Delhi High Court
Santoshi vs Rajeev Choudhary & Ors. on 22 November, 2017
$~R-532
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 22nd November, 2017
+ MAC APPEAL 720/2012
SANTOSHI ..... Appellant
Through: None
versus
RAJEEV CHOUDHARY & ORS. ..... Respondents
Through: Mr. J.P.N. Shahi and Ms.
Komal Dhingra, Advocates
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant had suffered injuries in a motor vehicular
accident that occurred on 05.03.2006. The accident claim case (suit
no.549/10) was instituted on 01.06.2007 to seek compensation under
Section 166 of the Motor Vehicles Act, 1988. The Motor Accident
Claims Tribunal (Tribunal), by judgment dated 23.11.2011, while
accepting the case that the injuries had been suffered by her due to
negligent driving of Tata Sumo bearing registration no.DL-1V-3596
by the second respondent and holding him to be the principal tort
feasor, awarded compensation in the total sum of Rs.3,45,000/-, inter
alia, on the basis of conclusion that she suffers from permanent
functional disability to the extent of 20%. The liability to pay has
been fastened on the third respondent (insurer), which had concededly
issued an insurance policy covering third party risk in respect of the
said vehicle at the instance of the first respondent (registered owner of
the vehicle).
2. The appeal at hand was filed primarily to seek enhanced
compensation on the grounds that the functional disability should have
been treated as 100% in view of the disability certificate issued by a
board of doctors of All India Institute of Medical Sciences (AIIMS)
affirming that she is a case of traumatic brain injury suffering from
75% physical impairment.
3. The appeal was put in the list of „Regulars‟, to be taken up on
its own turn, by order dated 09.02.2016. When it is called out, there is
no appearance on behalf of the claimant / appellant. The matter has
been considered with the assistance of the counsel for the third
respondent and by perusal of the record of the inquiry before the
tribunal.
4. It is noted that the disability certificate (Ex. PW1/125) was
based on the evaluation that the claimant is a case of "traumatic brain
injury sequelae with severe cognitive dysfunction, right brachial
plexus injury and right optic atrophy". The injury to the eye was also
subjected to evaluation by eye specialist of Dr. Rajendra Prasad
Centre for Ophthalmic Sciences, All India Institute of Medical
Sciences by another certificate (Ex. PW1/123), it indicating that the
claimant has been rendered visually handicapped by 40%. The
disability certificate dated 21.07.2008 (Ex. PW1/125) ends with the
note saying that re-assessment was recommended after five years. It
appears that the tribunal did not take any steps for arranging re-
evaluation as was recommended.
5. In the above facts and circumstances, this court is of the opinion
that the matter requires further probe including by another evaluation
by a board of doctors of AIIMS. The impugned judgment is, thus, set
aside. The matter is remanded to the tribunal for further inquiry in the
course of which the claimant will be permitted to lead additional
evidence and also be subjected to fresh evaluation by a medical board
to be arranged by the tribunal.
6. Given the indication in the above record that the medical board
of AIIMS had observed that the claimant is a case of severe cognitive
dysfunction, the tribunal would be well advised to first assess as to
whether he is able to prosecute her interest on her own and, if need be,
appoint a next friend before proceeding further.
7. The parties are directed to appear before the tribunal on
21.12.2017.
8. Given the fact that the claimant has not appeared at the hearing
on the appeal, it is directed that in case there is default in appearance
on her behalf before the tribunal on the appointed date, it shall issue
necessary process to secure her presence.
9. The amount of compensation already received by the claimant
in terms of the impugned judgment, which has been set aside, will be
liable to be adjusted against the fresh award to be passed by the
tribunal.
10. The appeal is disposed of in above terms.
Dasti.
R.K.GAUBA, J.
NOVEMBER 22, 2017
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