Madras High Court
The Divisional Manager vs Palani ... 1St on 17 March, 2020
Author: P.Velmurugan
Bench: P.Velmurugan
CMA(MD)No.114 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.03.2020
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
CMA(MD)No.114 of 2020
and
C.M.P.(MD).No.1981 of 2020
The Divisional Manager,
M/s.United India Insurance Company Ltd.,
Divisional Office,
No.7-A, West Veli Street,
Madurai .. Appellant/2nd Respondent
Vs.
1.Palani ... 1st Respondent/Petitioner
2.S.Regan ... 2nd Respondent/1st Respondent
Prayer:Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1998, to set aside the judgment and decree made in
M.C.O.P.No.1612 of 2015 dated 04.05.2018 on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate Court, Madurai.
For Appellant : Mr.J.S.Murali
For Respondents : No appearance
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CMA(MD)No.114 of 2020
JUDGMENT
The first respondent, who is the claimant herein has filed a claim petition in M.C.O.P.No.1612 of 2015 before the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court), Madurai. The Tribunal, after considering the oral and documentary evidence, awarded a sum of Rs.18,04,800/-. Challenging the same, the appellant/Insurance Company is before this Court.
2.Though the learned counsel for the appellant has not disputed the manner of the accident and also the liability, the only dispute is the quantum of compensation passed under the head of disability.
3.The learned counsel appearing for the appellant would submit that the Doctor, who had issued the Disability Certificate is a Private Doctor and even though he has given the Disability Certificate, in which the disability of the claimant was fixed at only 4.5%, whereas, the Tribunal has taken 100% disability and fixed the notional income of the deceased at Rs.6,000/- per month and adopted appropriate multiplier. Even the Doctor, who examined the claimant, has not stated anything 2/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 about the total permanent disability of the claimant and the claimant is not able to do any work as he was doing before the accident. However, the Tribunal has taken 100% disability and fixed notional income at Rs.6,000/- and adopted proper multiplier and awarded compensation of Rs.12,96,000/- on the head of the disability, which warrants interference by this Court.
4.Heard the learned counsel appearing for the appellant and perused the materials available on record.
5.On a careful perusal of the records as well as the judgment of the Division Bench of this Court in the case of THE BRANCH MANAGER, TATA AIG GENERAL INSURANCE CO. LTD., V. PRABHU reported in 2016(1) TN MAC 609, wherein the Division Bench of this Court while arriving at disability, they have referred the claimant to the Medical Board. The relevant portion of the judgement is extracted hereunder:
“23. For any and all the above reasons, we hereby deem it fit and proper to issue the following directions:3/9
http://www.judis.nic.in CMA(MD)No.114 of 2020
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 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
ii) We hereby direct that 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.
iii)We hereby direct that the Medical Board shall be at liberty to follow its procedures and practices or conduct tests as they may deem fit, for issuance of such certificates of disability while following the procedure laid down in the Manual above
iv)We hereby direct that the Medical Board/s shall be at liberty to charge such fee as may be required from the insurance companies or transport corporations or such other contesting parties, as the case may be, to pay the same as part 4/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 of the costs of the proceedings, to the concerned Medical Board.
v)We hereby direct that the Claims Tribunal shall, upon receipt of the certificate of disability, in sealed cover from the medical Board/s concerned, shall issue a certified copy of the said certificate to the contesting parties, on application
vi)We hereby direct that Claims Tribunals shall mark the certificates of disability without need for any oral evidence or insisting upon the appearance of Medical Board official or personnel or Doctor, ordinarily, as a matter of course.
However, in exceptional cases, this would not preclude the Claims Tribunals, for reasons to be recorded in writing, suo motu or at 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 5/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 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.” However, the Tribunal has failed to follow the above said guidelines given by the Division Bench of this Court and even against the evidence of the Doctor, the Tribunal arrived at 100% disability and adopted appropriate multiplier. Hence, this Court finds that the order the Tribunal is perverse, which needs interference.
6.Therefore, this Civil Miscellaneous Appeal is allowed and the order passed by the Tribunal is set aside and M.C.O.P.No.1672 of 2915 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Madurai, is remanded back to the Tribunal for fresh 6/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 consideration and the Tribunal is directed to obey the guidelines given by the Division Bench of this Court, while awarding the compensation on the ground of disability. The Tribunal is directed to complete the proceedings including the following guidelines given by the Division Bench of this Court, within a period of four months from the date of receipt of a copy of this judgment. Further, it is informed by the learned counsel for the appellant that already 10 Lakhs has been deposited before the Tribunal in M.C.O.P.No.1612 of 2015 and the Tribunal is directed to deposit the said amount in any one of the nationalized bank in the interest bearing account, till the disposal of the M.C.O.P. No costs. Consequently, connected miscellaneous petition is closed.
17.03.2020 Index :Yes/No Internet : Yes/No Ns 7/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 P.VELMURUGAN,J Ns To
1.The Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Madurai.
2.The VR Section, Record Clerk, Madurai Bench of Madras High Court, Madurai.
CMA(MD)No.114 of 2020
and C.M.P.(MD).No.1981 of 2020 17.03.2020 8/9 http://www.judis.nic.in CMA(MD)No.114 of 2020 CMA(MD)No.114 of 2020 and C.M.P.(MD).No.1981 of 2020 P.VELMURUGAN,J The Registry is directed to call for explanation from the Motor Accident Claims Tribunal (Chief Judicial Magistrate) Court, Maudrai, for not following the direction given by the Division Bench of this Court in the case of THE BRANCH MANAGER, TATA AIG GENERAL INSURANCE CO. LTD., V. PRABHU reported in 2016(1) TN MAC 609 and place it before this Court.
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