IN MVC ACCIDENT CLAIMS PERMANENT DISABILITY TO EARN IS TO BE SEEN RATHER THAN MEDICAL DISABILITY 2011 SC

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Justice G.S. Singhvi, and Justice Asok Kumar Ganguly in a case of Sanjay Batham vs Munnalal Parihar & Ors. Decided on 1 November, 2011 Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

MENTAL CRUELTY TO A HUSBAND AS RECOGNISED BY MATERIALS ON RECORD BY SC 2011

Justice P. Sathasivam, and Justice B.S. Chauhan in Pankaj Mahajan vs Dimple @ Kajal on 30 September, 2011 observed that “It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated.”

They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.
ii. Pushing the appellant from the staircase resulting into fracture of his right forearm.
iii. Slapping the appellant and assaulting him.
iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him.
v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with them.
viii. Forcing the appellant to live separately from his parents.
ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him.
xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant.

All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband.

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AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.