Madras High Court
The Manager vs Moorthy on 14 July, 2023
Author: C.Saravanan
Bench: C.Saravanan
CRP(MD)NO.1148/2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 06.06.2023
PRONOUNCED ON : 14.07.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1148 of 2022
and C.M.P(MD).Nos.4706 & 8012 of 2022
The Manager,
Bajaj Allianz General Insurance Co., Ltd.,
No.12, G, Ramnagar, Bypass Road,
Ponmeni, Madurai. ... Petitioner
Vs.
Moorthy ... Respondent
Prayer : Civil Revision Petition is filed under Article 227 of Constitution of
India, to call for the records and set aside the fair and decretal order dated
11.03.2020 made in I.A.No.1 of 2022 in M.C.O.P.No.31 of 2017 on the file
of the Motor Accident Claims Tribunal ( Sub Court) Muthukulathur.
For Petitioner : M/s.K.R.Shiva Shankari
For Respondent : Mr.D.Senthil
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CRP(MD)NO.1148/2022
ORDER
The petitioner is aggrieved by the impugned fair and decretal order dated 11.03.2022 passed by the Motor Accident Claims Tribunal (Sub Court), Muthukulathur in I.A.No.1 of 2022 in M.C.O.P.No.31 of 2017.
2. The relevant portion of the impugned order reads as under:
“(,) kDjhuh; Fwpg;gpLk; Assessment and Certification Guidelines and explanation published by National Institute for the Orthopaedically Handicapped topfhl;Ljypd;gb jhd;
Nkw;nrhd;d kUj;Jtf;FO Ma;T nra;J
Nkw;fz;l rhd;wpid toq;fpAs;sJ. k.rh.M.16
Mf Vw;fdNt toq;fg;gl;l ,ayhik rhd;wpy;
Fwpg;gpl;Ls;sij tpl mjpfkhd ,ayhikia
Fwpg;gpl Ntz;ba mtrpak; ,y;iy vd gioa
rhd;wpjioAk; Ma;T nra;J> fhak;gl;l
egiuAk; Ma;T nra;J njspthd Kbit
vOjp Nkw;nrhd;d kUj;Jt rhd;wpjo;
eP.k.rh.M.1 toq;fg;gl;bUf;fpwJ. mjpy;
Nkw;nrhd;d topfhl;Ljy; Fwpj;J mjd;gb
Ma;T nra;jjhf Fwpg;gpltpy;iy vd;w xU
fhuzj;jpw;fhf kUj;Jtf; FOtpd; jiytiu
tutiof;f Ntz;ba mtrpak; ,y;iy.”
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3. By the impugned order dated 11.03.2022, the Motor Accident Claims Tribunal (Sub Court), Muthukulathur had dismissed the I.A.No.1 of 2022 filed by the petitioner to summon the Expert from the Medical Board who had given the Disability Certificate dated 02.03.2021 bearing Ref.No. 6636/G4/2021. By the Disability Certificate dated 02.03.2021 bearing Ref.No.6636/G4/2021, the Medical Board has confirmed the opinion given by the Orthopaedic Department that the respondent (the claimant before the Tribunal) has a maximum disability of 40% and require no additional disability as per the functional status. The Medical Board has further confirmed the injuries suffered are grievous in nature.
4. Relevant portion of the said Disability Certificate dated 02.03.2021 reads as under:-
Patient underwent bypass surgery for the popliteal artery injury and proximal poplitear to mid/distal poplitear bypass. Which is functioning. He has underwent fasciotomy and debridement of the calf muscles, after that, and skin cover given.As of now the graft (bypass) is functioning so that limb is 3/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 salvaged. All the functioning status the disability is given by Orthopedic Department as 60% hold good. He has the maximum disability. No need for additional disability as per the functional status. The injuries are grievous in nature.”.
5. The learned counsel for the petitioner submits that the Disability Certificate of the Medical Board has assessed excessive disability and therefore will result in grant of excess compensation to be paid to the respondent-claimant. It is therefore submitted that the petitioner should be allowed to summon the Head of the Medical Board for cross examination to discredit the opinion given in the aforesaid Disability Certificate.
6. The learned counsel for the petitioner has referred to the following cases,
(i) The Branch Manager, TATA AIG General Insurance Co. Ltd. Vs. Prabhu and Another, 2016 (1) TN MAC 609 (DB)
(ii) Oriental Insurance Co. Ltd. Vs. Minor Giridharan&Anr., 2020 (1) TN MAC 671and
(iii)G. Arockiya Doss Vs. S. Syed Ibrahim and Anr, 2022 (2) TN MAC 229.
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7. The learned counsel for the petitioner further submits that the Disability Certificate issued was not in compliance with the guidelines issued by the Central Government in the exercise of power conferred on it under Section 56 of the Rights of Persons with Disabilities Act, 2016. The learned counsel for the petitioner submits that the decision of this Court in G.Arockiya Doss Vs. S.Syed Ibrahim and others, 2022 (2) TN MAC 229 reiterates the views in the other two cases and has specifically given a direction to the Medical Board to issue a Disability Certificate as per the annexed Specimen Disability Form. It is submitted that the Medical Board and the Tribunal have followed the above directions.
8. The learned counsel for the petitioner submits that the Disability Certificate issued by the Medical Board is not in compliance with the requirements of the guidelines given in G. Arockiya Das Vs. S. Syed Ibrahim and Others, 2022 (2) TN MAC 229.
9. The learned counsel for the petitioner submits that earlier, taking note of rampant practice of stock witnesses giving exaggerated Disability 5/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 Certificates, the Hon’ble Division Bench of this Court passed order in The Branch Manager, TATA AIG General Insurance Co. Ltd. Vs. Prabhu and another, 2016 (1) TN MAC 609 (DB) and give guidelines. However, despite the above guidelines provided, “Disability Certificates” are being issued by the Medical Board contrary to the guidelines which results in excess compensation being awarded to the claimants.
10. Per contra, the learned counsel for the respondent submitted that the “Disability Certificate” issued was in compliance with the guidelines issued by the Ministry of Social Justice & Empowerment, Government of India on 13.06.2001 published by the National Institute for the Orthopaedically Handicapped, Kolkata although not in the format.
11. It is submitted that the format of the subjected “Disability Certificate” dated 02.03.2021 was in compliance with the guidelines which is being followed uniformly by the Medical Board. The learned counsel for the respondent refers to guidelines and Gazette Notifications issued by the Government of India and therefore submits that there is no scope for interference with the impugned order.
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12. I have considered the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondent.
13. The guidelines issued by the Hon’ble Division Bench of this Court, in The Branch Manager, TATA AIG General Insurance Co. Ltd. Vs. Prabhu and others, 2016 (1) TN MAC 609 (DB) and Oriental Insurance Co. Ltd. Vs. Minor Giridharan and another, 2020 (1) TN MAC 671has been followed inG.Arockiya Doss Vs. S.Syed Ibrahim and another, 2022 (2) TN MAC 229.
14. The Certificate issued by the Medical Board is an opinion of an “Expert”. These decisions have been rendered with a view to discourage and put an end to the practice of private physicians as witnesses giving Certificate of Disability to facilitate the claimants to claim higher compensations from the Tribunal. Certificate of Medical Board is akin to the opinion of an Expert under Section 45 of the Indian Evidence Act, 1872. 7/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022
15. As per Section 45 of the Indian Evidence Act, 1872, when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impression are relevant facts. The illustration in Section 45 of the Indian Evidence Act, 1872 shows an opinion of a physician is also an opinion of an expert.
16. The Hon’ble Supreme Court in, Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 has held under:
16. We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence 8/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 which may not be very favourable.
This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them.
17. The Apex Court has also repeatedly held that the opinion of an expert is merely an opinion and advisory in nature and not binding on the Court. The Court has to form its own opinion considering the material data, and the opinion on the technical aspects rendered by the Medical Expert [seeMadan Gopal Vs. Naval Dubey (1992) 3 SCC 204]. 9/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022
18. A witness can be examined under Chapter X of the Indian Evidence Act, 1872. Although Expert from the Medical Board or the Court witness can also be cross-examined, the procedure to be followed by the Claim Tribunal is summary in nature. The Claim Tribunal has to follow the procedure under the provisions of Code of Criminal Procedure, 1973 with an object of speedy disposal of claim petitions. In a Summary Trial, recovering of deposition with minute intricacy is not warranted.
19. In this context, Rules 16, 17 & 25 of the Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989 are relevant. They read as under:-
Rules 16 & 17 10/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 Rule 16 Rule 17
16.(1)The Claims Tribunal After considering any written may, if it thinks fit, co-opt statement, the evidence of the one or more persons witness examined and the result of possessing special any local inspection, the Claims knowledge with respect to Tribunal shall proceed to frame any matter relevant to the and record the points upon which inquiry. Such persons should the right decision of the case not sit as member (s) of the appears to it to depend.
Claims Tribunal but should render such assistance as it required to hold the inquiry.
(2)The remuneration, if any, to be paid to the persons co-
opted shall, in every case, be determined by the Claims Tribunal.
Rule 25:-
25.(1)The Claims Tribunal shall follow the procedures of summary trial as contained in the Code of Criminal Procedure 1973 (Central Act 2 of 1974) for the purpose of adjudicating and awarding a claim under Chapter X of the Act.
(2) The Claims Tribunal shall give notice to the owner and the insurer, if any, of the vehicle involved in the accident, directing them to appear on a date not later than 10 days from the date of issue of notice. The date so fixed for such appearances shall also be not later than 15 days from the receipt of the claim application filed by the claimant. The Claims Tribunal shall state in such notice that in case they 11/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 fail to appear on such appointed date, the Claims Tribunal shall proceed exparte on the presumption that they have no contention to make against the award of compensation.
(3) The Claims Tribunal shall obtain whatever information necessary from the police, medical or other authorities and proceed to award the claim whether the parties who were given notice appear or not on the appointed date.
(4) The Claims Tribunal shall proceed towards the claims on the basis of—
(i)Registration Certificate of the motor vehicle involved in the accident;
(ii) Insurance Certificate or policy relating to the insurance of the motor vehicle against third party risks;
(iii) Copy of the first information report;
(iv) Post-mortem certificate or certificate of injury as the case may be from the medical officer;
(v) The nature of the treatment given by the medical officer who has examined the victim.
(5)The Claims Tribunal before whom an application for award of compensation on liability arising out of the provisions of Chapter X of the Acthas been made shall dispose of such an application within 45 days from the date of receipt of such application. (6)The procedure of adjudicating the liability and award of compensation may be set apart from the procedure of disbursement of compensation to the legal heirs in case of death. Where the Claims Tribunal feels that the actual payment to the claimant is likely to take time because of the identification and the fixation of the legal heirs of the deceased the Claims Tribunal 12/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022 may call for the amount of compensation awarded to be deposited with the Claims Tribunal and then proceed with the identification of the legal heirs for deciding the payment of compensation to each of the legal heirs. The contingency shall not arise in the case of adjudication and payment of compensation in the case of permanent disablement.
20. Although, there is no impediment in allowing the cross- examination, it would not be prudent to summon the Medical Board, as large number of claim petitions are filed before the Claim Tribunals. Further, if these Experts from the Medical Board are summoned, they will be left with no time to assess and / or give proper Disability Certificates.
21. The Division Bench of this Court in The Branch Manager, TATA AIG General Insurance Co. Ltd. Vs. Prabhu and others, 2016 (1) TN MAC 609 (DB) has expressed a word of caution that only in exceptional cases, such witnesses can be summoned. “Certificate of Disability” issued by the Medical Board although not in the Standard format prescribed by the Ministry of Social Justice & Empowerment, it contains all the details that are required as prescribed in the format of the certificate and the format of the Certificate is not determinative of the substance of Disability. 13/15 https://www.mhc.tn.gov.in/judis CRP(MD)NO.1148/2022
22. That apart, the Tribunal can co-opt one or more persons possessing special knowledge with respect to any matter relevant to the inquiry. Therefore, there are sufficient internal mechanisms under rules to protect the interests of the parties.
23. Therefore, I do not find any reasons to interfere with the impugned order. The present Civil Revision Petition is liable to be dismissed and is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is closed.
14.07.2023
Index : Yes/No
Internet : Yes/No
Speaking : Non Speaking Order
kkd
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CRP(MD)NO.1148/2022
C.SARAVANAN,J.
Smn2/kkd
To
The Sub Court,
Muthukulathur.
Pre-delivery Common Order in
CRP.(MD)No.1148 of 2022
14.07.2023
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