Supreme Court: Burden of proof in motor accident claim petition is on respondent to show that after accident victim is earning money by doing another work

 In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the Appellant's earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the Appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the Appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the Appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. {Para 10}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 237 of 2012.

Decided On: 10.01.2012

Mohan Soni Vs. Ram Avtar Tomar and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Author: Aftab Alam, J.

Citation: AIR 2012 SUPREME COURT 782, 2012 (2) SCC 267,MANU/SC/0011/2012.

Read full Judgment here: Click here.

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Supreme Court: Three steps inquiry necessary for ascertaining functional disability due to motor accident

 Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. {Para 13}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 237 of 2012.

Decided On: 10.01.2012

Mohan Soni Vs. Ram Avtar Tomar and Ors.

Hon'ble Judges/Coram:

Aftab Alam and R.M. Lodha, JJ.

Author: Aftab Alam, J.

Citation: AIR 2012 SUPREME COURT 782, 2012 (2) SCC 267,MANU/SC/0011/2012.

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Whether an employee should get alternative work and back wages if he acquires a physical disability during his service?

 Further, this arbitrary imposition under Clause 11 is in the teeth of the provisos to Sub Section (4) of Section 20 of the 2016 Act which read as under :

“Provided that, if an employee after acquiring disability is

not suitable for the post he was holding, shall be shifted to

some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the

employee against any post, he may be kept on a

supernumerary post until a suitable post is available or he

attains the age of superannuation, whichever is earlier.”

{Para 17}

18. The above provisos mandate that the Petitioners ought to be shifted to an alternative post with MSRTC with the same pay scale and service benefits and if it is not possible for MSRTC to adjust the Petitioners against any post immediately, they have to be kept on supernumerary posts until suitable posts are available or they attain the age of superannuation, whichever is earlier. This is a mandate under the 2016 Act and a statutory right granted to the Petitioners. This right cannot be violated by Clause 11 of the Impugned Circular. MSRTC has no right and is in fact prohibited from treating the intervening period between the medical examination and a decision thereon as leave without pay. The very idea of restoring an employee to a position with the same pay scale and service benefits which he or she held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the action of termination taken by the employer.

19.  In our opinion, the Petitioners’ reinstatement by MSRTC entitles the Petitioners to claim back wages in their entirety. The denial of back wages to the Petitioners who have suffered due

to their disability would amount to indirectly punishing the Petitioners concerned and rewarding MSRTC by relieving them of their obligation to pay back wages. This would be wholly inequitable and unjust. This would be in contravention of the 2016 Act, as also in contravention of the Constitution of India. As a result, we are of the considered opinion that Clause 11 of the Impugned Circular is ultra vires the 2016 Act, as also violative of Article 14 of the Constitution of India. Therefore, we hereby quash and set-aside Clause 11 of the Impugned Circular.

20. Keeping in line with the mandate of Section 20 of the 2016 Act, we order and direct MSRTC to provide each one of the Petitioners with alternative posts having the same pay scale and service benefits as their earlier position.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 9762 OF 2019

Vikas Khanderao Keng, Vs The State of Maharashtra

CORAM: S.J. KATHAWALLA &

R.I.CHAGLA, JJ.

Dated : 16th JULY, 2020

Citation: 2021(2) MHLJ 131

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Whether an employer can terminate the services of the employee if he acquires a disability during his service?

 The proviso to section 47 of The Disabilities Act 1995 referred earlier says that if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. The certificate of disability issued by the board in the Solapur hospital as referred earlier shows that petitioner suffered 10% physical disability. Considering said disability and the fact that he was unable to work as a driver and as suggested by the Civil Surgeon, Osmanabad and the board at Solapur he was required to be given other posts or other work in the light of proviso to section 47 of The Disabilities Act, 1995, but instead respondent No. 3 terminated services of the petitioner by the impugned order without considering his request to provide him alternate work made in his application (Exh. 'B') dated 08-03-2010 and without hearing him or without any enquiry. Thus, termination of the petitioner was without any fault on his part. Therefore, we hold that the impugned order is not sustainable being in violation of section 47 of The Disabilities Act, 1995. Thus, as the termination of the petitioner is illegal and is liable to be set aside, he is entitled to financial/monetary benefits of his termination period i.e. from the date of his termination till the date of his retirement on superannuation as well as retiral benefits including pension.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6939 of 2017

Decided On: 01.10.2019

Shaikh Salim Shaikh Amir Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh and S.M. Gavhane, JJ.

Citation: MANU/MH/3149/2019

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Bombay HC: Employee should not be removed from employment if he acquires a disability during his service

The Supreme Court in the case of Kunal Singh vs.

Union of India (supra) was concerned with a case where an

employee suffered from 'locomotor disability' falling within

Section 2(i)(v), but did not have a certificate of a person with

disability under Section 2(t). The Court in that case succinctly

explained the difference between the expressions “disability”

under Section 2 (i) and “person with disability” under Section

2(t), particularly in the context of Section 47 in paragraph Nos.7,

9 and 10 of the judgment, which reads thus :-

“7. From the facts, which are not in dispute, it is clear that

the disability suffered by the appellant is covered by Section

2(i)(v)read with Section 2(o) of the Act. It is also not in

dispute that this disability was acquired by the appellant

during his service. Under Section 2 "disability" and "person

with disability" are separately defined and they are distinct.

We may also notice some provisions in Chapter VI of the Act

relating to employment. Section 32 deals with identification

of posts which can be reserved for persons with disabilities.

Section 33 speaks of reservation of such percentage of

vacancies not less than 3%for persons or class of persons

with disability of which 1% each shall be reserved for

persons suffering from (i) blindness or low vision; (ii) hearing

impairment and (iii) locomotor disability or cerebral palsy.

Section 38 requires the appropriate Governments and local

authorities to formulate schemes for ensuring employment

of persons with disabilities. Section 47 is included in Chapter

VIII of the Act. Chapter VI deals with employment relating to

persons with disabilities including identification of posts and

reservation of vacancies for such persons. Under this

Chapter, reservation of vacancies for persons with

disabilities is made for initial appointments. Section 47 in

Chapter VIII deals with an employee of an establishment

who acquires a disability during his service.

9. Chapter VI of the Act deals with employment relating to

persons with disabilities, who are yet to secure employment.

Section 47, which falls in Chapter VIII, deals with an

employee, who is already in service and acquires a disability

during his service. It must be borne in mind that Section 2 of

the Act has given distinct and different definitions of

"disability" and "person with disability". It is well settled that

in the same enactment if two distinct definitions are given

defining a word/expression, they must be understood

accordingly in terms of the definition. It must be

remembered that person does not acquire or suffer disability

by choice. An employee, who acquires disability during his

service, is sought to be protected under Section 47 of the

Act specifically. Such employee, acquiring disability, if not

protected, would not only suffer himself, but possibly all

those who depend on him would also suffer. The very frame

and contents of Section 47 clearly indicate its mandatory

nature. The very opening part of Section reads "no

establishment shall dispense with, or reduce in rank, an

employee who acquires a disability during his service". The

Section further provides that if an employee after acquiring

disability is not suitable for the post he was holding, could

be shifted to some other post with the same pay scale and

service benefits; if it is not possible to adjust the employee

against any post he will be kept on a supernumerary post

until a suitable post is available or he attains the age of

superannuation, whichever is earlier. Added to this no

promotion shall be denied to a person merely on the ground

of his disability as is evident from sub-section (2) of Section

47. Section 47 contains a clear directive that the employer

shall not dispense with or reduce in rank an employee who

acquires a disability during the service. In construing a

provision of social beneficial enactment that too dealing with

disabled persons intended to give them equal opportunities,

protection of rights and full participation, the view that

advances the object of the Act and serves its purpose must

be preferred to the one which obstructs the object and

paralyses the purpose of the Act. Language of Section 47 is

plain and certain casting statutory obligation on the

employer to protect an employee acquiring disability during

service.

10. The argument of the learned counsel for the

respondent on the basis of definition given in Section 2(t) of

the Act that benefit of Section 47 is not available to the

appellant as he has suffered permanent invalidity cannot be

accepted. Because, the appellant was an employee, who has

acquired 'disability' within the meaning of Section 2(i) of the

Act and not a person with disability.”

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.10254 OF 2019

Brihan Mumbai Electric Supply and Transport Undertaking 

 Vs  Sadashiv Dnyandeo Gaikwad 

CORAM : MILIND N. JADHAV, J.

PRONOUNCED ON : 12th August, 2020.

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Whether ACP benefit given to government servant can be recovered if he could not work on promotional post due to physical disability?

We find that benefit of ACP was given to petitioner in view of service conditions to avoid stagnation. After the petitioner declined promotion, respondents rightly ordered its withdrawal. This withdrawal was not given effect to immediately though order to that effect was passed on 18.12.2006. Petitioner has retired almost 11 years thereafter. After retirement, that order is sought to be given effect to. Here provisions of Section 47(2) of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 also need to be kept in mind. Petitioner could not function on promotional post because of his disability. That disability could not have been used to deny him at least the benefit of ACP. Recovery as proposed is, therefore, unsustainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 7133 of 2017

Decided On: 25.09.2018

 Gulab Ganpatrao Hole Vs. The Chief Executive Officer, Amravati and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari and M.G. Giratkar, JJ.

Citation: 2019(2) MHLJ 209

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Whether High Court on administrative side is a State within meaning of Article 12 of Constitution?

 Hence, in accordance with such judgments holding that
the judgments of the High Court and the Supreme Court
cannot be subjected to writ jurisdiction and for want of
requisite governmental control, judiciary cannot be a State
under Article 12, we also hold that while acting on the judicial
side the courts are not included in the definition of the State.
Only when they deal with their employees or act in other
matters purely in administrative capacity, the courts may fall
within the definition of the State for attracting writ jurisdiction
against their administrative actions only. In our view, such a
contextual interpretation must be preferred because it shall
promote justice, especially through impartial adjudication in
matters of protection of fundamental rights governed by Part
III of the Constitution.”


22. The afore-stated authorities/observations of the Apex Court
clearly indicate that on the judicial side, the courts are not included in the
definition of “State”, but while dealing with the employees or taking
decisions in administrative capacity, the courts would fall within the
definition of “State” under Article 12. Writ jurisdiction gets attracted in
respect of the administrative decisions and actions only.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION LODGING NO. 1137 OF 2018
The National Federation of the
Blind Maharashtra and anr. 
Vs.
The High Court of Judicature of Bombay
WITH APPELLATE SIDE
PUBLIC INTEREST LITIGATION NO. 72 OF 2018
(PIL No. 46 of 2018)
(Transferred from Aurangabad Bench)
Sachin Bhaurao Chavan
Vs.
The State of Maharashtra and anr. 

 CORAM: NARESH H. PATIL &
 G. S. KULKARNI, JJ.

 PRONOUNCEMENT: MAY 03, 2018.
Citation: 2018(5) MHLJ 903

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Whether mental age of person will make him child under POCSO Act?

 The pivotal issue that emanates for consideration in these appeals, by special leave, pertains to interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”), and the primary argument of the learned counsel for the appellant is that the definition in Section 2(d) that defines “child” to mean any person below the age of 18 years, should engulf and embrace, in its connotative expanse, the “mental age” of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”.

A perusal of the provisions of the Mental Healthcare Act would again show that a distinction is made between a mentally ill person and a minor. Under Section 14, every person who is not a minor shall have the right to appoint a nominated representative, whereas under Section 15, in case of minors, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise, if grounds are made out under sub-section (2).

160. Similarly, the Rights of Persons with Disabilities Act, 2016 maintains the selfsame distinction. Sections 2(s), 4, 9, 18 and 31 of the said Act read as under:

“2. Definitions. - In this Act, unless the context otherwise requires -

(a) to (r) xxx xxx xxx

(s) “person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.”

“4. Women and children with disabilities - (1) The appropriate Government and the local authorities shall take measures to ensure that the women and children with disabilities enjoy their rights equally with others. (2) The appropriate Government and local authorities shall ensure that all children with disabilities shall have right on an equal basis to freely express their views on all matters affecting them and provide them appropriate support keeping in view their age and disability.”

“9. Home and family - (1) No child with disability shall be separated from his or her parents on the ground of disability except on an order of competent court, if required, in the best interest of the child.

(2) Where the parents are unable to take care of a child with disability, the competent court shall place such child with his or her near relations, and failing that within the community in a family setting or in exceptional cases in shelter home run by the appropriate Government or non-governmental organisation, as may be required.”

“18. Adult education - The appropriate Government and the local authorities shall take measures to promote, protect and ensure participation of persons with disabilities in adult education and continuing education programmes equally with others.”

“31. Free education for children with benchmark disabilities. - (1) Notwithstanding anything contained in the Rights of Children to Free and Compulsory Education Act, 2009, every child with benchmark disability between the age of six to eighteen years shall have the right to free education in a neighbourhood school, or in a special school, of his choice.

(2) The appropriate Government and local authorities shall ensure that every child with benchmark disability has access to free education in an appropriate environment till he attains the age of eighteen years.”

161. A perusal of the aforesaid Sections would show that children with disabilities are dealt with separately and differently from persons with disabilities. Thus, Sections 4, 9 and 31 give certain rights to children with disabilities as opposed to the other provisions, in particular Section 18, which speaks of adult education and participation thereof by persons with disabilities, obviously referring to persons who are physically above 18 years of age.

162. As a contrast to the 2012 Act with which we are concerned, the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 would make it clear that whichever person is affected by mental retardation, in the broader sense, is a “person with disability” under the Act, who gets protection. The Statement of Objects and Reasons of the said Act reads as under:

“STATEMENT OF OBJECTS AND REASONS

The Government of India has become increasingly concerned about the need for affirmative action in favour of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability.

2. In acknowledgement of a wide range of competencies among these individuals, the Central Government seeks to set up a National Trust to be known as a National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The said Trust will be promotive, proactive and protectionist in nature. It will seek primarily to uphold the rights, promote the development and safeguard the interests of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability and their families.

3. Towards this goal, the National Trust will support programmes which promote independence, facilitating guardianship where necessary and address the concerns of those special persons who do not have their family support. The Trust will seek to strengthen families and protect the interest of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability after the death of their parents.

4. The Trust will be empowered to receive grants, donations, benefactions, bequests and transfers. The Central Government will make a one-time contribution of rupees one hundred crores to the corpus of the Trust to enable it to discharge its responsibilities.

5. The Bill seeks to achieve the aforesaid objectives.”

163. Relevant provisions of this Act are Sections:

2(g), 2(j), 14(1) and 17(1), and the same are reproduced as under:

“2. Definitions. - In this Act, unless the context otherwise requires -

(a) to (f) xxx xxx xxx

(g) “mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterised by sub-normality of intelligence;

(h) & (i) xxx xxx xxx

(j) “persons with disability” means a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disability.”

“14. Appointment for guardianship.-

(1) A parent of a person with disability or his relative may make an application to the local level committee for appointment of any person of his choice to act as a guardian of the persons with disability.”

“17. Removal of guardian.-(1) Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is-

(a) abusing or neglecting a person with disability; or

(b) misappropriating or neglecting the property,

it may in accordance with the prescribed procedure apply to the committee for the removal of such guardian.”

164. A reading of the Objects and Reasons of the aforesaid Act together with the provisions contained therein would show that whatever is the physical age of the person affected, such person would be a “person with disability” who would be governed by the provisions of the said Act. Conspicuous by its absence is the reference to any age when it comes to protecting persons with disabilities under the said Act.

165. Thus, it is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word “mental” into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal legislation, we as Judges can extend it only as far as Parliament intended and no further. I am in agreement, therefore, with the judgment of my learned brother, including the directions given by him.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Dipak Misra and R.F. Nariman, JJ.)

Ms. Eera v. State (Govt. of NCT of Delhi) & Anr.

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What is distinction between permanent disability and temporary disability?

Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8981 of 2010.

Decided On: 18.10.2010

 Raj Kumar Vs. Ajay Kumar and Anr.

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Whether salary can be paid to physically handicapped employee even if she does not attend duty?

Now back to the case: As has been extracted, the medical

report is unambiguous; in fact, it reads distressingly. With loss of


bowl control and faecal incontinence--and further always to be

attended to--the employee has precious little to offer to her

employer as her contribution in the workplace. Prone to infections

and potential to spread them, the employee poses danger to herself

and to others as well. The employer seems to have understood that

keeping an employee on the rolls, as if she had been in service,

must mean that she should perform the ritual of attending office.

We are afraid it is misplaced, if not perverse. We cannot, however,

hide our surprise at the vigour with which, the giant of an

employer, the Railways, has pursued the matter against a woman

who has already been beaten by fate to her wheel chair for life.

      67. We do not deny that the employer may have been spurred

by a sense of duty, but a generous spirit of accommodation might

have been much appreciated. Lest the employer's insistence on the

employee's physical presence under impossible--and perilous--

circumstances should be taken as a display of official hubris. Let



us not forget every disabled person is not a Stephen Hawkins to

contribute, still.

       68. Here is a conflict, as it seems, between the employee's

constitutional right--right to dignity and privacy--and the

employer's right--right to compel an employee to discharge the

allotted functions. Need we say, it is the constitutional right that

prevails? Nevertheless, we hasten to add, it may be a constitutional

canon but needs the facts to justify it. Here, the facts, we think,

justify this conclusion.

       69. We may end our disposition with a quote that puts the

issue in perspective: "Dignity is as essential to human life as water,

food, and oxygen. The stubborn retention of it, even in the face of

extreme physical hardship, can hold a woman's soul in her body

long past the point at which the body should have surrendered it."34




34 Laura Hillenbrand, Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010,
  Random House) [Gender changed to contextualize]



Result:

      70. Under these circumstances, we hold that the learned

Tribunal has rendered Ext.P10 order in consonance with the

principle of law calling for no interference. In the facts and

circumstances, we dismiss the Original Petition as devoid of merit.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT:

           MR.JUSTICE P.R.RAMACHANDRA MENON
                                             &
              MR. JUSTICE DAMA SESHADRI NAIDU

          3RD DAY OF OCTOBER 2016

                              OP (CAT).No. 182 of 2016 (Z)
                           

        UNION OF INDIA,
           Vs

                FANCY BABU,
             

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