Madhya Pradesh High Court
Smt. Jyoti Mishra vs Ashok Singh @ Bangali on 9 November, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 9th OF NOVEMBER, 2022
MISC. APPEAL No. 362 of 2019
BETWEEN:-
ORIENTAL INSURANCE COMPANY THR.
DIVISIONAL MANAGER TIRD PARY CLAIM HUB
11 -C INDRAPURI (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VINEET KUMAR PANDEY, ADVOCATE FOR INSURANCE
COMPANY)
AND
1. SMT. JYOTI MISHRA W/O SHRI AKSHAY
TIWARI, AGED ABOUT 33 YEARS, R/O QUATER
NO EWS 709 KOTRA SULTANABAD (MADHYA
PRADESH)
2. ASHOK SINGH @ BENGALI S/O CHAMEL SINGH
OCCUPATION: DRIVER OF BUS NO.
JK/02/AG/8466 R/O VILLGE MARIK, TAHSIL
KATRA JAMMU, DISTT. RIYASI KATRA (JAMMU
& KASHMIR)
3. DOMESH GUPTA S/O RAMPAL GUPTA
OCCUPATION: DRIVER OF BUS NO.
JK/02/AG/8466 R/O 432, SATWARI, CANTT,
JAMMU KASHMIR (JAMMU & KASHMIR)
.....RESPONDENTS
(BY SHRI NITIN GUPTA, ADVOCATE)
MISC. APPEAL No. 5709 of 2019
BETWEEN:-
SMT. JYOTI MISHRA W/O SHRI AKSHAY
TIWARI, AGED ABOUT 33 YEARS, EWS 709
Signature Not Verified
SAN
KOTRA SULTANABAD (MADHYA PRADESH)
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.10 10:38:49 IST .....PETITIONER
(BY SHRI NITIN GUPTA, ADVOCATE)
2
AND
1. ASHOK SINGH @ BANGALI S/O CHAMEL SINGH
MARIC TEH. KATRA JAMMU DISTT. RIYASI
KATRA (JAMMU & KASHMIR)
2. DOMESH GUPTA S/O RAMPAL GUPTA R/O 432
SATWARI CANT JAMMU (JAMMU & KASHMIR)
3. THE ORIENTAL INSURANCE CO.LTD THROUGH
DIVISIONAL MANAGER 3RD PARTY CLAIM
HUB 11 C INDRAPURI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VINEET KUMAR PANDEY, ADVOCATE FOR INSURANCE
COMPANY)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These appeals are filed respectively by the Insurance Company and the Claimant being aggrieved of award dated 29.09.2018 passed by 19th Additional Motor Accident Claims Tribunal, Bhopal in Claim Case No.1164/2014 on the ground that as per the insurance company deduction should have been made from the admitted income of the claimant while making computation.
Shri Nitin Gupta submits that as per the Schedule enclosed along with the Employees' Compensation Act, 1923 for amputation of a hand below shoulder, 80% disability should have been considered.
After hearing learned counsel for the parties, grounds raised by the learned counsel for the Insurance Company are not made out, deductions are to b e made in case of death. Hon'ble Supreme Court in Sarla Verma & Ors vs Delhi Transport Corp.& Anr, (2009) 6 SCC 121 in para 30 has considered the Signature Not Verified aspect of deduction and has held that deduction is to be made towards personal SAN Digitally signed by MOHD TABISH KHAN and living expenses of a deceased. Thus, it is evident that no deduction is Date: 2022.11.10 10:38:49 IST required to be made in case claimant himself/herself is seeking compensation on 3 account of loss of earning capacity.
Thus, appeal filed by the insurance company on the ground that learned Tribunal should have permitted deduction is not made out. Accordingly, appeal filed by the insurance company fails and is hereby dismissed.
As far as, appeal filed by the claimant is concerned, Hon'ble Supreme Court in case of Sri Chanappa Muchalagoda Vs. Divisional Manager, New India Insurance Company Limited, has held that aspect of functional disability is to be assessed and if loss of functional disability is more than cent percent, functional disability should be considered.
I n the present case, admittedly, claimant was working as a Chartered Accountant. Loss of left hand does not mean that she has lost all her resources to earn her livelihood. Therefore, computation of disability at 40% cannot be said to be arbitrary or illegal. Thus, the ground on which appeal is filed by the claimant is also not made out and accordingly, appeal filed by the claimant deserves to fail and is dismissed.
Accordingly, both these appeals fail and are dismissed. Record of the Tribunal be sent back.
(VIVEK AGARWAL) JUDGE Tabish Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.11.10 10:38:49 IST