TMI Blog2016 (4) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... regularly appear before the claims tribunals. It is not rocket science to identify the personnel who appear in these proceedings as they are found in the list of witnesses before various claims tribunals all over the State, very regularly. That has been the major grouse or grievance of the insurance companies and transport corporations that these medical professionals do not follow proper practices and their assessments are tilted to advance the interest of the claimants, at times, unfairly. This procedure and practice in assessment of permanent disability by various Doctors in various claims tribunal have led to huge pendency of appeals before this Court also. The sequence of facts, has led to believe that if there was a uniform and consistent practice and procedure in the assessment of permanent disablement and possibly functional disability thereof, then the scope for expeditious disposal of claims may be possible and avoidance of appeals may also become feasible. This Court has pointed out to Central Government Notification on assessment of disability - it is found that Disability (Permanent Physical Impairment) Assessment and Certification- Guidelines Gazette Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly reduced. In effect, the procedure hit upon and devised for follow up and practice would go a long way in aiding and assisting the Parliamentary mandate to provide speedy succor and relief to innocent motor accidents claims. It would truly be a win win situation for all stakeholders concerned. It is directed that in motor accidents claims the claims tribunals shall issue a letter to Medical Board in the District of Tamil Nadu. Within whose jurisdiction the claim petition was pending and in case there was no Medical Board in the said District to the nearest District Medical Board, to examine the injured claimant/victim and issue a certificate of disability within such time as may be specified by the claims tribunal - the Medical Board/s shall assess the permanent disability or lack thereof as per the Disability (Permanent Physical Impairment) Assessment and Certification- Guidelines Gazette Notification- issued by Ministry of Social Justice Empowerment, Government of India- Regd No.DL33004/99 (Extraordinary) Part II, Sec 1, June,13, 2001- published by National Institute for the Orthopedically Handicapped - the High Court Registry shall issue a Circular on these directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents, one Mr.Sivamurugan was examined as R.W.1 and one Mr.Selvasubramanian was examined as R.W.2. Exs.R-1 to R-8 were marked the details of which are as follows:- 6. Considering the oral and documentary evidence, the Tribunal granted the following amounts as compensation with 7.5% interest:- Sl.No. Head Amount granted by the Tribunal 1 Future loss of earnings for the injury sustained by the claimant in the accident Rs.12,66,840/- 2 Medical expenses Rs. 3,71,000/- 3 Pain and sufferings Rs. 50,000/- 4 Metal Agony Rs. 50,000/- 5 Loss of amenities Rs. 50,000/- 6 Transport expenses Rs. 20,000/- 7 Nutrition expenses Rs. 30,000/- Total Rs.18,37,840/- 7. The appeal is canvassed only in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia 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.428/2016 dt.11/3/2016) had recently framed Guidelines for the conduct of trial proceedings and in the disbursal of compensation commending adoption of Direct Bank transfer to the bank accounts of the claimants/victims affording them an opportunity to take full control of the awards granted to them to manage their lives. We felt it was time to embrace technological change to dispense justice and meaningfully at that. We had directed implementation of the comprehensive scheme for the betterment of the community of victims and hope our intention is translated on the ground as it is intended it to be. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Doctors virtually practising in this jurisdiction. The insurance companies and transport corporations repeatedly complain that they are stock witnesses and challenge their assessments, even if accepted by claims tribunals after discounting the same. We have noted some decisions which have been critical of the mode and manner of assessment of disability by these Doctors who regularly appear before the claims tribunals. It is not rocket science to identify the personnel who appear in these proceedings as they are found in the list of witnesses before various claims tribunals all over the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eg. 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 diminishment of his capacity to work and to the loss of earning capacity. (Emphasis Ours). In A Critique on Motor Vehicles Laws (by Justice K.Kannan N.Vijayaraghavan, Advocate, 13th Edition, 2008), it is precisely this predicament that is referred to. They observed that the expert witnesses or Doctors, who appear before the Tribunals are stock witnesses. They know no standards, do not conform to any uniform practices. They do not follow any criteria. The Tribunals are also under work pressure and therefore, they just accept or slightly modify the disability as certified by those Doct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 and procedure for certification. This was in modification of the guidelines issued earlier in the year 1986 and in view of the provisions of Persons with Disabilities (Equal opportunities, Protection of Rights and full Participation) Act, 1995, the Government of India had set up four Committees, in terms of its order dated 28.8.1998, under the chairmanship of the Director General of Health Services, one each in die area of Mental Retardation, Locomotor and Orthopaedic Disability, Visual Disability and Speech and Hearing disability. Further, in the year 1999, a fifth Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished 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. Obviously medical board constituted by the government would be entitled to do so, more so, when attached to Major Government Hospitals or District Hospitals. This fortifies our stand that need as come to introduce the much needed element of uniformity and consistency in assessment of disabilities and standardization in issuance of Certificates of disability. If consistency and uniformity can be achieved then the disputed area would be significantly reduced. We find that the primary reason for the gross divergence and alleged exaggeration in assessment of permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that as on date there is no bar for private practitioners to adduce evidence on behalf of claimants or even the insurance companies and transport corporations. This practice allied with the absence of one scientific method followed in practice are the causes for the ails in this area. We need to rid the same to enable certainty in expeditious disposal of claims and also avoid the scope and chances for continued challenge in appeals too. 21. If the scientific basis identified by us as the basis for assessment of permanent disability is followed then it may le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies 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 and devised for follow up and practice would go a long way in aiding and assisting the Parliamentary mandate to provide speedy succor and relief to innocent motor accidents claims. It would truly be a win win situation for all stakeholders concerned. 23. For any and all the above reasons, we hereby deem it fit and proper to issue the following directions: i) We hereby direct that in motor accidents claims the claims tribunals shall issue a letter to Medical Board in the District of Tamil Nadu. Within whose jurisdiction the claim petition was pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the case. 24. In the result, the award and the decree passed by the Tribunal are confirmed. Civil Miscellaneous Appeal is dismissed with the above observations. By order dated 16.10.2015 in M.P.No.1 of 2015, the appellant insurance company was directed to deposit the entire award amount. On such deposit the claimant was permitted to withdraw Rs.10,00,000/-. Hence, the claimant is permitted to withdraw the balance award amount on filing appropriate application before the Tribunal. There will be no order as to costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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