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The National Insurance Co. Ltd. vs Sanjay Kumar Dass @ Sanjay Kumar Singh & ... on 22 January, 2024
cites
Section 4A in The Code of Civil Procedure, 1908 [Entire Act]
Ramprasad Balmiki vs Anil Kumar Jain & Ors on 1 October, 2008
The Supreme Court did not approve the decision of
the Tribunal and the High Court limiting the loss of earning capacity
to 50% merely because the victim was a cart puller and the
observations referred to above in this judgment in the case of Raj
Kumar (supra)were cited with approval and the functional disability
was held to be as high as 100% but in no case less than 90%. What is
to be underlined is that it was observed by the Supreme Court that
―the estimation of functional disability and its effect on nature of work
62001 ACJ 2105
7
2002 ACJ 1392
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being performed by the victim suffering from such disability may be
different and affect two different persons in different ways". It was
also observed that ―while estimating functional disability, the Court
should refrain from considering hypothetical factors like possibility of
change of vocation or adoption of another means of livelihood‖. It
was held that ―scaling down of compensation could only be done when
some tangible evidence is on the record and not otherwise‖.
State Of Gujarat vs Rajendra Khodabhai Deshdia And Ors. on 13 March, 1990
―7. The appellant is present in person in view of the
directions of a learned Single Judge of this Court dated
15.12.2016. It is seen that the appellant is walking with a
stick and the left lower limb is in such a condition that
obviously appellant will be no longer be able to perform
the duty of a driver. Though, the medical certificate may
only call the disability as 23% disability, really the
disability is 100% because appellant cannot perform the
duty of a driver, and this is so held by the Supreme Court
in the case of Pratap Narain Singh Deo (supra) referred to
above.‖ {bold portions emphasized}
Rayapati Venkateswara Rao vs Mantai Sambasiva Rao And Anr. on 30 November, 2000
This Court relying on the decision in
the case of State of Gujarat v. Rajendra Khodabhai Deshdia&
Anr.5, Pratap Narain Singh Deo (supra), Rayapati Venkateswar
51991 ACJ 638
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Rao v. Mantai Sambasiva Rao & Anr.6and G. Anjaneyulu v. Alla
Seshi Reddy & Anr.7,upheld the decision by the learned
Commissioner to the effect that ―the operation of right leg had been
impaired that would render the workman not in a position to drive
any heavy vehicle like truck/bus and therefore, functional disability
has been correctly assessed @ 100%".
National Insurance Company Ltd vs Hari Om & Ors on 20 January, 2011
Keeping this Certificate in mind, the impugned order relied
upon the judgment of this Court in National Insurance Co. v. Hari
Om, 2011 LLR-428 that loss of earning capacity of the driver was
assessed as 100% even though his physical disability was only
20%-25%.
National Insurance Co. Ltd. vs Shri Ranjit Singh @ Rana & Anr. on 26 November, 2009
Similarly, in National Insurance Co. Ltd. v. Shri Ranjit
Singh@ Rana FAO No. 246/2007 delivered on 26.11.2009 again
considered the physical disability of 15% as 100% functional
disability. In the present case, however, the disability is 31% in the
right lower limb which obviously would compromise safe driving
of any motor vehicle. The employment of a driver suffering
from such a severe physical disability is a too remote, indeed
almost negligible. Therefore, would have to be treated as a
100% functional disability entitling the claimant to the award
which has been granted."
New India Assurance Co Ltd vs Pushkin Tiwari & Anr on 15 January, 2021
Moharman & Anr.; FAO 21/2021 titled as New India Assurance
Co. Ltd. Vs. Pushkin Tiwari & Anr.; and, FAO 305/2022 titled
New India Assurance Co. Ltd. v. Furkan @ Mohd. Furkan &
Anr., besides FAO 161/2021 titled New India Assurance Co. Ltd. v.
Sh. Waseem & Anr., wherein the same substantial question of law
has been raised thereby challenging the impugned judgment-cum-
award passed by learned Commissioner, Employees' Compensation in
awarding compensation holding 100% loss of earning capacity for the
injuries sustained in the accident. The first three of the above noted
FAOs have been decided vide a common judgment and this Court has
dealt with the entire chronology of the case-law cited at the Bar in the
common judgment in FAOs 17/2021, 21/2021 and 305/2022.
Therefore, this Court would do no further than to ‗cut and paste' the
relevant portions of the discussion on the proposition of law in the
present matter, which go as under:
New India Assurance Co. Ltd vs Furkan @ Mohd. Furkan & Anr on 30 November, 2022
In the cited case of Mohd.
Nasir (supra), the claimant/workman was working as a cleaner on a
truck, which met with an accident and he suffered permanent partial
disability in the nature of injuries to his right leg. The learned
Commissioner opined that although workman had suffered 50%
disability, the loss of his earning capacity was 100%. The cited case
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was, in fact, a common decision rendered on three other SLPs. The
second case involved an injured casual laborer employed for loading
and unloading and although his physical disability was assessed at
40%, the functional loss of earning capacity was assessed to be 80%.
The third case also involved two victims who were engaged for
loading and unloading of goods, wherein physical disability was
assessed at 40% for each, but the loss of earning capacity was assessed
at 80% and 100% respectively.The fourth case was one where the
victim was a driver of the offending vehicle aged about 65 years, who
was a practicing advocate, and his permanent disability was assessed
at 50% and loss of earning capacity was assessed at 50%.
New India Assurance Company Limited vs Sh. Waseem & Anr on 22 July, 2021
Moharman & Anr.; FAO 21/2021 titled as New India Assurance
Co. Ltd. Vs. Pushkin Tiwari & Anr.; and, FAO 305/2022 titled
New India Assurance Co. Ltd. v. Furkan @ Mohd. Furkan &
Anr., besides FAO 161/2021 titled New India Assurance Co. Ltd. v.
Sh. Waseem & Anr., wherein the same substantial question of law
has been raised thereby challenging the impugned judgment-cum-
award passed by learned Commissioner, Employees' Compensation in
awarding compensation holding 100% loss of earning capacity for the
injuries sustained in the accident. The first three of the above noted
FAOs have been decided vide a common judgment and this Court has
dealt with the entire chronology of the case-law cited at the Bar in the
common judgment in FAOs 17/2021, 21/2021 and 305/2022.
Therefore, this Court would do no further than to ‗cut and paste' the
relevant portions of the discussion on the proposition of law in the
present matter, which go as under:
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