculation certificate/ Intermediate Certificate issued by the Board of High School and Intermediate Education, U.P. and Diploma in Electronics with Specialization in Communication System. The same is not disputed and is taken on record. He wants to prove on record the Matriculation certificate/ Intermediate Certificate issued by the Board of High School and Intermediate Education, U.P. and Diploma in Electronics with Specialization in Communication System. The same is not disputed and is taken on record.

2.The application is allowed.

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3.The Appellant seeks enhancement of compensation of

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`2,91,396/- awarded by the Motor Accident Claims Tribunal, (the Tribunal) by the impugned judgment in respect of the injuries suffered by him in an accident which took place on 09.07.2005.

4.The Appellant suffered 41% permanent disability in relation to his left upper limb. The overall assessment of the permanent disability with respect to the whole body was opined by PW-3 Dr. Harish Mansukhani as 16% to 17%. The Tribunal awarded the overall compensation of `2,91,396/- under various heads which are extracted hereunder:- his left upper limb. The overall assessment of the permanent disability with respect to the whole body was opined by PW-3 Dr. Harish Mansukhani as 16% to 17%. The Tribunal awarded the overall compensation of `2,91,396/- under various heads which are extracted hereunder:-

5.It is argued by the learned counsel for the Appellant that he (the Appellant) was an Intermediate having technical qualification i.e. Diploma in Electronics with Specialization in Appellant) was an Intermediate having technical qualification i.e. Diploma in Electronics with Specialization in

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Communication System. Loss of his earning capacity was assessed on the basis that he was unskilled worker.

6.Learned counsel urges that the diploma issued by the Board of Technical Education, U.P., though the same could not be filed before the Tribunal, clearly shows that the Appellant ought to have been treated as skilled worker. It is contended that the Tribunal erred in taking the overall disability in respect of the whole body as 17%. Technical Education, U.P., though the same could not be filed before the Tribunal, clearly shows that the Appellant ought to have been treated as skilled worker. It is contended that the Tribunal erred in taking the overall disability in respect of the whole body as 17%.

7.Per contra, the counsel for the Insurance Company urges that no evidence was produced on record to show that the permanent disability suffered by the Appellant affected the loss of his earning capacity. evidence was produced on record to show that the permanent disability suffered by the Appellant affected the loss of his earning capacity.

8.It is well settled that to claim compensation for permanent disability, claimant is required to prove that the permanent disability affected his functional capacity to earn. In other words, the earning capacity must be proved to have been affected. (Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343). disability, claimant is required to prove that the permanent disability affected his functional capacity to earn. In other words, the earning capacity must be proved to have been affected. (Raj Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343).

9.I have been taken through the Affidavit Ex.PW-1/1 filed by the Appellant. There was not even whisper that because of the permanent disability, he suffered loss of earning capacity for his whole life. On the other hand, the record points to the contrary. The accident took place on 09.07.2005. In the next year the Appellant returned the income of `95,000/-, for the year 2007-Appellant. There was not even whisper that because of the permanent disability, he suffered loss of earning capacity for his whole life. On the other hand, the record points to the contrary. The accident took place on 09.07.2005. In the next year the Appellant returned the income of `95,000/-, for the year 2007-

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08, it increased to ` 97,155/- and for the year 2008-2009, it further increased to `1,38,615/-. It is, therefore, apparent that the earning capacity was not affected on account of the permanent disability suffered by the Appellant. The compensation of ` 1,39,760/- was really towards the loss of amenities in life.

10.In the circumstances, there is no ground to interfere with the impugned judgment; the same is accordingly dismissed. No costs. impugned judgment; the same is accordingly dismissed. No costs.

(G.P. MITTAL) JUDGE

JANUARY 19, 2012 vk

MAC APP 101/2010