Madras High Court
G.Arockiya Doss vs S.Syed Ibrahim on 31 March, 2022
Author: P.T.Asha
Bench: P.T.Asha
C.M.A.No.345 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
C.M.A.No.345 of 2022
G.Arockiya Doss ...Appellant/ Petitioner
Vs
1.S.Syed Ibrahim
2.The United India Insurance Company Limited,
Silingi Building,
New No.134, Old No.40-45
Greams Road,
Chennai-600006. ...Respondents/Respondents 1 to 2
PRAYER: Petition filed under Section 173 of the Motor Vehicle Act,
to allow the appeal and enhance the compensation in
M.C.O.P.No.1372 of 2013 dated 03.09.2018 on the file the learned V
Judge, Motor Accidents Claims Tribunal, Court of Small Causes,
Chennai.
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C.M.A.No.345 of 2022
For Petitioner : M/s.Ramya Rao
For Respondents : Mr.M.B.Raghavan for R2
for M/s M.B.Gopalan &
Associates.
Not ready in notice regarding R1
Mr.Edwin Prabhakar,
Special Government Pleader
(assisting the Court)
JUDGEMENT
Though the appeal is filed by the claimant seeking an enhancement, I am, while passing orders in the appeal also compelled to pass certain directions with reference to the examination of the injured persons by the Medical Board for assessing the disability as earlier orders of this Court as well as that of the Hon'ble Supreme Court have remained directions on paper and “ready to use Certificates” issued by "Stock Witness Doctors" continue to be marked 2/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 and awards based on them. Before passing the above referred directions, I would first deal with the claim on hand.
2.The claimants have filed the above Civil Miscellaneous Appeal seeking to enhance the Award passed by the learned V Judge, Motor Accidents Claims Tribunal, Small Causes Court, Chennai.
3.The brief facts of the case are as follows:
The appellant/claimant who works as a Coolie (Load Man) and aged 37 years, had sustained injuries in a road accident that had occurred on 09.02.2010. By reason of the accident, the appellant had sustained a head injury, fracture in left superior pelvic rami, abrasion 2x1 c.m. over left maxilla and multiple injuries all over the body. He had therefore claimed a sum of Rs.6,00,000/- as compensation.
4.It is his case that on the said date, while he was crossing Anna Salai near the Exhibition ground and proceeding in an East to West 3/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 direction, a motor cycle, bearing Registration No.TN-65-J-2153 belonging to the 1st respondent and insured with the 2nd respondent, driven in a rash and negligent manner by its rider had hit the petitioner, as a result of which, the petitioner sustained grievous injuries all over the body.
5.The 1st respondent remained ex parte and it was the 2nd respondent/Insurance Company which had filed a counter and contested the claim. In their counter statement, the 2nd respondent had stated that there was no negligence on the part of the driver of the motorcycle and the accident had occurred only due to the petitioner's negligence as he crossed the road suddenly without following the basic road rules. They had further contended that the petitioner has to prove, with documentary evidence, that the driver of the 1st respondent's vehicle was holding a valid license and the vehicle was 4/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 having a valid policy.
6.The learned Judge, Small Causes Court, Chennai, by order dated 03.09.2018 had awarded a sum of Rs.1,24,000/- as compensation under the following heads:
Sr. Heads Amounts
No
1. Pain and Sufferings Rs.20,000/-
2. Extra nourishment Rs.15,000/-
3. Transportation charges R.5,000/-
4. Disability (20% x 3000) Rs.60,000/-
5. Attendant Charges (2 days x Rs.350/-) Rs.700/-
6. Towards Loss of amenities Rs.10,000/-
7. Loss of income Rs.12,000/-
8. Medical expenses Rs.1,000/-
Total Compensation Rs.1,23,700/-
Rounded off Rs.1,24,000/-
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7. Aggrieved by this compensation that has been awarded, the appellant has filed the above appeal seeking its enhancement. It is the contention of the learned counsel for the appellant, Ms.Ramya Rao, that though PW2, doctor had issued a Disability Certificate showing a partial permanent disability of an extent of 40%, the Tribunal has, without assigning any reason reduced it to 20%. Therefore, the percentage of disability has to be increased and proportionately the Award as he had sustained injuries on the pelvic region and was hospitalised for two days. She would further submit that the Award under the head of loss of income has also to be enhanced since the claimant had been without work for over five months on account of the fractures sustained by him.
8.Mr.M.B.Raghavan, learned counsel for the 2nd respondent would fairly contend that the Award appeared to be reasonable except for the fact that the disability has been reduced to 20% though PW2 6/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 has given evidence about the disabilities suffered by the appellant/claimant. Apart from that, the learned counsel has argued at length about the manner in which the Motor Accidents Claims Tribunals have thrown to winds the dicta laid down by the Division Bench of this Court as well as by the Hon'ble Supreme Court regarding the procedure that the Tribunals has to follow while dealing with injury cases, particularly, with reference to the issue of disability certificates. To add insult to injury, the learned counsel would submit that these orders are quoted out of context as a result of which, the malaise that was sought to be remedied continues unabated.
9.Heard the learned counsel for the appellant and the learned counsel for the respondents and perused the papers.
10.Admittedly, the doctor who had assessed the appellant's disability has adduced evidence as PW2 and produced the Disability Certificate (Ex.P.5) to show that the appellant had sustained a 7/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 disability of 40%. If the nature of the injury sustained by the appellant and the work done by him is taken into consideration the disability as assessed by PW2 is reasonable. However, the injuries suffered by him though of a permanent nature does not affect his future employment prospects or his earning capacity. Therefore, the compensation under the head of disability has to be assessed, only on the percentage basis and not on the multiplier method. The place of the injury and the nature of the injury together with the time that has been spent at the hospital without going for work clearly shows that the appellant had suffered immense pain. Therefore, the amount under the head of pain and sufferings, extra nourishment, loss of amenities, etc., has to be increased. Further, the appellant has himself stated that his income is Rs.6,000/- per month and considering the injury, he would have remained idle at home without work for atleast five months and therefore, an amount of Rs.30,000/- is awarded under the head of loss of income and only Rs.700/- has been awarded towards attendant charges which ought to be enhanced to Rs.4,000/-. 8/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Therefore, taking into consideration the above aspects the modified amount of compensation is as follows:
Sl. Description Amount Amount Award
No awarded by awarded by confirmed or
Tribunal this Court enhanced or
(Rs) (Rs) granted or
reduced
1. Pain and Sufferings Rs.20,000/- Rs.40,000/- Enhanced
2. Extra nourishment Rs.15,000/- Rs.25,000/- Enhanced
3. Transportation Rs.5,000/- Rs.10,000/- Enhanced
charges
4. Disability Rs.60,000/- Rs.1,20,000/- Enhanced
(assessed at (assessed at
20% x 40% x
3,000/-) 3,000/-)
5. Attendant Charges Rs.700/- Rs.4,000/- Enhanced
(2 days x Rs.350/-)
6. Loss of amenities Rs.10,000/- Rs.20,000/- Enhanced
7. Loss of income Rs.12,000/- Rs.30,000/- Enhanced
8. Medical expenses Rs.1,000/- Rs.1,000/- Confirmed
TOTAL Rs.1,23,700/- Rs.2,50,000/-
rounded off -
Rs.1,24,000/-
Therefore, the Civil Miscellaneous Appeal is allowed and the compensation is enhanced to a sum of Rs.2,50,000/-. The 2nd respondent Insurance Company is directed to deposit the 9/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 compensation amount now determined by this Court with interest @ 7.5% per annum, less the statutory deposit already made, to the credit of M.C.O.P.No.1372 of 2013 on the file of the learned V Judge, Motor Accidents Claims Tribunal, Court of Small Causes, Chennai, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the appellant is permitted to withdraw the amounts by making necessary applications.
11.The claimant is directed to pay the Court fee for the enhanced compensation amount, if required. The Tribunal below shall not disburse the enhanced amount till such time as the certified copy showing proof of payment of Court Fee has been produced by the claimant. No costs.
12.Let me now consider the argument of the learned counsel for the respondent that guidelines setting out the procedure for assessing 10/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 the disability is not being followed in its letter and spirit.
13.The learned counsel appearing for the Insurance Company had brought to the notice of this Court the first Judgement of the Hon'ble Supreme Court reported in (2011) 1 SCC 343 [Raj Kumar v. Ajay Kumar and another], where for the first time, the idea of referring cases to the Medical Board for assessing permanent disability and its impact on a person's earning capacity was mooted. The Bench had opined that when a claimant suffers a permanent disability by reason of injuries, the assessment of the compensation under the head of loss of future earnings would primarily depend upon the effect and impact of such injury/permanent disabilities on his earning capacity. The Bench had observed as follows:
"The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, 11/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, 12/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."
14.Ultimately, the Bench had remarked that while assessing this permanent disability, the Tribunal should exercise caution, particularly when accepting the "expert evidence" of Doctors who had not treated the injured but who give 'ready to use' disability certificates. The Bench had observed that such an assessment would 13/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 be without adopting the well recognised guidelines for assessing disabilities. There are several instances where there is mushrooming of unscrupulous doctors who without treating the injured, give out liberal disability certificates to help the claimants. It is for this reason that the Bench had deemed it fit to direct the constitution of a Medical Board to issue the Disability Certificate. The Bench had in Para 13, summarised the principles with illustrations as follows:
"13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the 14/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”
15.The Bench had also considered the difficulties that the 15/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 litigants/claimants would face if they are compelled to secure the presence of the surgeons or the treating doctors for giving evidence, particularly, when such doctors are busy practitioners/Surgeons. These doctors would not be willing to enter the witness box and adduce evidence since waiting in the Courts take out a considerable time of these witnesses. The Hon'ble Supreme Court had given suggestions as to how the Courts could work around this procedure. One suggestion that had been given was that the evidence of these doctors could be taken through commission subject to their availability. Secondly, the doctors could attend the Tribunal and as and when they step into Court to give the evidence the Presiding Officer shall forthwith record their evidence or else specify a time at the convenience of these doctors within working hours of the Court to adduce evidence so as to avoid them waiting in the Court the whole day. Another suggestion given was that the documents which are not contested could be marked without insisting on oral evidence being let in.
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16.The Judgment of the Hon'ble Supreme Court in Raj Kumar's case was pronounced taking into consideration the continued pendency of the claims before the Tribunal as well as the High Court in the light of the divergent views with reference to the assessment of the permanent disabilities. The Bench had opined that there should be a uniform and consistent procedure for assessment of partial disability and functional disability so as to ensure expeditious disposal of the claims.
17.Thereafter, the Hon'ble Division Bench of this Court in the Judgment dated 12.04.2016 reported in (2016) 1 TN MAC 609 [Tata AIG General Insurance Company Limited Vs. Prabhu and Others] had also commented upon the practice of the claimants choosing to examine a "select group of doctors” who were "stock witnesses”. These doctors taking advantage of a readily available scientific method had been giving varying Certificates depending upon the 17/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 claimants, the litigants/their legal counsels etc., They therefore issued the following directions which they had stated should come into effect on and from 01.08.2016:
“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 & 18/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 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 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 19/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 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 20/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 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 of the case.” 21/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022
18.Since Medical Boards had not been constituted in every District, and as the order directed all injuries which are permanent or partial in nature be referred to the Medical Board, a clarification was sought for by the Law Association and by the Principal District Judge, Villupuram. The matter was placed before the Hon'ble Bench. After hearing all the stake holders and taking into account the sagacious advice and suggestions of the learned Advocate General, directions were issued for the smooth functioning of the earlier directions in C.M.A.Nos.428 of 2016 and C.M.A.No.2380 of 2015 dated 11.03.2016 and 12.04.2016, respectively. The Hon'ble Bench in this order dated 25.11.2016, had turned down the prayer of the Law Association that since the Medical Board has not been constituted in every District the Tribunals could continue the procedure of permitting Private Doctors to give evidence. The Bench had taken note of the fact that there was a mismatch in the number of reports given by the various Medical Boards vis-a-vis the number of cases referred to 22/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 them.
19.In order to prevent a logjam of cases being referred to the Medical Board and with a view to ensuring the smooth implementation of the orders dated 11.03.2016 and 12.04.2016, the Hon'ble Bench had suggested that the Medical Board of every District should meet at least two times a week and the disability certificates should be issued within four weeks from the date of receipt of a copy of the order of the Tribunal. The Bench has also considered a contingency where there was no Medical Board constituted to examine the injured claimant/victim to issue a certificate of disability. The Bench had observed as follows with regard to the above:
“11.1.The Dean of the concerned Medical College and, likewise the Superintendent of the concerned Medical Hospital, will regularly, without fail, gather information, on a weekly basis, from the concerned Medical Boards, as to the number of 23/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 references pending before them.
11.2.The Dean and the Superintendent will ensure that no references are kept pending with the concerned Medical Boards for a period beyond four (4) weeks from the date of receipt of references from the Tribunal. In case, such an eventuality arises, the Medical Board, will articulate the reasons for the delay. If any, information, is sought from the parties, they shall be duly intimated.
11.3.In order to reduce the scope of gap in getting information and material, which would be required by the Medical Boards to carry out their functions of assessing the extent of disability, the concerned Tribunal will scan and thereafter e-mail the record of each case to the Medical Boards. The Medical Board will treat the case papers received by them from the Tribunal, as originals and act upon 24/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 the same, accordingly.
11.4. Similarly, upon assessment being made by the Tribunal, the disability certificate shall be sent, in addition via e-mail, to the concerned Tribunal. The usual delay caused because of late receipt of a hard copy could, thus, be avoided.
11.5. The Tribunal, while making references, shall ensure that a date is fixed for appearance of the claimant before the Medical Board. In case, the date fixed by the Tribunal is not convenient to the Medical Board, the Medical Board will give a fresh date, which is proximate in time to the date fixed by the Tribunal. The Tribunal will, preferably, fix a date in the presence of the claimant, so that the claimant is made aware as to the next date of appearance before the Medical Board.
11.6. The Dean and the Superintendent will 25/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 send the statistics of pending references, on a bi- monthly basis, to the Registrar (I.T.- cum -
Statistics), High Court, Madras, who, in turn, shall place a report before the concerned portfolio Judge for suitable directions to the concerned Tribunal, wherever necessary.” The above directions were summarised in Para 13.4 as follows:
13.4. Accordingly, Medical Boards will convene at least two times a week. The disability certificates will be issued without fail within four (4) weeks from the date of receipt of reference from the Tribunals.
Complicated cases will be referred to the nearest hospital/college having multi-speciality facility. The Medical Board, while referring the matter, will 26/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 articulate the area of concern. The reference will be accompanied with all relevant papers. The claimant will be communicated the date on which his/her/its presence, if at all, is required. In case any additional documents/reports are required, necessary information will be given in writing, with a copy marked to the opposing party and/or the concerned counsel.”
20.Despite these elaborate directions, certain procedural hiccups cropped up since the counsels practising before the Tribunal resisted this new move and insisted on the old system of examining the doctors who had not treated or examined the claimants but had issued only the disability certificate.
21.Once again, a clarification was sought for by the Insurance 27/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Company seeking instructions for a better implementation of these directions in C.M.P.No.6376 of 2018 with reference to injured claimants as a whole, mainly for the purpose of certifying the physical and functional disabilities for assessment of compensation. The Bench by its order dated 06.07.2018 observed that the doctors who have examined/treated the claimants alone can be examined as witnesses. The term “examined/treated” is a phrase that has to be discussed as this forms the bone of contention. This is also discussed in Paras 24 to 26 hereinbelow.
22.In the Judgement of this Court reported in (2020) ACC 442 (Mad.) [Oriental Insurance Company Limited and others v. Giridharan and others], the learned Judge had painstakingly set out the guidelines and notifications issued by the Ministry of Social Justice and Empowerment, [(Department of Empowerment of Persons with Disabilities Divyagjan)], Government of India, dated 04.01.2018 28/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 for assessing/evaluating various types of disabilities which was set out in Annexure II as follows:
I. Locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
II. Blindness and low-vision;
III. Deaf and hard of hearing and speech and language disability;
IV. Intellectual disability and specific learning disabilities;
V. Mental Illness;
VI. Chronic neurological conditions; VII. Haemophilia, Thalassemia and sickle cell disease; and VIII. Multiple disabilities.
Though various appendices under the multiple disability are formulated therein, the learned Judge had extracted the disability 29/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 which had been mentioned in Appendix IV and V falling under the head of “Multiple Disabilities”. The learned Judge had opined that the issuance of a disability certificate without meeting the statutory requirement will be an irregularity and an inconsistency and suggested that a uniform method should be adopted for the issuance of disability certificates. The Court had held that Disability Certificates have to be issued by the Authorities competent to issue such Certificates, only as per the Appendices prescribed in the aforesaid Notification dated 04.01.2018. The order was directed to be circulated to all Districts and Subordinate Courts dealing with Motor Accident Claims.
23.In a recent Judgment of the Hon'ble Supreme Court dated 16.11.2021 reported as Bajaj Allianz General Insurance v. United of India in W.P.(C) 534 of 2020, the Hon'ble Supreme Court had once again reiterated the guidelines laid down in Rajkumar and 30/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Ajaykumar and another [(2011) 1 SCC 343] and stated that the guidelines laid down therein has to be mandatorily followed by all the Tribunals in respect of the loss of income/disablement. The issuance of disability certificate, the Hon'ble Bench opined should have a Pan India Uniformity.
24.Despite the above judicial pronouncements, even today, the practitioners before the Tribunal are taking advantage of the term “who have examined/treated” in isolation, to examine doctors who just issue disability certificate without examining or treating the injured adopting the clinical methods. This, despite the fact that the Hon'ble Division Bench even in its earlier order dated 25.11.2016 in C.M.A.Nos.2380 of 2015 and 428 of 2016 referred supra had rejected the submissions of the Association that since the Medical Boards had not been able to complete the task of examining the persons with disability and submit their reports within the time stipulated by this Court, the earlier practice of bringing the stock doctors should be 31/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 permitted. In the order dated 06.07.2018 in C.M.P.No.6376 of 2018 in C.M.A.No.2380 of 2015, it was clarified that it was only doctors who alone had examined or treated the claimants who shall be permitted to be examined as witness in the absence of any report from the Medical Boards. The term “examination of the injured” involves not only seeing the injured but also giving an assessment of the injury on the date of his examination, the condition of the injury on the date of the examination by adopting clinical methods and giving an opinion as to whether the injured has recovered fully or whether the condition has worsened/partially improved and whether there is scope for improvement. The doctors who are now providing the Disability Certificate simply refer to the earlier treatment and based upon the injuries described give out Disability Certificates.
25.In the light of the above order stating that the Doctor who examines the injured can be summoned to give evidence the term 32/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 “examined/treated” has to be discussed as this forms the backbone of most claims before the Tribunal. In Stedman’s Medical Dictionary (28th Edition), the definition of the word ‘Examination’ in page 679 is as follows:
“(1)Any investigation or inspection made for the purpose of diagnosis, usually qualified by the method used.
(2)A method of evaluation of skills or knowledge after receiving instruction in a given field.” In 'Taylor’s Principles and Practice of Medical Jurisprudence' (13th Edition, Churchill Livingstone) by A. Keith Mant, the terms "clinical opinion" and "detailed medical report" have been discussed as follows:
“6.A clinical opinion is given at the end of the clinical examination and before the result of any laboratory tests are available. This opinion must be 33/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 based entirely upon the clinical findings during the examination -it may have to be modified at a later stage when the results of laboratory examinations are to hand.
The clinical opinion can only properly state that the examination findings are/are not consistent with the history given; the abnormal conditions found on examination and their possible cause; the immediate effects of the conditions found and their likely long- term effects. Medico-legal diagnosis depends upon finding abnormal conditions and assessing if the abnormal conditions found (or sometimes their absence) are consistent with the detailed history obtained. The vital importance of taking a details history before performing a thorough examination is therefore obvious.
7.A detailed medical report must be prepared as 34/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 soon as possible after the examination has been concluded, and before the laboratory results are available. This report must include:
a) the identity of the patient examined,
b) the place, date and time of the examination;
c) the identity of the authority requesting the examination;
d) the fact that consent to examination and report was obtained;
e) the identity of all persons present during the examination;
f) the details of all the history, general examination and special examinations performed;
g) the description of all specimens taken, and their disposal;
h) the clinical opinion formed during the examination;
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i) The time spent in the examination.
A copy of this report should be retained by the examining doctor, and should be available, together with the original examination notes, should the matter come to Court.”
26.In relation to medico-legal reports pertaining to forensic cases, in ‘Modi -A Textbook of Medical jurisprudence and Toxicology’ (25th Edition, Lexis Nexis) by Justice K Kannan, the author has stated what constitutes a Medico-Legal Report-
“Medico-legal report:- Medico-legal reports are the documents prepared by medical officers in obedience to a demand by an authorised police officer or a Magistrate, and are chiefly referred to in criminal cases relating to assault, rape,murder, and poisoning accidents. These reports consist of three parts, namely:
1.introductory or preliminary data, for example 36/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 full name, age, address, date, place and time of examination, including identity marks;
2.the facts observed on examination; and
3.the opinion or the inference drawn from the facts.
In order that they may be admitted as exhibits in evidence, these reports should be written by the medical officer at the time of the examination or immediately afterwards. They form the chief documents in judicial inquiries and are likely to pass from the lower to the higher Courts, as well as to be placed in the hands of pleaders. Hence, utmost care should be used in preparing them. No exaggerated terms,superlatives, or epithets expressing one's feelings should be used; they should not be judgmental.”
27.Therefore, from a reading of all these Judgments and the 37/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 literature above, it is crystal clear that the object of these Judgements were only to ensure that the persons who have sustained permanent disability should be examined by the Medical Board so as to bring about a Uniformity in the assessment of disabilities and to stop the entry of doctors who are stock witnesses and who without following the clinical method of examination of the injured issue certificates. Uniformity in the assessment of the disability which is the object of the judgment can be achieved only when the Assessment is done by the Medical Board constituted by the Deans of the respective Government hospitals. The Special Government Pleader at the request of this Court has made his submissions and after discussion with the Members of the Medical Board he has provided a specimen Disability Certificate that can be used for the purpose of assessing disability in accident cases. This specimen provides the various fields that the Members of the Board have to consider while issuing the Disability Certificate. This specimen shall form part of the Order and shall be circulated to the Deans of the various Government 38/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Hospitals/Superintendent of the Government Hospitals around the State. The Special Government Pleader would inform the Court that in cases where the functional disability has to be assessed it is only the Vocational Rehabilitation Centre at Chennai that can undertake this exercise. This once again could give rise to delay and therefore only persons who in the opinion of the Board require assessment for their functional disability can be referred to the Rehabilitation Centre at Chennai. Such Rehabilitation Centres should be set up in each District to avoid delay and the Government is directed to take steps in this regard.
28.The Tribunals while assessing the disability of injured persons shall strictly follow the dicta laid down in Raj Kumar's case by the Hon'ble Supreme Court, the Hon'ble Division Bench of this Court in the Judgment reported in (2016) 1 TN MAC 609 [Tata AIG General Insurance Company Limited Vs. Prabhu and Others] and its subsequent clarifications as also the Judgment reported in (2020) 39/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 ACC 442 (Mad.) [Oriental Insurance Company Limited and others v. Giridharan and others] which are extracted hereinbelow:
“Further, where no Medical Board is constituted, only in such cases, the doctors who had initially treated the injured or clinically examined the injured who can be called upon to adduce evidence. The Tribunal shall not give credence to the Certificate issued by any other doctor.”
29.Therefore to broadly summarise the above discussions, the Tribunal below shall follow the procedure and the directions issued in the Judgment in (2016) 1 TN MAC 609 [Tata AIG General Insurance Company Limited Vs. Prabhu and Others] and the subsequent clarifications in C.M.P.Nos.2380 of 2015 and 428 of 2016 dated 25.11.2016 and C.M.P.No.6376 of 2018 in C.M.A.No.2380 of 2015 dated 06.07.2018, and also the Judgment in (2020) ACC 442 (Mad.) [Oriental Insurance Company Limited and others v. Giridharan and others]. The main feature of the above 40/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 Judgments is collated hereinbelow:
i)Refer the injured claimant to the Medical Board of the District within whose jurisdiction the claim is filed to issue a Disability Certificate as per the annexed Specimen Disability Form. In case, the Tribunal requires a specific report with reference to the functional disability the same shall be specifically mentioned.
ii)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.
41/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022
iii)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 including the decisions to refer a patient to the Rehabilitation Centre for assessing the functional disability.
iv)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 of the costs of the proceedings, to the concerned Medical Board.
v)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 42/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 application
vi)The 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)The Dean of the concerned Medical College and, likewise the Superintendent of the concerned Medical Hospital, will regularly, without fail, gather information, on a weekly basis, from the concerned Medical Boards, as to the number of references pending 43/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 before them.
viii)The Dean and the Superintendent will ensure that no references are kept pending with the concerned Medical Boards for a period beyond four (4) weeks from the date of receipt of references from the Tribunal. In case, such an eventuality arises, the Medical Board, will articulate the reasons for the delay. If any, information, is sought from the parties, they shall be duly intimated.
ix)The Tribunal, while making references, shall ensure that a date is fixed for appearance of the claimant before the Medical Board. In case, the date fixed by the Tribunal is not convenient to the Medical Board, the Medical Board will give a fresh date, which is proximate in time to the date fixed by the Tribunal. The Tribunal will, preferably, fix a date in the presence of the claimant, so that the claimant is made aware as 44/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 to the next date of appearance before the Medical Board.
x)Where there is no Medical Board constituted in a District only in such cases, the Tribunal shall for reasons to be recorded in writing permit assessment by private doctor.
xi)Where the injured is examined by such private Doctor the Tribunal shall ensure that this Doctor has medically examined the injured and issued the Certificate after undertaking the various medical tests as required and issue the Disability Certificate as set out in the Specimen Disability Certificate.
xii)The Tribunal shall ensure that Doctors who simply rely upon the earlier medical records to issue the medical certificate shall not be permitted to adduce evidence and this Certificate shall not be taken on file.”
30.The Civil Miscellaneous Appeal is allowed with the 45/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 directions to the Tribunal and the Medical Board to follow the directions as set out in Para 29 supra. No costs. Consequently, connected Miscellaneous Petition is closed. The Specimen Disability Certificate shall also be annexed and circulated with the order to all the Motor Accidents Claims Tribunals and Medical Boards / Deans of the Government Hospitals.
This Court wishes to place its appreciation for the assistance rendered by Mr.Edwin Prabhakar, learned Special Government Pleader, in this case.
31.03.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
Note to Office:
The Specimen Disability Certificate shall also be annexed and circulated with the order.
Enclosed:
Specimen Disability Certificate 46/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 To The V Judge, Motor Accidents Claims Tribunal, Court of Small Causes, Chennai.
47/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 P.T. ASHA, J, mps C.M.A.No.345 of 2022 31.03.2022 48/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 49/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 50/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 51/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 52/53 https://www.mhc.tn.gov.in/judis C.M.A.No.345 of 2022 53/53 https://www.mhc.tn.gov.in/judis