9911796707
TMI Blog2016 (4) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... nt herein, was going by TN 38 TIJ 0967 from South to North in the Tirupur to Palladam Road, in front of Ramasamy Muthammal Kalyana Mandapam, the vehicle bearing registration No.TN 39 AE 6215 driven by 2nd respondent's driver came from North to South rashly and negligently and dashed against the claimant. Due to the accident, the claimant sustained injuries as follows: "back side head, severe head injury, right maxille lower law fracture, nose fracture, upper three tooth broken over and all over and injuries the body" The claimant was employed in Greenway Clothing at Bhuvaneswari Nagar, Andipalayam, Tirupur as a Machine Operator and earned Rs.19,000/- per month. After the accident, the claimant is unable to attend the work. Hence, he filed a claim petition before the Tribunal claiming compensation in a sum of Rs.24,00,000/-. 4. Before the Tribunal, the injured claimant was examined as P.W.1. One Mr.Velmurugan, was examined as P.W.2 and Dr.Dhanasekaran, was examined as P.W.3. Exs.P-1 to P-7 were marked, the details of which are as follows:- 5. On the side of the respondents, one Mr.Sivamurugan was examined as R.W.1 and one Mr.Selvasubramanian was examined as R.W.2. Exs.R-1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of claims is the primary look out so as to ensure early payment and receipt of Just compensation by the innocent motor accident victims/claimants. As per Sec.168(2), on pronouncement of award, the claimants shall be furnished with a copy of the award within 15 days of such pronouncement. Sec.146 contemplates mandatory insurance cover for third parties to protect the community of unfortunate victims. The Courts, Hon'ble Supreme Court downwards construe the provisions in this beneficial jurisdiction liberally and in favour of the victims alone as held in Captain Itbar Singh v. British General India Insurance Company Limited AIR 1959 SC 1331, Skandia Insurance Company Limited v. Kokilaben Chandravadan, AIR 1987 SC 1184, Sohan Lal Passi v. P. Seshreddy, 1996 (5) (SC) 21, National Insurance Company Limited v. Swaran Singh, 2004 (3) SCC 297. The entire look out is to ensure that the innocent motor accidents victims get the benefit of Just compensation as early as may be possible, so as to enable the claimants/victims to get back on track from the derailment suffered from the traumatic accident. In line with this intention, this Court in The Oriental Insurance Co Ltd v Rajesh (CMA No.428/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find the claims being disposed of as early as has been mandated or facilitated. In our experience, one of the primary or major causes for the continued pendency of claims either before the claims tribunals or before this Court is the divergence in views with regard to the assessment of permanent disability and the prevalent practice thereof. Despite the plethora of case-law on the issue of assessment of disability and fixation of functional disability, the rival stands taken by the contesting parties necessitates detailed examination. The claims tribunals may have the benefit of say a decision as in Raj Kumar v Ajay Kumar in 2011 ACJ 1 (SC), where the Apex Court has laid down parameters and guidelines in this regard. In this very decision the pitfalls associated in assessment of permanent disability has been gone into as there is no one strait jacket formula and the fact the claimants choose to adduce evidence to through Doctors of their choice, makes it more litigation friendly. Of course, the evidence of a certificate of disability from Medical Board was commended for acceptance in that decision. 14. We do find that the claimants choose to examine a 'select group of Doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accidents claim petition is not an occasion for bonanza for persons, who have sustained fractures. The injury sustained must always be co-related to the avocation of the injured to assess the degree of disability or loss of earning capacity as the case may be." "The injured had, in this case, a mere fracture on his right tibia. We will even accept the Doctor's evidence that there is slight difficulty in straightening the leg and therefore there is some incapacity to walk fast. We will also accept the Doctor's evidence that there is slight bending and shortening of the leg. We cannot accept that this injury had in any way resulted in loss of status for the injured in the society and that he had suffered mental agony on account of such status loss." "The erratic manner in which disability is assessed for fractures and other injuries which are not as grievous as loss of limbs or amputation is neither fair nor just. We feel that there should be some consistency and some uniformity. It pains us to see extravagant awards, for what is really not a major disability. The pain that the injured feels is not something we are ignoring but what we have to assess is the diminishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions proposed by us need a statute change. What we are proposing is a procedure and practice change and reference to Medical Board which is embraced every now then, even today. In the meanwhile, we are distressed to note that claim petitions are languishing at various stages due to the divergence in views with regard to the assessment of permanent disability. The views expressed in Sivakumar case (Mad) and reference made to Jayanna's case (AP) are not stray instances. It may be time for this Court to take note and come up with a solution in the larger interest of motor accidents claims and in fact all stake holders in this jurisdiction. The earlier we come up with a solution the better it would be for all concerned. 17. Our attention has been drawn to a decision of the Karnataka High Court in N.Obalaranga v United India Ins Co Ltd, Manu KA 0062/2009 where reference has been made to the Central Government Circular dated 13/6/2011 and for assessment of disability by Medical Boards. It makes instructive reading. "The Ministry of Social Justice and Empowerment, Government of India, has issued a Notification dated 1.6.2001 providing guidelines for evaluation of various disabilities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or the Medical Practitioners address the impairment in relation to the human body and not in relation to a person with a particular avocation. The guidelines prescribed do not envisage a procedure to assess the disability suffered by an individual with reference to his particular avocation, geographical location, educational background, family conditions and such other factors. The evidence of a Medical Practitioners as regards the physical impairment is thus limited in scope, its consequence on the avocation or activity of a claimant are matters which are to be established at the trial and it is for the Court or Tribunal to assess the loss of earning capacity with reference to the same." 18. We do feel that standardization has been strongly advocated in the above decision. We also find that an RTI query was made to the health commisionerate, medical services and medical education on the issuance certificates of disability by Medical Board etc., We find that the authority has confirmed that Private Hospitals were not allowed to give disability certificates. Only government hospitals, medical college hospitals, District Hospitals and Sub District Hospital were empowered to do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, June,13, 2001- published by National Institute for the Orthopaedically Handicapped, is a comprehensive test and manual put in place. On going through the same we find that it has been drafted and crafted meticulously and has given formula which may lead to arithmetical accuracy in assessment of permanent disability. Or at least it reduces the scope for divergence in assessment and introduces the much needed element of uniformity and consistency in assessment of permanent disability .We find that the Guidelines have the backing of scientific analysis and data and methods devised to reduce the scope for speculation or arbitrariness. This is what this Court had commended acceptance in Sivakumar's judgment. 20. We feel that time has come to take advantage of this readily available scientific method of assessment of permanent disability. There is even a Format of the certificate devised herein and if the certification was on these line s, it would surely rid the gross divergence and dispute and enable an element of uniformity and consistency sorely missing as of now. It would at least enable the claims tribunals and courts to confidently rely upon the said certificates. It is true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore. There should be no difficulty to embrace this procedure is mandated to be Summary in nature ( Sec.169). So be it. There cannot be complaint or grouse from either side for the remedy of credibility, authenticity allied with uniformity and consistency would overwhelm any other aspect. The stakeholders in this jurisdiction would get to gain immensely considering that the claimants/victims may no longer need to seek certification from Doctors or have them examined and matters disputed and delayed based on assessment of disability. Equally, the insurance companies and transport corporations, in particular, may have their major grouse and grievance of 'stock witnesses' certifying disability be ruled out. Medical Board has the authority of law and is an independent body. The Medical Board is also required to assessed the permanent disability based on the Central Government circular dt.13/6/2001.The sorely missing element of uniformity and consistency would surely lead to early disposal of claims and possible settlements of the same. Further, scope for dispute in appeals on divergence in assessments of disability would be considerably reduced. In effect, the procedure we have hit upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request of the contesting parties to direct the author/s of the certificate/s of disability, from the Medical Board/s, to appear before the Claims Tribunal to answer clarifications, if any, sought for. vii) We hereby direct that the above said procedure and procedure shall come into force on and from 1/8/2016 and time granted thereof shall be utilized by all the stakeholders to arrange for necessary logistics support for smooth conduct of proceedings under the new dispensation viii) We hereby direct that High Court Registry shall issue a Circular on these directions along with the judgment with reasons to be sent to Medical Boards in all Districts of Tamil Nadu through the Registry of the District Courts in Tamil Nadu, as soon as possible (ix) We hereby make it clear that it shall be open all stakeholders including the Registries and Medical Boards concerned, to approach this Court for any clarifications or changes or modifications they envisaged for the better implementation of this new dispensation, intended to serve the cause of the innocent motor accidents victims/claimants, as the case may be and this Court shall be obliged to consider the same in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
