MODEL
FORMAT OF NOTES OF ARGUMENTS IN DISABILTY CASES BY THE INSURER
BEFORE THE
MOTOR ACCIDENTS CLAIMS TRIBUNAL, COURT,
PLACE.
MCOP ---- /20 .
Name of the petitioner ---- Petitioner.
VS
Name of the Respondent ---- 2nd Respondent.
Notes
of arguments on behalf of 2nd respondent above named.
This petition
has been filed by one ------- claiming compensation of a sum of Rs. ---------/
for the injuries sustained by her in a motor vehicle accident which took place
on ------- at about --- AM when the
petitioner was riding her motorcycle
bearing regn.no. ------ while
going to -------- met with accident with 1st respondent vehicle
bearing regn.no. --------.
Actually the
driver of the 1st respondent
vehicle was driving his vehicle carefully, slowly and by observing all
the rules of traffic, and when he was crossing ---------- , it was only the
petitioner who does not possess driving license to drive her vehicle suddenly
turned the vehicle to her right without noticing the oncoming bus from her left
carelessly, and the rider of the bus turned the wheel to his left to avoid
collision, even then the petitioner turned the wheel to her left and dashed
against the front side of the wheel mudguard of the bus and fell down and
sustained injuries. The petitioner does not have valid driving license to drive
her vehicle. She has only learner driving license to drive the vehicle. As per
MV act, When a person possessing learner driving license, drives the vehicle another person having valid driving
license should accompany them. Here no one accompanied her. The accident
occurred only due to rash and negligent driving of the petitioner herself. The
driver of the 1st respondent is in no way responsible for the
accident.
To prove
this, the driver of the 1st respondent vehicle, one Dhinakaran was
examined. He has clearly stated that he was driving his vehicle carefully and
by observing all the rules of traffic, it was only the petitioner who drove her
vehicle in rash and negligent manner hit at his vehicle and invited the
accident,
During cross examination the petitioner asked that FIR has been filed
only against him and he accepted the offence and paid fine. To that question he
replied that usually FIR is filed only against the big vehicle. Even though FIR
is filed against him, his evidence shows that only the petitioner has
carelessly came and hit against his vehicle. In 2016(2) TNMAC 175, it is
clearly stated that FIR is a weak peace of evidence if there is composite
negligence. Inconsistency and contradiction between FIR and statement of
oath, the statement of oath should be given evidentiary value. The
accident had occurred due to contributory negligence of the petitioner herself.
Hence this 2nd respondent is not liable to pay any amount of
compensation.
In this case the petitioner sustained right side
hip bone fracture. Percentage of disability fixed by the medical board is 92%.
Member of the medical board was examined. The doctor has generally stated the percentage
of disability but has not spoken about functional disability. Fixing of 92% for
the injuries sustained by her is excessive and exaggerated. Only when a person
is in vegetative condition, such heavy disability percentage will arise. In the
cross examination the petitioner had admitted that ‘I came inside the court
premises by walking. She is able to walk from the entrance of the court
complex till this hon’ble court. If she actually sustained 92% disability it
will not be possible. The petitioner was a typist before the accident. There
are no injuries in her hands. There is no difficulty for doing typist job.
Hence there is no functional disability. Only when there is functional
disability, multiplier method while calculation compensation is allowed. Since there is no functional disability,
multiplier method cannot be applied. Even now she is doing her work. In the
proof affidavit she had stated that ‘I cannot do my typist work as before’. She has not stated that she left the job.
Principles of assessment of loss of future earnings in view of extent of
permanent disability is discussed and explained in 2011(1) TAC 785 (SC) in Raj
kumar –VS—Ajay kumar and another by the division bench of the apex court. It
has clearly discussed that
1.
All injuries (or
permanent disabilities arising from injuries), do not result in loss of earning
capacity.
2.
The percentage of
permanent disability with reference to the whole body of a person, cannot be
assumed to be the percentage of loss of earning capacity. To put it
differently, the percentage of loss of earning capacity is not the same as the
percentage of permanent disability.
3.
The doctor who
treated an injured – claimant or who examined him subsequently to assess the
extent of his permanent disability can give evidence only in regard the extent
of permanent disability. The loss of earning capacity is something that will
have to be assessed by the tribunal with reference to the evidence in entirety.
4.
The same permanent
disability may result in different percentage of loss of earning capacity in
different persons, depending upon the nature of profession, occupation or job,
age, education and other factors.
By considering these factors this hon’ble court may not be pleased to
apply multiplier method.
The petitioner had stated that she was occupied as typist in private
computer centre and thereby earning Rs. ------/ pm and produced a salary
certificate. That cannot be accepted without the evidence of the person who
issued it.
They have produced medical bills, the consideration of which are subject
to proof and relevancy. They have not examined hospital authorities who issued medical
bills to prove the same. Hospital receipts are subject to proof through the evidence
of authorities who issued it.
The petitioners have produced some citations in which heavy award has
been passed for the injuries, In those cases petitioners were in vegetative condition
and in one case, he was in coma condition and later died. But here it is not
so. The petitioner had come to the court by walking. So those citations will
not be applicable to this case.
IN nutshell,
1.
There is contributory
negligence on the part of the petitioner.
2.
Salary certificate and
medical bills produced by the petitioner are not proved through cogent evidence.
3.
Functional disability
is not fixed. Only when there is functional disability multiplier method is
applicable. Hence multiplier method cannot be applied here.
Hence this hon’ble court may be pleased to dismiss this claim petition
and thus render justice.
Advocate for 2nd respondent.
Before the motor accidents
Claims tribunal, Court,
Place.
Mcop /20 .
Name
of the petitioner
---- Petitioner.
--------------------------
Notes of arguments
Filed on behalf of
The 2nd respondent.
--------------------------
Name of the respondent
--- 2nd respondent.
By
Name of the Advocate.,
ADVOCATE,
Place.
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