Delhi High Court - Orders
Santokh Singh vs Sandeep Pandey & Ors on 25 September, 2023
Author: Navin Chawla
Bench: Navin Chawla
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP. 243/2021
SANTOKH SINGH ..... Appellant
Through: Mr.Pankaj Gupta, Adv.
versus
SANDEEP PANDEY & ORS. ..... Respondents
Through: Ms.Rakhi Dubey and Sandeep
Kr. Dubey, Advs. for NIC.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 25.09.2023
1. This appeal has been filed challenging the Award dated 18.12.2019 passed by the learned Motor Accident Claims Tribunal-02, West District, Tis Hazari Courts, Delhi (hereinafter referred to as 'Tribunal') in Petition No.76302/2016, titled as Santokh Singh v. Sandeep Pandey & Ors..
2. It was the case of the appellant/claimant before the learned Tribunal that on 23.12.2015 at about 5.30 p.m., the claimant was going to Ganesh Nagar from Tilak Nagar on his scooter bearing registration No.DL-8SU-3532. When he reached near Gurudwara, 20 Block, Tilak Nagar, a car bearing registration No.DL-1YD-0952 (hereinafter referred to as 'offending vehicle') came at a high speed in a rash and negligent manner and hit the scooter of the claimant from behind, resulting in the claimant falling down and sustaining injuries. Thereafter, he was rushed to Sri Balaji Action Medical Institute, Paschim Vihar for treatment. From there, he voluntarily removed himself to the Central Hospital, Ganesh Nagar.
3. The limited challenge of the appellant to the Impugned Award is on the plea that the appellant has suffered 100% permanent hearing disability as a result of the accident, however, the learned Tribunal has This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 22:45:11 not granted any loss of future income to the appellant, rather treating the injury suffered by the appellant to be simple in nature.
4. In support of his plea, the learned counsel for the appellant has placed reliance on the Certificate for the Persons with Disabilities dated 23.07.2016 issued by the Medical Board appointed by the Guru Govind Singh Government Hospital, Raghubir Nagar, New Delhi and the statement of MS ENT at the same hospital, Dr. Nani Dumi (PW-2) recorded before the learned Tribunal. He submits that the PW-2 proved the Disability Certificate. In his cross-examination, the respondent no.3 herein, did not put to the PW-2 that the permanent hearing disability suffered by the appellant could be pre-existing as on the date of the accident.
5. He further places reliance on the statement of Ms.Tajinder Kaur, wife of the appellant (PW-1) who, in her evidence by way of affidavit, stated that the appellant had suffered multiple and grievous injuries including head injury with B/L Sensory Nerve Hearing Loss. He submits that, even in her cross-examination, no suggestion was put to her by the respondent no.3 herein that the loss of hearing was a pre- existing condition of the appellant as on the date of the accident.
6. He submits that the learned Tribunal has, therefore, erred in relying upon certain medical documents filed along with the Detailed Accident Report (in short DAR) before it when the same were not proved by calling the concerned doctors as witnesses.
7. On the other hand, the learned counsel for the respondent no.3 submits that the medical documents filed along with the DAR and more importantly, the Discharge Summary report from the Sri Balaji Action Medical Institute dated 26.12.2015 along with the MLC dated 23.12.2015, show that Dr.Jayant Jaswal and Dr.Rohit Vishnoi of Sri Balaji Action Medical Institute had opined that due to the absence of the appellant's Pure Tone Audiometry (in short PTA) prior to the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 22:45:11 accident, the hearing loss cannot be attributed to the injuries sustained in the accident. They further opined that the appellant has suffered simple injury from neurosurgery side. She submits that even the DAR was filed stating that it was a case of simple injury.
8. I have considered the submissions made by the learned counsels for the parties.
9. It is not in dispute that the appellant suffers from 100% permanent hearing loss, as it is evident from the Disability Certificate dated 23.07.2016, which stood proved by the testimony of PW-2. No suggestion was given to the PW2 that the above disability was pre- existing in the appellant before the accident.
10. Further, PW-1, in her statement, also stated that the appellant has suffered head injury with B/L Sensory Nerve Hearing Loss as a result of the accident. Not even a suggestion was put to her that the loss of hearing was a pre-existing condition of the injured.
11. The Discharge Summary report dated 26.12.2015 from the Sri Balaji Action Medical Institute also states the diagnosis as "RTA with Head Injury with B/L Sensory Nerve Hearing Loss". In the medical history of the appellant, it is stated that the appellant was a "known case of Osteogenesis imperfecta". Therefore, it was not mentioned that the appellant also was suffering from loss of hearing before the accident.
12. Merely because the doctors at Sri Balaji Action Medical Institute were not in possession of the appellant's previous PTA test report, they opined that the hearing loss could not be attributed to the injury sustained in the said accident.
13. Similarly, a mere categorization of the injury suffered as 'simple' in the MLC or in the DAR would not make any difference. Though, the injury may be simple, its effects can be far reaching and permanent. In the DAR, in fact, the option given is only of "simple or This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 22:45:12 fatal injury". Presumably, in the said Form, permanent disability shall also fall in the category of 'simple', being not 'fatal injury'.
14. In my opinion, in presence of other evidence before the learned Tribunal which had been led by the claimant in support of his claim, the claimant/appellant had been able to make out a case of him suffering from permanent hearing disability as a result of the accident.
15. In view of the above, the Impugned Award, insofar as it proceeds to award compensation in favour of the appellant treating the injury suffered by the appellant as simple in nature and not as a permanent disability, is set aside.
16. As a consequence of the above, the functional disability suffered by the appellant towards his whole body, and the compensation that the appellant would be entitled to, would have to be re-determined by the learned Tribunal.
17. Accordingly, the claim petition is remanded to the learned Tribunal to make an assessment of the above.
18. As the date of the accident is 23.12.2015 and the evidence of the parties is already on record, the learned Tribunal is requested to expedite the process of such determination and make an endeavour to do so within a period of three months of the remand.
19. The parties shall appear before the learned Tribunal on 31st October, 2023.
20. The appeal is disposed of in the above terms. There shall be no orders as to costs.
21. The Trial Court Record be sent back to the learned Tribunal.
22. Dasti.
NAVIN CHAWLA, J SEPTEMBER 25, 2023/ns/rp Click here to check corrigendum, if any This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/09/2023 at 22:45:12