Delhi High Court
United India Insurance Co. Ltd. vs Sonam Choden Tamang & Ors. on 24 February, 2014
Author: Suresh Kait
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24th February, 2014
+ MAC.APP. 144/2013
UNITED INDIA INSURANCE CO. LTD. ..... Appellant
Through: Mr. L.K. Tyagi, Adv.
Versus
SONAM CHODEN TAMANG & ORS. ..... Respondents
Through: Ms. Saroj Bidawat, Adv. for R3/DTC.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant appeal has been preferred against the impugned award
dated 05.12.2012, whereby Ld. Tribunal has awarded compensation for a
sum of Rs.24,22,065/- with interest @ 7.5% per annum from the date of
filing of the Claim Petition till realization of the amount.
2. Ld. Counsel appearing on behalf of the appellant has argued the
instant appeal on the sole ground that the injured Sonam Choden Tamang
was 38 years of age on the date of accident, i.e., 03.10.2010 and received
30% visual disability in her right eye, however, Ld. Tribunal has assessed
50% functional disability while granting the compensation.
3. Ld. Counsel appearing on behalf of the appellant has raised the issue
that even as per column 26 of Part-II, Schedule-I of Workmen's
Compensation Act, 1923, the loss of earning capacity of the loss of vision of
one eye is 30%.
4. Ld. Counsel has relied upon a case of Raj Kumar v. Ajay Kumar and
Anr. (2011)1SCC343, wherein disability has been assessed as 50% of the
disability received.
5. Undisputedly, the functional disability has to be seen by considering
the affect of the injuries on the avocation. In the present case, as per MLC
of Dr. Deen Dayal Upadhyay Hospital, the injured was intubated and sent to
Neurosurgery Department on Oxygen support. Thereafter, she was shifted
to Ayushman Hospital, where she remained admitted from 03.10.2010 to
19.10.2010. Thereafter, she was admitted in the Indraprastha Apollo
Hospital on 19.10.2010, where she remained admitted till 20.11.2010.
6. On perusal of the trial court record, it is revealed as per the diagnosis
note, at the time of discharge, there was head injury with multiple left fronto
tempora occipital contusion and fronto parietal temporal acute subdural
hematoma along with left PCA territory infarct. She was suffering from
right optic nerve injury, lupus nephritis and right gluteal abscess.
7. In the history of discharge summary of Apollo Hospital Ex.PW5/1, it
is noted that she remained unconscious for two days in Ayushman Hospital
and due to breathing difficulty she was put on ventilator support and was
gradually weaned off for ventilator support and extubated.
8. During her hospitalization, she had developed right side gluetal
abscess and she underwent incision and drainage under general anaesthesia,
which improved after surgery.
9. The injured was again admitted in Indraprastha Hospital on
02.12.2010 in a day-care surgery when she underwent debridement and
suturing of left buttock wound.
10. In the present case, the injuries as discussed above, received by the
respondent / claimant are not only the injuries on the eye, however, there are
other injuries also. Therefore, the disability as shown in the Workmen's
Compensation cannot be applied in the present case.
11. As per the evidence on record, the injured / claimant had done one
year Trade Certificate Course in House Keeping during the 1994-1995
session from Food Craft Institute, S/B, Ministry of Tourism, Govt. of India,
Govt. of West Bengal. It has also come in the evidence that the injured had
worked with Taj Hotels for 6-7 years and thereafter, she worked in Dubai for
five years. She was working with present employer, i.e., Nirvana Patio
Unitech Pvt. Ltd. for 5-6 months before the date of accident. Her
designation was Executive Guest Relation-cum-Front Office.
Unfortunately, the injured had suffered 30% visual disability in her right eye
apart from the other injuries received in the accident.
12. It cannot be denied that for the post of Executive Guest Relation-cum-
Front Office, no company would employ her when she has no vision in her
right eye.
13. Accordingly, Ld. Tribunal relied upon the case of Gulam Nabi Bhat
v. Mohd. Arman Ami & Ors. decided on 07.08.2012 in MAC.Appeal No.
335/2009 passed by this court while relying upon the dictum of Apex Court
in the case of Nizam's Institute of Medical Sciences v. Prasnath S.
Dhanaka & Ors. 2009 (6) SCC 1, wherein it is held as under:
"At the same time we often find that a person injured in an
accident leaves his family in greater distress vis a vis a
family in a case of death. In the latter case, the initial shock
gives way to a feeling of resignation and acceptance; and in
time, compels the family to move on. The case of an injured
and disabled person is, however, more pitiable and the
feeling of hurt, helplessness, despair and often destitution
enures every day. The support that is needed by a severely
handicapped person comes at an enormous price, physical,
financial and emotional, not only on the victim but even
moreso on his family and attendants and the stress saps
their energy and destroys their equanimity".
14. Considering the facts and circumstances of the case, I find no merit in
the instant appeal. Same is accordingly dismissed.
15. The statutory amount be released in favour of the appellant and
balance compensation amount with up-to-date interest accrued thereon be
released in favour of the respondent no. 1 / claimant on taking necessary
steps by her.
SURESH KAIT, J
FEBRUARY 24, 2014
Jg/sb
