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2009 Supreme(Mad) 1448
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
National Insurance Co. Ltd., Motor Third Party Claims Office
Versus
A.P. Prasanna Venkatesh & Another
C.R.P.(PD)No.3685 of 2007 and M.P.(MD).No.1 of 2007
Decided on: 28-04-2009
For the Petitioner:Srinivasan Ramalingam, Advocate.
For the Respondents:R1, M/s. C & K Law Firm, Advocates.
The main legal point established in the judgment is the importance of just and reasonable compensation based on established legal standards and the critical analysis of medical evidence in assessing disability.
Headnote:
Disability Certificate - Motor Accidents Claims Tribunal - Motor Vehicles Act, 1988 - Section 168, Section 169 - The court discussed the legal provisions of the Motor Vehicles Act, 1988, particularly Section 168 and Section 169, which mandate the Tribunal to endeavor to pay just compensation to an accident victim and provide the Tribunal with the powers of a civil court for taking evidence and enforcing attendance of witnesses. The court emphasized the need for just and reasonable compensation based on established legal standards and the importance of a critical analysis of medical evidence in assessing disability.
Fact of the Case:
The first respondent claimed compensation for injuries sustained in a motor accident. The petitioner, an insurance company, filed an application to direct the claimant to appear before a medical board for independent evaluation of continuing permanent disabilities. The application was rejected as not maintainable, leading to the civil revision petition.
Finding of the Court:
The court found that the rejection of the application for subjecting the claimant before the Medical Board was correct and did not prevent the petitioner from filing an application to recall the medical officer for further cross-examination based on prescribed guidelines for assessing disability.
Issues: The issues involved the maintainability of the application filed by the insurance company to direct the claimant to appear before a medical board for evaluation of disability and the burden of proof on the claimant to prove the percentage of disability.
Ratio Decidendi: The court emphasized the need for just and reasonable compensation based on established legal standards and the importance of a critical analysis of medical evidence in assessing disability. It also clarified that the rejection of the application did not prevent the petitioner from filing an application to recall the medical officer for further cross-examination based on prescribed guidelines for assessing disability.
Final Decision: The Civil Revision Petition was dismissed with the observation that the rejection of the application for subjecting the claimant before the Medical Board did not prevent the petitioner from filing an application to recall the medical officer for further cross-examination based on prescribed guidelines for assessing disability.
1. This civil revision petition is directed against the order dated 111. 2007 in M.P.S.R.No.38270 of 2007 in M.C.O.P.No.5111 of 2004 on the file of the Motor Accidents Claims Tribunal (V Court of Small Causes), Madras, whereby and where under the application submitted by the petitioner to direct the first respondent/claimant to appear before the medical board for assessing the disability was rejected as not maintainable.
2. The claim petition in M.C.O.P.No.5111 of 2004 was preferred by the first respondent claiming a sum of Rs.30,00,000/- on account of the injury sustained by him in an accident on 27.07.2004 involving the vehicle owned by the second respondent and insured with the petitioner.
3. In the claim petition filed before the Tribunal, it was the case of the first respondent herein that when he was proceeding in his motor vehicle bearing Registration No.TN-10-A-5500 along the Tharamani 100 feet road near Bharathi Nagar bus stop from eastwest direction on 27.07.2004 at about 12.30 hours, the lorry bearing registration No.TN-07-C-7995 came from behind in a rash and negligent manner and dashed against his motorcycle and as a result of which, he sustained grievous injuries. The first respondent also produced a certificate of disability issued by Dr. Mathiyazhagan assessing the disability at 80%. Accordingly, the first respondent claimed compensation from the second respondent, being the owner of the lorry and the petitioner herein, being its insurer.
4. The claim petition was resisted by the petitioner and in the counter statement filed before the Tribunal, they have disputed the accident as well as the injuries sustained by the first respondent. They have also sought leave to contest the claim on all grounds that may be available to the insurer under Section 170 of the Motor Vehicles Act, 1988.
5. Subsequently, the claim petition was taken up for trial and during trial, Dr. Mathiayazhagan was examined as P.W.3. During the course of his evidence, he has deposed that the first respondent sustained a permanent disability and it was assessed at 80%. It was his further evidence that the claimant was not treated by him at any point of time for the injuries sustained by him in the accident on 27.07.2004. P.W.3 has seen the injured for the first time on 12.09.2007, the date on which he has issued the disability certificate marked as Ex.P.30.
6. While so, the petitioner filed an application before the Claims Tribunal in M.P.S.R.No.38270 of 2007 to direct the claimant to subject himself for being examined by a medical board for an independent evaluation of continuing permanent disabilities sustained by him directly, and as a result of the injuries suffered in the accident.
7. In the affidavit filed in support of the application, the petitioner contended that P.W.3, who is the author of the document in Ex.P.30, has no specialization either in Urology or Gastroenterology. However, most of the disabilities spoken to him essentially relate to such faculties. During the course of evidence, P.W.3 has also conceded that he has not evaluated the disabilities with the use of any of the medical equipments and has assessed the disability merely on a physical examination of the claimant. According to the petitioner, P.W.3 is not a specialist in the respective faculty and as such, he has issued the disability certificate at an excessive rate without any evaluation of the disability. Therefore, the petitioner was of the opinion that the claimant should be directed to appear before the medical board for evaluation of his disability for the purpose of arriving at the just compensation.
8. The application was returned by the Court as not maintainable as per order dated 111. 2007. Aggrieved by the said proceeding, the petitioner has come up with the present revision invoking the jurisdiction under Article 227 of the Constitution of India.
9. The learned counsel for the petitioner contended that P.W.3, who issued the certificate in Ex.P.30
