Suresh Chand Sharma @ Suresh Chand v. Ajit Pal & Ors

1. This appeal impugns the order dated 09.05.2018 passed by the learned Motor Accidents Claim Tribunal in MACP No.41/13, on the ground that it erred in not taking into account the fact that the appellant was suffering from hemiparesis and had become 100% functionally disabled, as a result of the injuries caused to him in the motor-vehicular accident on 16.04.2008.

2. On the other hand, the learned counsel for the respondentinsurance company submits that: i) the injury happened in the year April 2008, ii) the appellant‟s current state of health finds no indication in the Discharge Summary issued to him after three months of medical treatment, iii) the functional disability was not recorded in the Discharge Disability Certificate issued by the medical authorities and iv) there is no link of claimed functional disability of 100% on the basis of any injury to the head.

3. The appellant refutes the aforesaid arguments with reference to his OPD Treatment Records which were filed before the Tribunal (pdf page no. 465). It is reproduced hereunder:

4. The appellant is a former army man. For the injuries received by him he was treated by the Armed Forces Medical Services i.e. Army Based Hospital, Delhi. Within a few months of the accident, the Army Hospital had noted the appellant‟s general level of patience, restlessness, temporal lobe dysfunction and other related ailments, and his being an old case of severe head injury. Accordingly to the appellant, all these are a consequence of the motor-vehicular accident.

5. This court, by order dated 04.09.2019, referred the appellant to a Government hospital i.e. Janakpuri Super Speciality Hospital for fresh medical assessment for determining the extent of disability. He was to be examined by a Medical Board to be constituted by the Chief Medical Officer. Looking at the nature of his case, the Hospital referred him to Institute of Human Behaviour and Allied Sciences („IHBAS‟), Delhi, for a newer assessment for providing a disability evaluation. A fresh Cognitive/Neuropsychological Assessment was conducted by IHBAS, New Delhi. Considering the nature of work to be carried out by the appellant, this is a serious degree of functional disability. The IBHAS Report has assessed the appellant‟s suffering from cognitive impairment regarding both Remote Memory and Recent Memory. He also suffers from verbal retention for similar pairs and for dissimilar pairs, from visual retention, recognition, etc. The IBHAS Report had also related him with a neuropsychological impairment with 34% disability since he had suffered impairment with total dysfunction score of 29. He was further recommended for cognitive stimulation neuropsychological retraining. The said Report of IHBAS is reproduced hereunder:

6. IHBAS assessed the appellant only from the point of view of Neuroscience and referred its assessment back to Janakpuri Super Speciality Hospital („JSSH‟). The latter assessed the disability of the entire body, not limited to neuropsychological aspect. After his subsequent examination, the JSSH Disability Board issued a Medical Certificate showing a whole body disability of 71%. Copy of the Certificate of Disability issued on 07/12/2019 is reproduced as under:

7. The Report certifies the appellant‟s locomotive disability “on account of post traumatic encephalomalacia”. This medical condition has been described as[1]: “ Encephalomalacia is the softening or loss of brain tissue after cerebral infarction, cerebral ischemia, infection, craniocerebral trauma, or other injury. In the imaging classification of traumatic brain injury, encephalomalacia is a type of chronic condition secondary to injury of the brain. Cerebral softening leads to the brain changes which can have varied clinical manifestations. Although very few published data on encephalomalacia are available in the case of human beings, most of the articles are related to infants and children but rarely adults. Almost all of them are related to neurological and/or seizure disorders. In adults with encephalomalacia, rare case reports are available who presented with psychiatric morbidities in the form of progressive mental decline, borderline dementia, features of depression, delusion, and oedipism.”

8. In view of the above, the appellant seeks award of compensation equivalent to 100% functional disability.

9. The medical treatment records of the Army Base Hospital, Delhi show that way back on 7th February, 2009 i.e. about 10 months after the injuries received by him the motor-vehicular accident, he had already developed (i) Akathisia (ii)

1 Psychosis in a case of encephalomalacia: Jnanamay Das and Shailly Yadav, Industrial Psychiatry Journal, 2018 JUL-DEC; 27(2): 293-295 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6592203/#:~:text=Paranoid%20delusions%20and %20auditory%20hallucinations,were%20more%20impaired%20cognitively%20too. Automatism (iii) Frontal Dysfunction (iv) Spastic Hemiparesis v) had severe head injury with temporal lobe dysfunction and vi) was already restless and unable to wait in the OPD.

10. Damage to Frontal Lobe Dysfunction has been described as[2]: “The emergence of developmentally primitive reflexes, also known as frontal release signs, such as grasping (elicited by stroking the palm) and sucking (elicited by stroking the lips) are seen primarily in patients with large structural lesions that extend into the premotor components of the frontal lobes or in the context of metabolic encephalopathies. The vast majority of patients with prefrontal lesions and frontal lobe behavioral syndromes do not display these reflexes. Damage to the frontal lobe disrupts a variety of attention-related functions, including working memory (the transient online holding and manipulation of information), concentration span, the effortful scanning and retrieval of stored information, the inhibition of immediate but inappropriate responses, mental flexibility. ”

11. Temporal lobe Dysfunction also includes the following symptoms[3]: “Focal seizures may also be accompanied by a transient impairment of patient’s ability to maintain normal contact with the environment. The patient is unable to respond appropriately to visual and verbal commands during the seizures and impaired recollection or awareness of the ictal phase. The seizures frequently begin with an aura (i.e., a focal seizure without cognitive disturbance) that is Michael J. Aminoff, Neurologic Causes of Weakness and Paralysis, Harrison‟s Principles of Internal Medicine, 20th Edn, Mc Graw Hill Education, 165 Michael J. Aminoff, Neurologic Causes of Weakness and Paralysis, Harrison‟s Principles of Edn, Mc Graw Hill Education, 3051 stereotypic for the patient. The start of the ictal phase is often a motionless stair, which marks the onset of the period of impaired awareness. The impaired awareness is usually accompanied by automatisms, which are involuntary, automatic behaviors that have a wide range of manifestations. Automatisms may consist of very basic behaviors such as chewing, lip smacking, swallowing, or “picking” movements of the hands, or more elaborate behaviors such as display of emotion or running. The patient is typically confused following the seizure, and the transition to full recovery of consciousness may range from seconds upto an hour or longer. Examination immediately following the seizure may show an anterograde amnesia or transient neurological deficits (such as aphasia, hemi-neglect, or visual loss) caused by postictal inhibition of cortical regions most involved in the seizure itself. The range of potential clinical behaviors linked to focal seizures is so broad that extreme caution is advised before concluding that stereotypic episodes of bizarre or atypical behaviors are not due to seizure activity. In such cases additional, detailed EEG studies may be helpful.”

12. The said study also defines “Akathisia” as[4]: Akathisia is the most common reaction in this category. It consists of motor restlessness with a need to move that is alleviated by movement. Therapy consists of removing the offending agent. When this is not possible, symptoms may be ameliorated with benzodiazepines, anti-cholinergics, beta blockers, or dopamine agonists.” Michael J. Aminoff, Neurologic Causes of Weakness and Paralysis, Harrison‟s Principles of Edn, Mc Graw Hill Education, 3139

13. As noted in the IBHAS Report, the appellant was recommended for cognitive stimulation neuropsychological retraining. The comprehensive assessment examined aspects of his recent memory and remote memory, verbal retention for similar and dissimilar pairs, verbal retention, visual retention, recognition, etc. All these essential functions of a normal healthy person have been impaired significantly.

14. The preceding discussion and after effects of the medical condition developed by the appellant on account of the injury suffered by him in the motor-vehicular accident has been recorded hereinabove. His condition is not such that he would be able to discharge his duties as a gunman or a security officer. Softening or loss of brain tissue after cerebral infarction leading to progressive mental decline, borderline dementia, depression, delusion and oedipism show that he is unemployable as a gunman. Furthermore, impairment of working memory, concentration span or retrieval of stored information, inappropriate responses and mental flexibilities would make the appellant unemployable, especially as a security guard.