Delhi High Court
Bajaj Allianz General Insureance ... vs Devki Nadan Kumar & Anr on 21 February, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 21st February, 2018
+ MAC.APP. 821/2017 and C.M. Appl. Nos.33274-75/2017
BAJAJ ALLIANZ GENERAL
INSUREANCE CO LTD ..... Appellant
Through: Mr. A.K. Soni, Advocate
versus
DEVKI NADAN KUMAR & ANR ..... Respondents
Through: Mr. R.K. Pandey and Mr. P.S. Jha,
Advocates for respondent No.1
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims Tribunal
whereby compensation of Rs.2,30,46,731/- has been awarded to respondent
No.1.
2. Respondent No.1 filed an application for compensation under
Sections 166 and 140 of the Motor Vehicles Act claiming compensation on
the averments that on 13th April, 2012 at about 01:45 p.m., he was going on
the motorcycle bearing registration No.DL-9S-AD-8844 from Dhaula Kuan
to his house when he was hit by car bearing No.DL-4C-AD-8162 from
behind near Pararde Ground Road, Delhi Cantt. whereupon he fell down and
suffered multiple grievous injuries; PCR van came to the spot and took him
to Safdarjung Hospital where his MLC was prepared; later on 16th April,
2012, he was admitted to Mata Chanan Devi Hospital and was discharged on
18th April, 2012; he thereafter took treatment from different hospitals; he
suffered loss of eye sight, loss of hearing, loss of memory power, loss of
smell power, six teeth broken, right hand fracture and other multiple injuries;
he claimed to have incurred Rs.20,00,000/- as medical expenses; he was
aged 47 years at the time of the accident and practicing before Supreme
Court as a panel lawyer for different banks and was earning Rs.2,50,000/-
per month.
3. The appellant is the insurer of the car bearing No.DL-4C-AD-8162.
The appellant disputed the accident and denied all the averments made in the
claim petition except that the offending vehicle was insured with the
appellant.
4. The Claims Tribunal framed the following issues on 08th July, 2013:
" 1. Whether Sh. Devki Nandan sustained injuries in a motor
vehicle accident dated 13.04.2012 due to rash and negligent
driving of vehicle no.DL 4C AD 8162 being driven by R1?
OPP
2. Whether the petitioner is entitled to claim compensation, if so,
what amount and from whom? OPP
3. Relief."
5. Respondent No.1 appeared in the witness box as PW-4 and reiterated
the averments made in the application for compensation. He deposed that he
was a practicing lawyer on panel of different banks i.e. Punjab National
Bank, Allahabad Bank, UCO Bank, United Bank of India, Oriental Bank of
Commerce, Punjab and Sind Bank and Canara Bank and his monthly income
was Rs.2,50,000/- per month at the time of the accident. The membership
card of the Bar Council and Supreme Court Bar Association was marked as
Ex.PW-4/1C, the Income Tax Return as Ex.PW-4/2, PAN Card as Ex.PW-
4/3, medical bills as Ex.PW-4/4, medical treatment record as Ex.PW-4/5,
conveyance charges as Ex.PW-4/6 and the estimated bills as Ex.PW-4/7 and
Ex.PW-4/8. Respondent No.1 filed an additional affidavit and deposed that
his treatment was continuing in various hospitals namely, AIIMS, Janak Puri
Super Specialty Hospital; Janak Puri Super Specialty Hospital, Neurology
Department; AIIMS Hospital ENT Department. Respondent No.1 was cross-
examined by respondent no.2 in person on 5 th May, 2014. However, the
Claims Tribunal closed the appellant's right to cross-examine respondent
no.1 on 25th July, 2017 by a cryptic order.
6. On 05th August, 2014, the appellant filed an application under Order
11 Rule 14 of the Code of Civil Procedure seeking production of the
following documents from respondent No.1: -
"1. Form 26AS of 3 financial years before the accident date and 3
financial years after the accident date.
2. ITR of 3 financial years before the accident dated and 3
financial years after the accident date
3. copy of statement of account for each financial year
4. copy of empanelment letters received by him from
organizations in which is a panel advocate
5. copy of proximity card used in Hon'ble Supreme court for entry
6. copy of orders (10 at least) pronounced by Hon'ble Supreme
Court showing his attendance in the matters"
The Claims Tribunal dismissed the aforesaid application vide order
dated 01st December, 2015.
7. Respondent No.1 examined PW-1 Rakesh Kumar, Medical Record
Clerk from Mata Chanan Devi Hospital, who produced the record of
hospitalization of respondent No.1 in Mata Chanan Devi Hospital from 16 th
April, 2012 to 18th April, 2012. The discharge summary, treatment record,
tests reports and medical bills totaling to Rs.18,839/- were marked as
Ex.PW-1/1 to Ex.PW-1/4. Respondent No.1 examined two chemists as PW-
2 and PW-3 from whom respondent No.1 claimed to have purchased the
medicines and the copies of their retail invoices were marked as Ex.PW-2/1
and Ex.PW-3/1.
8. Respondent No.1 examined Dr. Taru Dewan, Eye Specialist, Dr. Ram
Manohar Lohia Hospital, New Delhi as PW-5 who proved the documents
pertaining to the examination/investigation of respondent No.1 as Ex.PW-
5/A and report of the Medical Board constituted by the Medical
Superintendent of Dr. Ram Manohar Lohia Hospital, New Delhi.
9. Respondent No.1 examined Dr. R.P. Beniwal, Assistant Professor
(Psychiatry) from Dr. Ram Manohar Lohia Hospital, New Delhi as PW-6
who proved the discharge summary of respondent No.1 as Ex.PW-6/A and
report of the Medical Board constituted by the Medical Superintendent of
Dr. Ram Manohar Lohia Hospital, New Delhi as Ex.PW-6/B.
10. The Claims Tribunal did not permit the appellant to cross-examine
PW-6 on the ground that the appellant has filed an application dated 22nd
February, 2016 for seeking the opinion of the Medical Board on the
following important aspects: -
"(a) Disability assessed should be also only the disability caused due to
the accident and not the overall disability if any.
(b) Looking at the MLC, are the injuries grievous in nature? Grievous
that they might cause vision loss and hearing loss to the patient?
(c) Is it possible that his vision loss is due to some other reason and
not due to accident?
(d) Partial optic nerve damage has been mentioned. Have there been
conducted any tests to confirm of the same? Is it a consequence of
the accident?
(e) First CT scan done after the accident (13.04.2012) shows normal
study. MRI (21.05.2012) done after 1.5 months shows a different
scenario. Is it possible that the person had another accident in
between those days to cause such changes in the MRI or is it
possible for late changes to appear in the scans?
(f) A contrast MRI done on 16th June, 2012 again shows no
abnormality.
(g) Mild degenerative changes are seen in the articular surfaces of
distal radius and ulna, whereas no mention of hand injuries in the
first reports and MLC.
(h) A Perimetry analysis has been done which shows vision loss,
agreeable, no other tests mention optic nerve injury is it not? Is it
possible that this vision loss is due to some other reason?
(i) MLC does not mention any pain in tooth, however a month later,
the person has pain in tooth and removal of 4 teeth, looking at the
dental records."
11. The Claims Tribunal issued notice on above application to respondent
No.1 on 1st March, 2016 but no reply was filed by respondent No.1.
However, The Claims Tribunal however did not pass any order on the
aforesaid application filed by the appellant.
12. The appellant examined Dr. Sonune Vaibhav Bhaurao as R2W1 who
proved his opinion Ex.R2W1/2 according to which impairments sustained
by the appellants were not the result of road accident; the injuries sustained
in the road traffic accident were of simple nature and the impairments
allegedly sustained could be a result of pre-existing disease of appellant.
13. Vide order dated 01st December, 2015, the Claims Tribunal directed
Medical Superintendent of AIIMS to constitute a Medical Board to examine
respondent No.1 with regard to his injuries/ various medical problems
suffered by respondent No.1 in the road accident dated 13th April, 2012, in
pursuance to which AIIMS constituted a Board and submitted its report
dated 05th December, 2016 to the Claims Tribunal.
14. The Claims Tribunal held that respondent No.4 suffered injuries in the
accident dated 13th April, 2012 caused by rash and negligent driving of
respondent No.2 on the basis of which FIR No.93/2012 under Sections
279/337 IPC was registered by the police. The Claims Tribunal awarded
Rs.3,42,240/- towards the medical expenditure, Rs.2,97,500/- towards the
attendant charges, Rs.3,67,500/- towards conveyance, Rs.1,00,000/- towards
special diet, Rs.10,29,269/- towards future treatment, Rs.1,50,000/- towards
pain and suffering and Rs.1,50,000/- towards loss of enjoyment of life and
Rs.10,00,302/- towards loss of income. The Claims Tribunal took the
income of respondent No.1 as Rs.20,00,604/- per annum, added 30%
towards future prospects, applied the multiplier of 13, took the functional
disability of 58% and awarded Rs.1,96,09,920/- towards loss of earning
capacity. The total compensation awarded by the Claims Tribunal is
Rs.2,30,46,731/-. The Claims Tribunal further awarded interest @ 10% per
annum on the award amount except on Rs.10,29,269/- towards future
treatment.
15. Learned counsel for the appellant urged the following submissions at
the time of the hearing of the appeal: -
15.1. The impugned award passed by the Claims Tribunal is perverse and
contrary to the well settled principles of law and procedure.
15.2. Respondent No.1 claims to have met with an accident on 13th April,
2012 and was taken by PCR to Safdarjung Hospital where his MLC was
recorded and he was discharged on the same day. The investigating officer
visited the hospital to record the statement of respondent No.1 who neither
gave any statement nor lodged any complaint. After two days of the
accident day i.e. 16th April, 2012, respondent No.1 was admitted in Mata
Chanan Devi Hospital where he remained upto 18th April, 2012. On 21st
April, 2012 i.e. after 8 days of the alleged accident, respondent No.1 visited
the police station to lodge an FIR against car bearing registration No.DL-4C-
AD-8162 which was insured with the appellant. Respondent no.1 did not
examine any independent witness to prove the accident.
15.3. There appears to be a clear collusion between the respondent No.1 and
respondent No.2 which is clear from the fact that respondent No.1
compounded the matter with respondent No.2 by accepting compensation of
Rs.25,000/- before the learned Metropolitan Magistrate. Respondent no.2
appeared in person before the Claims Tribunal and cross-examined the
respondent no.1 to support the case of respondent no.1. It is also pertinent to
mention that the police registered the case of simple injuries under Section
279/337 IPC and the respondent No.1 did not raise any objection for not
adding Section 338 IPC which refers to the grievous injuries.
15.4. The alleged accident resulted in simple injuries to respondent No.1
which is clear from the MLC recorded by Safdarjung Hospital. According to
that MLC, respondent No.1 suffered abrasion on left and right elbow,
abrasion on left and right hand, abrasion on middle finger and ring finger of
left hand, abrasion on right and left knee, abrasion on right ankle, swelling
of middle finger of left hand. Respondent No.1 has not suffered the alleged
disabilities because of the alleged accident. Respondent No.1 has not led any
evidence whatsoever to prove that the alleged disabilities resulted from the
alleged road accident dated 13th April, 2012.
15.5. Respondent No.1 has raised a false claim with respect to his income
of Rs.2,50,000/- per month. Respondent No.1 filed copy of Income Tax
Return for the year 2012-13 six months after the accident i.e. 06th October,
2012 in which he declared his income to be Rs.20,00,604/- per annum.
However, the copies of the balance sheet, profit and loss account and other
documentary evidence in support of Income Tax Return were not placed
before the Court. Respondent No.1 claimed to be a practicing lawyer at
Supreme Court as a panel lawyer with different banks such as Punjab
National Bank, Allahabad Bank, UCO Bank, United Bank of India, Oriental
Bank of Commerce, Punjab and Sind Bank and Canara Bank but no
document to show his empanelment was produced; no order sheet with
respect to his Court appearance or any document with respect to the payment
of professional fees or even deduction of TDS was produced before the
Claims Tribunal. Respondent No.1 also failed to produce the ITRs for the
last three years before the date of accident.
15.6. The Claims Tribunal recorded the statement of respondent No.1 on
02nd August, 2017 when he admitted that he was having income from
ancestral property and interest from the FDRs. The single Income Tax
Return filed six months after the accident without producing the copies of
the previous Income Tax Returns and without producing the balance sheet
and profit and loss account coupled with the statement made by respondent
No.1 before the Claims Tribunal that the source of his income was ancestral
property and interest from the FDRs, was not sufficient to prove his
professional income. Moreover, in the admission form of Mata Chanan Devi
Hospital Hospital, the income of respondent No.1 has been declared as
Rs.35,000/- per month.
15.7. The appellants' application under Order 11 Rule 14 of the Code of
Civil Procedure seeking production of the relevant documents by respondent
No.1 was dismissed by the Claims Tribunal in an erratic manner.
15.8. The Claims Tribunal has taken the functional disability of respondent
No.1 as 58%. However, no medical expert was examined by respondent
No.1 to prove that the alleged disabilities occurred due to the alleged road
accident. Respondent No.1 has long standing history of diabetes.
15.9. The Claims Tribunal erred in not considering the evidence of medical
expert R2W1, Dr. Sonune Vaibhav Bhaurao who proved his opinion
Ex.R2W1/2 that the impairments sustained by respondent No.1 were not the
result of road accident, as the injuries sustained in the road traffic accident
were of simple nature.
15.10. The Claims Tribunal awarded Rs.10,29,269/- towards the future
treatment without any evidence in support thereof.
15.11. The Claims Tribunal erred in awarding Rs.2,97,500/- towards
attendant charges. No evidence was led by respondent No.1 to prove the
payment of the alleged attendant charges made to the attendant.
15.12. The Claims Tribunal awarded Rs.3,67,500/- towards conveyance and
Rs.1,00,000/- special diet without any evidence in support thereof.
15.13. The award of loss of earning capacity of Rs.1,96,09,920/- as well as
Rs.10,00,302/- towards loss of income is perverse and not based on any
evidence.
15.14. The compensation of Rs.1,50,000/- towards pain and suffering and
Rs.1,50,000/- towards loss of enjoyment of life is exorbitant.
15.15. The Claims Tribunal has awarded interest @ 10% per annum which is
on a higher side considering that this Court is consistently awarding interest
@ 9% per annum.
16. The appellant has filed an application under Order 41 Rule 27 of the
Code of Civil Procedure for permission to lead additional evidence. The
appellant seeks setting aside of the order dated 1st December, 2015 passed by
the Claims Tribunal whereby the appellant's application under Order 11
Rule 14 of the Code of Civil Procedure was dismissed by the Claims
Tribunal. The appellant also seeks the opinion of the Medical Board in
terms of the application dated 22nd February, 2016, which was not decided
by the Claims Tribunal. Learned counsel for the appellant seeks permission
to cross-examine respondent No.1 (PW-4) on the ground that the cross-
examination was closed by the Claims Tribunal by an erratic order dated 25th
July, 2017. Learned counsel for the appellant also seeks to cross-examine
Dr. R.P. Beniwal (PW-6) who was not permitted to be cross-examined by
the Claims Tribunal.
17. Learned counsel for the respondent no.1 urged at the time of hearing
that the respondent No.1 duly proved his entire claim before the Claims
Tribunal and the Claims Tribunal had awarded a fair compensation in
accordance with law.
Findings
18. This Court is of the view that the Claims Tribunal gravely erred in
closing the cross-examination of respondent No.1 (PW-4) by the appellant
on 25th July, 2017. The Claims Tribunal also erred in not permitting the
appellant to cross-examine Dr. R.P. Beniwal (PW-6). The order dated 25th
July, 2017 is set aside and the appellant is permitted to cross-examine
respondent No.1 (PW-4) and Dr. R.P. Beniwal (PW-6) before the Claims
Tribunal.
19. The Claims Tribunal gravely erred in dismissing the appellant's
application under Order 11 Rule 14 of Code of Civil Procedure on 1st
December, 2015. The order dated 1st December, 2015 is perverse and
hereby set aside. The appellant's application under Order 11 Rule 14 of the
Code of Civil Procedure is allowed and respondent No.1 is hereby directed
to produce all the documents mentioned in the application under Order 11
Rule 14 of the Code of Civil Procedure before the Claims Tribunal.
20. The Claims Tribunal also erred in not deciding the appellant's
application dated 22nd February, 2016 seeking opinion of the medical experts
on the questionnaire mentioned in the application. The application dated
22nd February, 2016 is allowed and the Medical Board of Safdarjung
Hospital is directed to examine the respondent No.1 and give opinion on the
questionnaire reproduced in para 10 above. The Medical Board shall also
give opinion as to whether respondent no.1 has suffered any disability from
the injuries suffered in the road accident dated 13th April, 2012.
21. Respondent No.1 has not examined any independent witness to prove
the factum of alleged accident which was necessary considering that the
respondent No.1 did not lodge any compliant on 13 th April, 2012 and the
FIR was lodged 8 days after the accident. There is no explanation on record
for the delay in lodging the FIR.
22. On 13th April, 2012 at about 12:30PM, the respondent was taken by
the PCR van to Safdarjung Hospital where his MLC was prepared at about
02:55 P.M. As per the MLC, respondent No.1 suffered simple injuries
namely abrasion on left and right elbow; abrasion on left and right hand;
abrasion on middle finger and ring finger of left hand; abrasion on right and
left knee; abrasion on right ankle and lat moleoles and swelling of middle
finger of left hand. As per the MLC, respondent No.1 did not suffer any head
injury or injuries on the face and dental region and the nature of injuries
suffered by the respondent No.1 were simple in nature and not of grievous
nature. Safdarjung Hospital discharged respondent No.1 after prescribing
medicines for the simple injuries the same day. The relevant portion of the
MLC issued by Safdarjung Hospital is reproduced hereunder:-
"Particulars of Patient: MLC No. Cl 589849 - 2:55 PM Date of Examination 13-4-12
Name Devki Nand Father Name Ganga Prasad
Age 57 Religion Occupation
Residence RZ D-3/63 Palam
Marks of identification Black mole on the left side nose
PARTICULARS OF INJURY OR SYMPTOMS AND SIGNS IN CASE OF POISONING
abrasion on left and right elbow
Brought by PCR abrasion on left and right hand
abrasion on middle and ring figure of
A/H/O - RTA left hand
abrasion on right and left knee
Date and Time of injury - 13/4/12 at 12:30 PM abrasion on right ankle and lat
moleoles
H/o - LOC for 15 minutes
swelling of middle finger of left hand.
No H/o - Vomiting ENT Bleed
O/E - Pt. is conscious, oriented Adv- A/S/O - 105
Pulse =80/min Inj. Tetvac 1ap1/m
Inj. Tetvac 1ap1/m
BP =126/80
X ray both hand
GCS =15/15
Ref to NS ward 4
Ref to EOJ 31 after wd A Clearance
Blunt
Nature of injuries...................... " Simple / grievous / or Dangerot/s
...............
23. On 16th April, 2012, respondent No.1 went to Mata Chanan Devi
Hospital with the complaint of chest pain, anxiety, sweating, body ache mild
abdomen pain. The hospital conducted x-ray of right hand and right shoulder
which were normal. The X-ray of right ankle was also done which was also
normal. The hospital further conducted X-ray of right hand and wrists which
showed an old fracture of right distal radius. The hospital also conducted
NCCT head, ECG Kidney and Urine and CBC tests which were all normal.
Respondent No.1 was discharged from the hospital on 18 th April, 2012 in a
stable condition. The discharge summary of respondent no.1 issued by Mata
Chanan Devi Hospital records that respondent no.1 responded well to the
treatment given.
24. Respondent No.1 claims to have suffered 50% disability in intellectual
impairment, 40% visual disability, 84% hearing disability and mild
weakness in right hand grip. However, no medical expert has been examined
by respondent No.1 to prove that the aforesaid disabilities have resulted
from the injuries suffered by respondent No.1 in the road accident dated 13th
April, 2012.
25. Respondent No.1 is relying on the disability certificate dated 05th
December, 2016 issued by AIIMS. However, no medical expert from AIIMS
has been examined by respondent No.1 to prove that the disabilities
mentioned in the disability certificate dated 05th December, 2016 resulted
from the injuries suffered by respondent No.1 in the accident dated 13 th
April, 2012.
26. Respondent No.1 examined Dr. Taru Dewan, Eyes Specialist from
Ram Manohar Lohia Hospital as PW-5 who deposed that respondent No.1
has 40% visual disability due to damage to right optic nerve. However, PW-
5, Dr. Taru Dewan admitted in cross-examination that he did not examine
the MLC or the discharge summary of respondent no.1. PW-5 admitted in
cross-examination that the damage to right optic nerve can be pre-existing or
due to some other reason. PW-5, therefore, did not prove the respondent's
claim of having suffered visual disabilities due to the injuries suffered in the
road accident dated 13th April, 2012.
27. Respondent No.1 examined Dr. R.P. Beniwal, Assistant Professor
(Psychiatry) from Dr. Ram Manohar Lohia Hospital who proved the medical
report Ex.PW-6/B issued by Ram Manohar Lohia Hospital, New Delhi. PW-
6 was not subjected to cross-examination by the appellant and, therefore, his
testimony could not have been taken into consideration.
28. The Medical Report of Dr. Ram Manohar Lohia Hospital (Ex.6/B)
records that the poor vision on the left eye is not explainable by trauma,
however poor vision in right eyes may either be pre-existing or caused by
trauma. As such, the Medical Report does not prove the respondent's claim
of having suffered visual disabilities due to the injuries suffered in the road
accident dated 13th April, 2012. The Medical Report issued by Ram
Manohar Lohia Hospital, New Delhi dated 15th February, 2014 Ex.PW-6/B
is reproduced as under :-
"The board meeting was held on 29th November, 2013 in the
presence of all board members and the board opined as, the patient
complaint of poor vision in both eyes due to trauma. On the basis of
examination & investigations it is felt that poor vision on the left eye
is not explainable by trauma , however poor vision in right eyes may
either be preexisting or cause by trauma. His present disability on the
basis of present eye i.e. 6/36 in the better eye and 6/60 in worse eye is
40% which is not explainable by trauma . there was no other
disability detected
Signed Signed Signed
Dr.Satish Kumar Dr. Jyoti Garg Dr. Taru Dewan
Sr. Ortho Surgeon Neurologist Eye Specialist
(on leave) Signed Signed
Dr. Ashok Kumar Dr. Ajay Chaudhary Dr.R.P.Baniwal
ENT Specialist Neurosurgery Psychiatrist"
29. Respondent No.1 claims to have taken treatment from Dental World,
Jeewan Park, Uttam Nagar; Dr. Col APS - Ex Senior - Consultant, Mata
Channan Devi Hospital; Janak Puri Super Speciality Hospital; Ameda
Hospital; Dr. Suneja Mri & Diagnostic Centre; IBHAS, Dilshad Garden;
RML Hospital, Orthopaedic; G.B. Pant Hospital, GNCTD; Prime Speech &
Hearing Aid Centre; Jain Clinic; Dr. Ravi Manocha; Dr. Abha Bhatnagar;
Dr. Dharmesh Jain; Physiotherapy; AIIMS, Orthopaedic; AIIMS,Psychiatry;
AIIMS,Cardiothoracic and neuroscience Centre; AIIMS, ENT. However, no
doctor who treated respondent No.1 was examined as a witness.
30. The Claims Tribunal erred in not considering the evidence of Dr.
Sonune Vaibhav Bhaurao as R2W1 who proved his opinion as Ex.R2W1/2
which is reproduced as under:-
" ............... I am of the opinion that impairments sustained by
Sh. Devki Nandan Kumar, are not the result of road accident,
as the injuries sustained in the road traffic accident are of
simple nature, which are corroborated by supporting medical
documents.
Said impairments can be a result of pre-existing disease of Sh.
Devki Nandan Kumar."
Date c/o Hospital/ Diagnose Investigation Remarks
and doctor Treatment
document
provided
13/04/12 RTA Safdarjung I. I. Abrasion GSC 15/15
MLC Hospital on left and Patient
right elbow Conscious
II. Abrasion
on left and No head injury or facial
right hand orbital injuries were noted
III. Abrasion down, no nasal ENt bleeding
middle and notes were made.
ring figure of
left hand
IV. Abrasion
on right and
left knee
V. Abrasion
on right ankle
at lateral
moleoles
VI. Swelling
of middle
finger of left
hand
13/04/12 Discharge Patient is a known case of type
summary not 2 diabetis which is ,ost
provided possibly related ethiology for
his diminished vision as pe his
complains, the discharge
summary should contain the
records in the treatment
provided, discharge summary
is not been provided. Kindly
get the same.
17/05/12 c/o visual Govt of NCT Known Managed Note : Patient is a known case
OPD disturbanc delhi Regd Case DM with anti of DM, his subsequent
Ticket e no 12816 diabetic complains of diminished
/memory medictions. vision, syncopal intervals may
infringeme have a nexus with his BSL
nt from time to time. Generally
for a type 2 DM Eye damage
(retinopathy). Diabetes can
damage the blood vessels of
the retina (diabetic
retinopathy), potentially
leading to blindness. Diabetes
also increases the risk of other
serious vision conditions, such
as cataracts and glaucoma.
which may be cause of
diminished vision
17/10/12 Tingling Janakpuri Neuropat Neurobion Note : it takes around 3-5 yrs
Opd ticket sensation super hy prescribed for a DM patient to develop
of hand speciality neuropathy, though tingling
feet for 1- could be also noted if initial
2 months high levels uncontrolled BSL
tremors +
16/04/12 to Janakpuri CAD NCCT head Normal discharge
18/04/12 multi angina normal study,
discharge speciality
sheet
07/01/13 Consultant Note: No Not made NO nexus with RTA proved.
eye complains clear if he is
surgeon noted by suspecting
attending partial nerve
doctor n injury or
diagnosing.
Also the
injury he said
in his
statement
made.
08/01/13 Follow up Jain diabetic the conclusion is Conservative TT for Diabetes
DM centre prescripti not said to be
on letter RTA. no clear
statement
made.
30/01/13 Follow up Known
DM case DM
MLC of Safdurjung hospital Given On The day of RTA dated 13/04/12 at 12:30 pm:
1) RTA H/o LOC for 15 minutes
2) On examination at time of admission Patient was conscious, Oriented, Pulse :
80/min, BP : 126/80, GSC 15/15, No h/o vomiting, ENT bleed;
I. O/E Abrasion of right & left elbow
II. Abrasion right & left had
III. Abrasion middle & ring finger of hand
IV. Abrasion right and left knee
V. Abrasion right ankle at lateral maleolus
VI. Swelling of middle finger of left hand
Kindly note At the time of preliminary examination as per MlC on the said
day No Head injury or facial orbital injuries were noted down, no nasal
ENt bleeding notes were made.
In the later course of different admissions in the C/O loss of memory
Diminishing of vision
doesn't seem to have
nexus with the above
injuries on day of RTA."
(Emphasis Supplied)
31. Respondent No.1 claimed to have paid Rs.2,97,500/- to the attendant
and copies of cash bills were placed on record but the witness, who received
the alleged payment, was not examined.
32. The Claims Tribunal neither considered the contentions urged by the
appellant nor gave any reasoned finding in respect thereof. There is merit in
the contentions urged by learned counsel for the appellant before this Court
and they warrant serious consideration by the Claims Tribunal.
33. This Court is of the view that the insurance companies are duty bound
to verify every claim by appointing an Investigator to verify the genuineness
of the claim as well as the material particulars of the claim and a surveyor to
assess the loss suffered by the victim. In cases of grievous injuries, the
insurance companies should also get the injured examined by an
independent medical expert to examine the injured and verify the medical
claim of the injured. However, the appellant, in the present case, does not
appear to have appointed any Investigator or surveyor to verify and assess
the claim of respondent No.1.
Conclusion
34. For the reasons discussed hereinabove, the appeal is allowed,
impugned award is set aside and the case is remanded back to the Claims
Tribunal. Pending applications are disposed of.
35. The Claims Tribunal shall consider all the contentions of the appellant
and pass a fresh award, untrammeled by the observations made by the
Claims Tribunal in the award dated 2nd August, 2017.
36. The parties shall appear before the Claims Tribunal on 20th March,
2018 when respondent No.1 shall produce the documents mentioned in the
appellant's application under Order 11 Rule 14 of the Code of Civil
Procedure. Since respondent No.1 was first taken to Safdarjung Hospital on
the date of accident i.e. 13th April, 2012 and his MLC was recorded there,
the Medical Superintendent of Safdarjung Hospital is hereby directed to
constitute a Medical Board to examine respondent No.1 and give opinion as
to the disability suffered by respondent No.1 from the injuries suffered in the
road accident dated 13th April, 2012, untrammeled and uninfluenced by any
finding recorded in the earlier reports. The Medical Superintendent shall also
give opinion on the questionnaire prepared by the appellant, which is
reproduced in para 10 above. Respondent No.1 shall appear before the
Medical Superintendent of Safdarjung Hospital on 10th March, 2018 when
the Medical Superintendent shall intimate him the date of examination by
the Medical Board. The Medical Board of Safdarjung Hospital shall permit
the competent officer of the appellant and their medical expert to remain
present at the time of examination of respondent No.1. Respondent No.1 is
directed to produce his entire medical record before the Medical Board of
Safdarjung Hospital. The report of the Medical Board of Safdarjung Hospital
be submitted to the Claims Tribunal in a sealed cover within six weeks of
the examination of respondent No.1. The Claims Tribunal shall fix the case
for cross-examination of respondent No.1 (PW-4) and Dr. R.P. Beniwal,
Assistant Professor (Psychiatry) from Dr. Ram Manohar Lohia Hospital
(PW-6) after the receipt of the report of the Medical Board of Safdarjung
Hospital.
37. The record of the Claims Tribunal be returned back forthwith.
J.R. MIDHA
FEBRUARY 21, 2018 (JUDGE)
rsk
