Ragesh v. Frank John, Sanjay Sebastian, The New India Assurance Co. Ltd., GANESAN S/O. GOPALANACHARI, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944 OP (MAC) NO. 76 OF 2022** **AGAINST THE ORDER DATED 04.06.2022 IN I.A NO.2 OF 2022 IN OPMV 387/2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS** ## **TRIBUNAL, ERNAKULAM** ## **PETITIONER/PETITIONER:** **RAGESH AGED 33 YEARS S/O. GANESH, CHENNATTUPARAMBU HOUSE, CHATHARI, THRIPOONITHURA, ERNAKULAM DISTRICT, PIN – 682 301.** **BY ADVS. ANUPAMA JOHNY K.K.CHANDRALEKHA** ## **RESPONDENTS/RESPONDENTS:** **1 FRANK JOHN AGED 21 YEARS S/O. JACOB, KALLACHAMMURI HOUSE, MULAVUKADU P. O., NOW RESIDING AT VELIYATH HOUSE, NEAR STELLA MARY'S SCHOOL, UDAYAMPEROOR P. O., ERNAKULAM DISTRICT, PIN – 682 301. 2 SANJAY SEBASTIAN AGED 27 YEARS S/O. JOSHY K. F., KUNJUVEETTIL HOUSE, JANATHA, VYTTILA P. O., ERNAKULAM DISTRICT, PIN – 682 019. 3 THE NEW INDIA ASSURANCE CO.LTD., IST FLOOR, THARAYIL CHAMBERS, OPP. HP PETROL PUMP, NH BYPASS, VYTTILA, KOCHI – 682 019, REPRESENTED BY BRANCH MANAGER.** **OP (MAC). No.76 OF 2022** **2** **4 GANESAN S/O. GOPALANACHARI, 17/257, CHENATTUPARAMBIL, CHATHARI, NADAMA, THRIPUNITHURA, ERNAKULAM, PIN – 682 301. 5 NATIONAL INSURANCE CO. LTD., DAMODAR CHAMBERS, IIND FLOOR, P.B.NO.48, STATUE JUNCTION, THRIPUNITHURA – 682 301, REPRESENTED BY BRANCH MANAGER. R3 - SRI. LAL K. JOSEPH - SC R5 - SRI. LAL GEORGE - SC** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 19.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (MAC). No.76 OF 2022** **3** ## **JUDGMENT** The petitioner is the claimant in O.P.(MV) No. 387 of 2017 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The accident happened on 29.11.2015. The petitioner made Ext. P2 application dated 16.01.2020 before the Tribunal under Rule 387 of the Kerala Motor Vehicles Rules, 1989 ('Rules', for short) for his examination by a Medical Board constituted at District Hospital, Ernakulam for issuance of disability certificate. Pursuant to the orders passed by the Tribunal, the petitioner appeared before the Special Medical Board at General Hospital, Ernakulam and he was issued with Ext.P3 certificate dated 22.12.2021 certifying his whole body permanent disability as 5%. According to the petitioner, though Ext.P3 **OP (MAC). No.76 OF 2022** **4** disability certificate is signed by three Doctors, only one Doctor had examined him and that Ext.P3 does not indicate his actual disability. Accordingly, the petitioner filed Ext.P4 application dated 10.06.2022 to refer him for further medical examination by the Medical Board constituted at Medical College, Ernakulam. 2. The Tribunal rejected Ext.P4 application by Ext.P5 order dated 24.06.2022 holding that Ext.P3 disability certificate is signed by three Doctors and therefore the contention of the petitioner that he was examined only by one Doctor cannot be believed. The Tribunal observed that the petitioner has only orthopedic disability and the prayer to refer him for further medical examination cannot be allowed and dismissed the petition with liberty to the petitioner to examine any of the signatories to Ext.P3 certificate. **OP (MAC). No.76 OF 2022** **5** 3. The Tribunal had allowed the application of the petitioner under Rule 387 of the Rules for examination by Medical Board and he appeared before the Medical Board and Ext.P3 certificate is issued indicating his whole body permanent disability. The petitioner contends that Ext.P3 does not indicate his actual disability and prays for further examination by Medical Board constituted at Medical College, Ernakulam. The standard for awarding compensation on the basis of disability has been laid _**v**_ down by the Apex Court in **Raj Kumar . Ajay Kumar** [(2011) 1 SCC 343]. 4. In G.O(P) No.161/97/H&FWD dated 15.05.1997, the Government have issued revised orders/guidelines for issuing disability certificates to be produced before the Motor Accidents Claims Tribunal, Workmen's Compensation Court, individual compensation claims in other Courts etc. Paragraphs **OP (MAC). No.76 OF 2022** **6** ## '9' and '10' of the said G.O read thus:- “9. Disability Certificates to be produced before the Motor Accident Claims Tribunal, Workmen's Compensation Court, individual compensation claims in other Courts etc., will be issued by a Specialist Doctor (Government or Private) with not less than 10 years standing in the speciality, who has not treated the patient in the acute stage after the accident. This is to ensure unbiased and accurate assessment of the permanent disability. Perusal of all relevant documents regarding the injuries sustained and treatment instituted etc., should be made and certificate of disability, issued only after careful and through evaluation. 10. Appeals/ Second opinion in the case of such certificates will be referred to the State Disability Assessment Board. The State Disability Assessment Board will be the final appellate authority in these cases also.” 5. On a perusal of Ext P3 certificate, it can be seen that the same is not issued in terms of the above Government Order. The Government Order provides how the Standing Disability Assessment Boards and the State Disability Assessment Board shall be constituted. Further, the Government Order itself provides for an appeal from the disability **OP (MAC). No.76 OF 2022** **7** assessed by the Standing Disability Assessment Boards constituted in the Medical College Hospitals and District/General Hospitals in the Districts to the State Disability Assessment Board. 6. The Tribunal has not adverted to all relevant aspects while considering the application under Rule 387 of the Kerala Motor Vehicles Rules, 1989. Accordingly, Ext.P5 order is set aside. I.A. No. 1/2022 shall be considered afresh in the light of G.O.(P) No.161/97/H&FWD dated 15.05.1997 and the aforesaid Rule. The Tribunal shall proceed with the claim petition only after passing fresh orders on I.A. No.1/2022. The Original Petition is disposed of. There will be no order as to costs. Sd/- ## **MURALI PURUSHOTHAMAN JUDGE** SPR **OP (MAC). No.76 OF 2022** **8** ## **APPENDIX** ## **' - PETITIONER S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE WOUND CERTIFICATE CUM DISCHARGE CERTIFICATE DATED 10.12.2015 ISSUED BY MEDICAL TRUST HOSPITAL, ERRNAKULAM.** **EXHIBIT P2 TRUE COPY OF THE PETITION SEEKING EXAMINED AND ASSESSED THE PERMANENT DISABILITY SUSTAINED BY THE PETITIONER AND THE AFFIDAVIT IN SUPPORT OF THE SAME.** **EXHIBIT P3 TRUE COPY OF THE SPECIAL MEDICAL CERTIFICATE DATED 22.12.2021.** **EXHIBIT P4 TRUE COPY OF THE PETITION SEEKING A FURTHER MEDICAL EXAMINATION BY THE MEDICAL BOARD BEARING I.A.NO.2/2022 IN OP(MV) NO.387/2017 AND THE AFFIDAVIT IN SUPPORT OF THE SAME.** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24.06.2022 IN I.A.NO.2/2022 IN OP(MV) NO.387/2017 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM.** **RESPONDENTS EXHIBITS: NIL.** **OP (MAC). No.76 OF 2022** **9** The I.A No.1/2022, mentioned twice in the 6[th] paragraph of the Judgment dated 19.09.2022 is corrected as “I.A No.2/2022” as per order dated 09.11.2022 in I.A No.1/2022 in OP (MAC) 76 of 2022. **Sd/Joint Registrar**