Partly allowed

Iffco Tokio General Insurance Company Limited v. Sarfaraz and 2 Others

Allahabad HC28 Jan 2020FAFO/3685/2018

Case brief

AI extract

What is this about?

Insurance company appealed against a Motor Accident Claims Tribunal award granting 40% disability and ₹3,99,866 compensation. The court found the disability certificate premature and issued before treatment completion. It reduced the disability to 15% and adjusted the compensation award accordingly.

What did the court decide?

Award modified payable ₹2,37,866 including interest at 7%, instead of ₹3,99,866.

Iffco Tokio General Insurance Company Limited Vs… — Motor Accident Claims | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL FROM ORDER No. - 3685 of 2018

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Appellant :- Iffco Tokio General Insurance Company Limited Respondent :- Sarfaraz And 2 Others Counsel for Appellant :- Pawan Kumar Singh Counsel for Respondent :- Firoz Haider

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Hon'ble Vivek Agarwal,J.

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Heard Sri Pawan Kumar Singh, learned counsel for the appellant and Sri Firoz Haider, learned counsel for the respondent.

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This appeal under section 173 of the Motor Vehicles Act, 1988 has been preferred by the Insurance Company namely Iffco Tokio General Insurance Company Ltd being aggrieved by the award dated 24.4.2018 passed by learned Motor Accident Claims Tribunal / Additional District Judge, Court No. 5, Muzaffar Nagar (in short learned Claims Tribunal) in MACP No. 1884 of 2017 (Sarfaraz Vs. Dinesh Kumar and 2 others) and has directed that claimant shall be entitled to payment of Rs. 3,99,866/- alogwith 7% interest from the date of institution of claim petition.

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Learned counsel for the appellant submits that there are two components of the award. One is pertaining to the amount spent by the claimant in getting his treatment including loss of income for a period of 2 months, some pecuniary compensation for pain and suffering, nutritious diet prescribed etc and another component is loss of income in future treating disability of the claimant to be 40%. This part of the component whereby loss of income has been computed treating 40% permanent disability is under challenge. The counsel further submits that there is no dispute in regard to award totalling Rs. 1,40,666/- under other heads, however, as far as the loss of income component to the tune of Rs. 2,59,200.00 is concerned, has been computed arbitrarily.

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It is submitted that claimant had not produced any documents to show that he had taken any treatment at Green Hospital, Meerut or at District Hospital, Muzaffar Nagar. He had only produced medical prescription and treatment papers pertaining to the treatment taken by him at Medical College, Muzaffar

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Nagar. It is further submitted that the disability certificate which is annexed as Annexure-3 in the paper book, has been issued by the Medical Board constituted by the office of Chief Medical Officer, Muzaffar Nagar in which it is mentioned that there was Stiffness Right Ankle joint and disability has been certified at 40%.

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Reading examination-in-chief and cross examination of Dr. M.R. Singh (Orthopedic Surgeon) of District Hospital, Muzaffar Nagar, who is also one of the signatory to the disability certificate issued by the office of Chief Medical Officer, Muzaffar Nagar. It is pointed out that Dr. M.R. Singh has admitted that there was Stiffness in Right Ankle Joint. There was only 2-4% movement of ankle joint, which he discovered on clinical examination. He has also admitted that patient was not under his treatment. He was not in a position to say that whether patient was taking treatment elsewhere or not. It is further submitted that 40% disability has been certified towards ankle joint and not in proportion to the whole body. There is further admission that physiotherapy can help in improving percentage of disability. Doctor has refused to certify total percentage of disability vis-a-vis whole body. It submitted that after issuance of disability certificate, the patient never contacted him. He has also admitted that if patient is taking treatment then disability certificate can be given only after 6 months of such treatment. In view of such cross examination, it is submitted that when the Medical Board through its representative Dr. M.R. Singh admitted that they were not having any knowledge of treatment taken by claimant and further that when there is admission to the effect that there could have been improvement in the percentage of disability of claimant, if he undertakes physiotherapy, that means, that disability was not permanent but temporary in nature. Further 40% disability could not have been assessed in relation to the whole body and there is no finding as to the occupational disability suffered by the claimant on account of such accident.

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In view of such facts, it is submitted that total disability of 40% is taken by learned Claims Tribunal for computation of loss of income is incorrect and deserves to be brought down.

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Counsel for the respondents at this stage has shown X-Ray report of the claimant which is dated 6.9.2018. This X-Ray report is issued from one Arogya Digital X-Ray & Pathology, Sadar Bazar, Main Road, Muzaffar Nagar though this document produced by the appellant is not part of the record, but since appellant has no objection to such report, it is taken on record. In this X-ray report given by Arogya Digital X-Ray & Pathology, it is mentioned that old fracture was noted as “Calcaneum mild soft tissue swelling seen likely? Infective Etiology ? Cellulitis rest of the bone appears normal”. Thus no deformity of bone or any other part of the foot in regard to permanent damage to the bone is made out from the said X-ray report.

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In view of such facts and reading evidence led by Dr. M.R. Singh it is seen that disability could have been cured through physiotherapy meaning thereby it is not permanent disability. There is no evidence to the effect that said disability was noted by the Medical Board will contribute to the extent of 40 percent of the functional disability vis-a-vis job profile of the claimant coupled with the fact when Dr. M.R. Singh has admitted that disability certificate could have been issued after completion of 6 months of the treatment and not before it, whereas the date of issuing the disability certificate is 1.6.2017. Accident took place on 10.9.2016. Admittedly, as per normal healing of a bone fracture to “Calcaneum mild soft tissue swelling would have taken about 12 weeks (three months) for correction of such fracture. The medical certificate was issued prior to expiry of 6 months before treatment could be complete and stopped.

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Therefore, the court is of the opinion that disability of 40% of one lower portion of bone of the claimant could not have been construed to be overall functional disability of the claimant and under such facts and circumstances, it will be prudent, in absence of any other material available on record to construe such disability at 15% and compute loss of income treating total disability of the bone to be 15% rather than 40%.

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In view of such facts since learned Claims Tribunal has calculated loss of income to the tune of Rs. 2,59,200/- treating total loss of income at Rs. 6,48,000/- being 40% of total loss of income, the loss of income at 15% will

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come to Rs. 97,200/-. Therefore, claimant will be entitled to a sum of Rs. 2,37,866/- (Rs. 97,200 + Rs. 1,40,666) in place of Rs. 3,99,866/- as has been awarded by the learned Claims Tribunal. This amount will carry interest at the rate of 7% from the date of filing of the claim petition.

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In above terms, the appeal is partly allowed and award is modified suitably. Parties to bear their own costs.

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Order Date :- 28.1.2020 S.K.S.

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Iffco Tokio General Insurance Company Limited v. Sarfaraz and 2 Others

Case brief

What is this about?

What did the court decide?

Iffco Tokio General Insurance Company Limited v. Sarfaraz and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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