May 22, 2018

Tribunal has to refer the Claimant to Medical Board for assessing the Disability [Case Law]

Motor Accidents Claims - Disability Assessment - Medical Board - Tribunal has to refer the claimant to Medical Board for assessing the disability - In the absence of such assessment made by the Medical Board, the compensation assessed by the Tribunal is not just compensation.

(2018) 583 KLW 378
M.A.C.A No.4325 of 2017
Dated this the 22nd day of May, 2018
AGAINST THE AWARD IN OP(MV) NO.1902/2015 of M.A.C.T.,KOTTAYAM DATED 24-08- 2017 
This appeal is preferred against the award in OP(MV) No.1902/2015 of the Motor Accidents Claims Tribunal, Kottayam by the injured. On 25.11.2014, the appellant sustained serious injuries in a motor accident and the learned Tribunal awarded Rs.2,83,600/- as compensation. Being aggrieved by that, the injured preferred this appeal.
2. The appellant's case in the lower court was that, on the date of accident, while he was standing by the side of Sasri road, a lorry KL 07/R 5166 driven in a rash and negligent manner and its wheel ran over his right foot, thereby he sustained serious injuries. Immediately, he was removed to hospital. The driver and owner were set ex-parte. The insurer admitted the insurance of the vehicle. Claimant documents were marked as Exts.A1 to A16.
3. The learned counsel appearing for the appellant contended that the right leg was amputated and the application filed in the lower court for referring the claimant to the Medical Board has not considered by the Tribunal and the Tribunal himself assessed disability and awarded the compensation. The injured was working as watchman and was getting Rs.7,000/- per month. Just amount was not awarded by the Tribunal.
4. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. In Yadava Kumar v. D.M. National Insurance Co. Ltd.- 2010 (8) SCALE 567 Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: 
“We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.
10. In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand.” 
5. The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case.
6. Apex court in Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)] held as follows: 
“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. 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, 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, 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”.
The above guidelines shows that the Tribunal has to refer the claimant to Medical Board for assessing the disability. In the absence of such assessment made by the Medical Board, the compensation assessed by the Tribunal is not just compensation. In the circumstances, the award of the Tribunal is set aside. The appellant is directed to appear before the Tribunal. On such appearance, the Tribunal shall refer the claimant to the Medical Board and assess the disability and dispose the matter within 30 days from the date of receipt of the disability certificate. Any amount paid by the insurer shall be adjusted towards the final award amount. The parties are directed to appear before the Tribunal on 26.06.2018.
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