Delhi High Court
New India Assurance Company Ltd. vs Shakuntala Mehta And Ors. on 19 March, 2014
Author: Suresh Kait
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19th March, 2014
+ MAC.APP. 547/2011
NEW INDIA ASSURANCE COMPANY LTD. ..... Appellant
Represented by: Ms. Meenakshi Midha, Adv.
Versus
SHAKUNTALA MEHTA AND ORS. ..... Respondents
Represented by: Mr. Sanjay Kumar and Mr. R.L.
Arora, Advs. for R1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
+ MAC.APP. 547/2011
1. The present appeal has been preferred against the impugned award
dated 30.03.2011, whereby Ld. Tribunal has awarded compensation for an
amount of Rs.4,74,490/- with interest @ 7.5% per annum from the date of
filing of the claim petition till realization of the amount.
2. Ms. Meenakshi Midha, Ld. Counsel appearing on behalf of the
appellant submits that the injured was 62 years of age on the date of
accident. She was housewife. She received 45% disability in relation to
right lower limb, however, Ld. Tribunal has assessed 45% functional
disability qua the whole body, which is contrary to the settled law.
3. To strengthen her arguments, ld. Counsel has relied upon a case of
Raj Kumar v. Ajay Kumar and Anr. (2011)1SCC343 wherein it is held as
under:
"The Tribunal has proceeded on the basis that the permanent
disability of the injured-claimant was 45% and the loss of his
future earning capacity was also 45%. The Tribunal
overlooked the fact that the disability certificate referred to
45% disability with reference to left lower limb and not in
regard to the entire body. The said extent of permanent
disability of the limb could not be considered to be the
functional disability of the body nor could it be assumed to
result in a corresponding extent of loss of earning capacity, as
the disability would not have prevented him from carrying on
his avocation as a cheese vendor, though it might impede in
his smooth functioning. Normally, the absence of clear and
sufficient evidence would have necessitated remand of the case
for further evidence on this aspect. However, instead of
remanding the matter for a finding on this issue, at this
distance of time after nearly two decades, on the facts and
circumstances, to do complete justice, we propose to assess the
permanent functional disability of the body as 25% and the
loss of future earning capacity as 20%."
4. Also relied upon a case of Jatinder Kaur Riar @ Nina Riar v. Jyoti
Mittal and Ors. decided by this in FAO. No.260/1998 on 04.05.2009,
wherein it is held as under:
"As regards loss of income, it is crystal clear that the
appellant is a housewife. However, it does not mean that her
utility as a housewife are to be under estimated. She
performed her duties towards her family. She is a non earning
person and taking into account the same, I consider that she
can be given compensation taking into account notional
income. The notional income is Rs.15,000/- p.a. Or Rs.1250/-
p.m. Considering the injuries suffered by the appellant I take
that she could not have performed her work for six months. I
grant a sum of RS.7500/- in this respect."
5. Ld. Counsel submits that the Ld. Tribunal ought to have considered
the functional disability of the injured as 23%, however, erred in considering
the same as 45% in relation to whole body.
6. On the other hand, Mr. Sanjay Kumar, Ld. Counsel appearing on
behalf of the respondent no. 1 / claimant submits that the injured was 62
years of age on the date of accident, i.e., 10.04.2007. She was a housewife.
Due to the injuries received in the accident, she has become totally
immovable and confined to wheelchair, thus unable to do any household
work.
7. Ld. Counsel further submits that Ld. Tribunal ought to have
considered 100% functional disability, however, keeping the injuries
received by the respondent no. 1 / claimant into view, Ld. Tribunal has
considered only 45% functional disability to the whole body.
8. I have heard Ld. Counsels for the parties.
9. It is settled law that Tribunal or the court has to see the permanent
disability and if so, the extent of such permanent disability. If there is no
permanent disability, then there is no question of proceeding further and
determining the loss of future earning capacity. On the other hand, if there
is permanent disability, the affect of the same on the avocation of a person
has to be considered.
10. In the present case, the injured was 62 years of age on the date of
accident, i.e., 10.04.2007. Her right lower limb was crushed. It was
restructured, however, till date, she is not able to stand or move. She is
confined to wheelchair. In fact, she is not able to do any household work,
thus has become 100% disabled.
11. Keeping in view the injuries received by the injured in the accident
and her age, I do not find any discrepancy in the order passed by the Ld.
Tribunal.
12. Accordingly, instant appeal is dismissed.
13. Statutory amount be released in favour of the appellant and the
balance compensation amount be released in favour of respondent no. 1 /
claimant in terms of award dated 30.03.2011 on taking steps by her.
CM. NO. 11314/2011
With the dismissal of the instant appeal, instant application has
become infructuous and dismissed as such.
SURESH KAIT, J.
MARCH 19, 2014
jg
