Delhi High Court
National Insurance Co. Ltd. vs Sanjay & Ors on 12 January, 2018
$~12
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th January, 2018
+ MAC.APP. 894/2012
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Advocate with
Mr. Himanshu Joshi, Advocate
versus
SANJAY & ORS ..... Respondents
Through: Mr. Santosh Chaurihaa, Advocate
with Mr. M.A. Khan, Adv. &
Mr. Minendra Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The first respondent was the claimant before the motor accident
claims tribunal in accident claim case (MACT No.942/10/07),
instituted on 14.03.2008, seeking compensation for the injuries
suffered in a motor vehicular accident that had occurred on
31.10.2007, involving negligent driving of water tanker bearing
registration No.DL-1GB-3548, admittedly insured against third party
risk for the period in question with the appellant (the insurer). The
tribunal held that the injuries had been sustained and consequently the
claimant had been rendered permanently disabled due to negligence
on the part of the driver of the water tanker. It awarded compensation
in the total sum of Rs.11,26,018/-, calculating it thus:-
Sl.No. Head Amount (in Rs.)
1. Loss of income for 12 months 42,192/-
2. Future medical expenses 50,000/-
3 Loss of future income, etc. 7,08,826/-
4. Special diet 50,000/-
5. Conveyance 25,000/-
6. Pain and sufferings and trauma 1,00,000/-
7. Loss of amenities & enjoyment of life 1,50,000/-
Total 11,26,018/-
2. The tribunal directed the insurer to pay the aforesaid amount
with interest @ 9% per annum, also adding the liability of payment of
Rs.51,000/- towards lawyers' fee and Rs.4,000/- as out of pocket
expenses for the counsel for the claimant.
3. The insurer filed the present appeal and presses it taking
exception to the assessment of the functional disability at 70%
pointing out that this is way above the medical opinion about the
physical disability in relation to the right lower limb. Exception is also
taken to the directions for payment of lawyers' fee and out of pocket
expenses.
4. Having heard the counsel on both sides and having gone
through the record, this court finds that the most serious injuries
suffered leading to the disability factor was in the form of crush injury
in the right lower foot. The claimant underwent surgical procedure in
the course of which plates had to be inserted. The tribunal's record
shows that the claimant was examined by a board of doctors of Sanjay
Gandhi Memorial Hospital, Govt. of NCT of Delhi on 18.03.2010,
which issued the disability certificate (Ex.PW-1/2) opining the
physical impairment to be 44% in relation to the right lower limb. The
claimant was again examined by another board of doctors of Dr. Baba
Saheb Ambedkar Hospital on 07.05.2011, which issued disability
certificate affirming the permanent physical impairment describing it
as post-traumic stiffness of the ankle and evaluating permanent
disability to be 36% in relation to the right lower limb. This certificate
is available on the record of the tribunal (page 187). The claimant was
yet again examined by another board of doctors of the Department of
Physical Medicine and Rehabilitation of All India Institute of Medical
Sciences (AIIMS) on 27.06.2011 which issued its report (Ex.PW-6/X).
As per this opinion, the claimant was found to be a case of post-
traumatic deformity of the right ankle and foot with chronic
osteomyelitis and difficulty in activities of daily living, his physical
impairment having been found to be 40% in relation to the right lower
limb. Pertinent to note, as per this opinion the evaluation required
reassessment after five years.
5. Faced with the above material on record, particularly the fact
that the second evaluation dated 07.05.2011 by board of doctors of Dr.
Baba Saheb Ambedkar Hospital has not even been noted by the
tribunal in the impugned judgment, and the fact that the evaluation by
the board of doctors of AIIMS rendered on 27.06.2011 itself indicated
that it was not final evaluation, have escaped notice of the tribunal, the
counsel appearing for the claimant submitted he may be sent for final
re-evaluation by a board of doctors.
6. In these facts and circumstances, it is clear that the tribunal has
rushed into passing the award without securing appropriate and
definitive medical opinion. In this view, the impugned judgment
cannot be upheld. It is, therefore, set aside. The claim case is remitted
to the tribunal for further proceedings in accordance with law. During
further proceedings, the tribunal will make appropriate arrangement
for proper evaluation of the disability of the claimant and pass a fresh
award thereupon.
7. In terms of order dated 27.08.2012, the insurance company had
deposited the awarded amount excluding the counsel's fee and out of
pocket expenses with upto date interest with UCO bank, Delhi High
Court Branch and out of such deposit, 50% has already been directed
to be released to the claimant. The amount already released to the
claimant will be subject to adjustment or appropriate directions to be
given by the tribunal in the fresh judgment to be passed. The balance
lying in deposit with accrued interest along with statutory deposit shall
be refunded to the appellant.
8. The parties are directed to appear before the tribunal on 26 th
February, 2018.
9. The appeal is disposed of in above terms.
R.K.GAUBA, J.
JANUARY 12, 2018
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