Delhi High Court
Sandeep Rathi vs Cholamandalam Ms General ... on 26 February, 2020
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26.02.2020
+ MAC.APP. 105/2020
SANDEEP RATHI ..... Appellant
Through: Mr. Arpit Srivastava, Adv.
versus
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD &
ORS ..... Respondents
Through: Mr. Pankaj Gupta, Adv. for Ms.
Suman Bagga, Adv. for R-1.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
CM APPL. 7701/2020 & CM APPL. 7702/2020 (Exemptions)
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
CM APPL. 7700/2020 (for delay)
3. For the reasons mentioned in the application, it is allowed.
4. The delay in filing the appeal is condoned.
5. The application stands disposed-off.
MAC.APP. 105/2020
6. Issue notice.
7. The learned counsel named above accepts notice on behalf of the
insurance company.
8. At joint request, the appeal is taken up for disposal.
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:04.03.2020
15:00:38
9. This appeal impugns the award of the compensation dated 09.10.2019
passed by the learned MACT in MACP No. 77467/2016, inasmuch as no
compensation has been granted to the injured towards 'loss of future
prospects' which the claimant would be entitled to @ 40% in terms of the
dicta of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi &
Ors (2017) 16 SCC 680, since he was self-employed and was under the age
of 40 years. The aforesaid contention is valid. Accordingly, an addition of
40% is hereby granted to the claimant towards 'loss of future prospects'.
10. The second contention is that against 63% permanent physical
disability apropos his right upper and lower limb, functional disability of
32% has been assessed in the impugned order. The Court would note that for
a shopkeeper, the functional disability would certainly be more than 32%.
11. The learned counsel for the respondent submits that there is no proof
that the claimant cannot discharge his functions as a shopkeeper or to serve
his customers effectively. While assessing 32% disability apropos the whole
body, the impugned order has reasoned as under:-
"24. To prove that the petitioner sustained permanent physical
disability, he examined PW2/Dr.Naresh Chandra,
Specialist/HOD/GGS Hospital, who examined him and had
assessed his physical disability being one of the Members of
the Medical Board. PW2/Dr.Naresh Chandra testified that the
Medical Board had issued a Permanent Disability Certificate
(Ex.PW2/A) in respect of petitioner, as per which, petitioner
was found to be suffering from permanent physical disability
of 63% in relation to his right upper and lower limbs.
25. Considering the facts and circumstances of the present
case, the functional disability of the petitioner in the present
case is assessed as 32% in relation to his whole body".
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:04.03.2020
15:00:38
12. This Court is of the view that for a shopkeeper physical agility is
requisite, for ably dealing with and serving customers, especially for
accessing items kept on a shelf or at a height above the shoulders or even on
lower shelves which would require bending down. But all these movements
would be severely restricted and curtailed in a person who has suffered
permanent disability upto 63% in his upper and lower limbs on one side of
the body. There would be a corresponding functional disability in serving
the customers. Therefore, the functional disability in this particular case
should be considered as proportionate to the permanent physical disability.
13. In view of the above, the functional disability of the injured apropos
32% permanent physical disability in right upper and lower limb shall be
assessed at 63%. Accordingly, the amounts payable to the claimants
towards 'loss of earning' on account of disability shall be calculated as
under:-
Rs. 10,478/-(monthly income) x 63/100 (physical disability)x12 (months) x
18 (multiplier) x 140/100 (40% future prospects) = Rs. 19,96,185/-
14. Let the enhanced amount alongwith interest @ 9% p.a. from the date
of filing of the claim petition till its realization, be deposited by the insurer
before the learned Tribunal, within three weeks from the date of receipt of a
copy of this order, to be released to the beneficiary of the Award in terms of
the scheme of disbursement specified therein.
15. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J
FEBRUARY 26, 2020
RW
Signature Not Verified
Digitally signed By:KAMLESH
KUMAR
Signing Date:04.03.2020
15:00:38
