Delhi High Court
Oriental Insurance Co Ltd. vs Kishore Kumar & Ors on 26 September, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26.09.2019
+ MAC.APP. 438/2014
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
KISHORE KUMAR & ORS ..... Respondents
Through: Mr. Partap Singh, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. The learned counsel for the appellant submits that according to the
disability certificate, respondent no.1 had suffered enucleation of the right
eye with 30% permanent visual disability, therefore, the functional disability
should have been much less than 30% in relation to the whole body and in
any case it should not have been considered at 50%, as the impugned order
did.
2. The Court is of the view that for assessment of functional disability,
the nature of the injury and the extent of disability has to be seen. In the
present case, the victim was a driver of a commercial vehicle. The appellant
admits that the right eye of the claimant was enucleated i.e. the eye ball was
removed. Photograph of the injured has been shown to the Court and to the
learned counsel for the appellant. The identity of and evident injury to the
injured is not disputed. The photograph is taken on record and is reproduced
as under:
3. The extent of injury to his eyesight is overwhelming; now the injured
will never be able to obtain a license to drive a commercial vehicle. His
ineligibility in this regard has been duly proven by way of a statement of
PW-2-Sh. Sant Ram, Nodal Licensing Officer, Janakpuri, who had stated
that a "one-eyed individual is not issued any driving license, be it private or
commercial". In effect, the functional disability, apropos his known source
of income would be absolute. However, keeping in mind that all his five
senses and his four limbs and one eye are otherwise intact, therefore, his
functional disability, instead of 100% it will be deemed to be 90%. There
shall be an enhancement in his functional disability from 50% to 90%.
4. The Court would note that compensation towards „loss of future
prospects‟ has been granted to the claimant @ 50%. He was 40 years of
age, therefore, in terms of National Insurance Co. Ltd. v. Pranay Sethi &
Ors (2017) 16 SCC 680, the same should have been 40%. It is so ordered.
5. A fresh computation apropos the enhanced amount in terms of the
above shall be supplied to the claimant by the insurance company within
two weeks of receipt of copy of this order and the requisite amount shall be
deposited before the learned Tribunal, within three weeks of the receipt of
copy of this order, the deposited compensation shall be released to the
beneficiary of the award in terms of the scheme of disbursement specified
therein.
6. The appeal is partly allowed. The statutory amount, along with
interest accrued thereon, be returned to the appellant.
NAJMI WAZIRI, J
SEPTEMBER 26, 2019/kk
