Bharti Axa General Insurance Co ... vs Santosh Kumar & Ors
2019 Latest Caselaw 3286 Del

$~30
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                  Decided on: 18.07.2019

+               MAC.APP. 226/2019 & CM APPL. 6233/2019
       BHARTI AXA GENERAL INSURACE CO LTD                    ..... Appellant
                          Through:     Mr. Ved Vyas Tripathi, Advocate.

                          Versus

       SANTOSH KUMAR & ORS                               ..... Respondents
                   Through:            Mr. Vimal Kumar, Advocate.

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J. (Oral)

1. This appeal impugns the award of compensation on the ground that 45% physical disability has been taken as 60% functional disability. The claimant had testified that he was a painter by vocation.

2. The learned MACT considered the claimant to be a skilled worker. The injury caused to the claimant was to his head and other multiple injuries in his leg and hand. He had been advised for physiotherapy and advised to visit the hospital after two months. He did not file any record of follow up treatment.

3. Nevertheless, 45% physical disability was considered as disability for the whole body. In other words, the injured-claimant would not be able to

move his hands and legs at all. The claimant had contended that since he has suffered 45% physical disability, he is entitled to 100% functional disability as he is unable to carry out the work which he was doing earlier.

4. The learned Tribunal referred to the dicta of the Supreme Court in Raj Kumar vs. Ajay Kumar and Another 2011 1 SCC 343 decided on 18.10.2010, apropos functional disability and examined the evidence on records as under:-

"...

(v) As per disability certificate dated 18.09.2018, petitioner sustained permanent physical impairment to the extent of 45% in relation to his whole body. As already stated that petitioner was working as a painter. Since, he sustained 45% permanent disability in relation to his whole body, it would not be feasible for him to perform the job of painter, but certainly, he can perform the job of assistant of a painter. Though no specific evidence has been led by the petitioner to prove the loss of earning capacity due to disability caused to him, but from the above stated facts, it can safely be culled out that petitioner must have suffered loss of earning capacity at least to the extent of 60% of his income. Accordingly, loss of earning capacity is assessed at 60%."

5. When half of the human body becomes disfunctional i.e. by debilitation of both the upper and lower limbs, it would significantly affect and reduce the functional ability of the said disabled person. In the circumstances, for the learned Tribunal to assess the functional disability to the extent of 60% is a fair assessment, in the facts of the present case.

6. In view of the above, the Court finds no reason to interfere with the impugned order. The appeal is without merits and is accordingly dismissed. The pending application also stands dismissed.

7. The awarded amount which has been deposited by the Insurance Company, alongwith interest accrued thereon, shall be released to the beneficiaries of the Award in terms of the scheme of disbursement specified therein.

8. The statutory amount of Rs.25,000/-, alongwith interest accrued thereon, be deposited in the 'AASRA' fund.

NAJMI WAZIRI, J.

JULY 18, 2019 sb