Shajimon v. New India Assurance Co. Ltd. and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **OP (MAC).No. 30 of 2018** **AGAINST THE ORDER/JUDGMENT IN OP(MV)No.1101/2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA** ## **PETITIONER:** ## **SHAJIMON,** **S/O PAULOSE, AGED 53 YEARS, PALAKATHADATHIL HOUSE, AROOR KARA, ARAKUZHA VILLAGE, MUVATTUPUZHA, ERNAKULAM DISTRICT-686672.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE NEW INDIA ASSURANCE CO. LTD., THIRUVANANTHAPURAM, REPRESENTED BY ITS DEPUTY MANAGER-695023.** - **2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION,FORT, THIRUVANANTHAPURAM-695023.** **3 SATHEESH R., S/O RAJAMANI, CKM CHERAMANGALAM KARA, MELORCODE VILLAGE, ALATHOOR TALUK, PALAKKAD DISTRICT-678541.** **BY ADVS.** **SMT.M.HEMALATHA SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. SRI ZIYAD REHMAN, STANDING COUNSEL** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 OP(MAC)30 OF 2018 ## **JUDGMENT** The petitioner, who is a claimant in O.P.(MV)No.1101 of 2015 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, has filed this original petitioner under Article 227 of the Constitution of India, seeking an order to set aside Ext.P4 order dated 20.01.2017 of the Tribunal in I.A.No.1523 of 2017; and seeking a declaration that it is not necessary to assess the disability by the Kerala State Medical Board, Thiruvananthapuram and a review of the disability by the Taluk Medical Board is the proper course to be adopted by the Tribunal, in case of any complaint by the 1[st] respondent to Ext.P4. The petitioner has also sought for an order directing the Motor Accidents Claims Tribunal, Muvattupuzha to dispose of O.P.(MV)No.1101 of 2015, taking into account of Ext.P1 disability certificate, as expeditiously as possible or at any rate, within a period of three months. 2. On 26.03.2018, when this original petition came up for admission, notice by speed post was ordered to the 3[rd] respondent. The respective Standing Counsel took notice for respondents 1 and 2. The 1[st] respondent entered appearance and filed a counter affidavit, opposing the reliefs sought for in 3 OP(MAC)30 OF 2018 this original petition. 3. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent Insurer, the learned Standing Counsel for KSRTC, representing the 2[nd] respondent, and also the learned counsel for the 3[rd] respondent. 4. The sole issue that arises for consideration in this original petition is as to whether any interference, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, is warranted on Ext.P4 order dated 20.01.2017 of the Tribunal. 5. Ext.P4 order passed by the Tribunal is one in an application filed by the 3[rd] respondent Insurer in O.P. (MV)No.1101 of 2015 (who is the 1[st] respondent herein), seeking an order to direct the injured to appear before the State Medical Board at Trivandrum to get his disability assessed. The relief sought for in that interlocutory application was opposed by the petitioner by filing Ext.P3 objection. After considering the pleadings and materials on record and also the submissions made by the learned counsel on both sides, the Tribunal thought it fit to direct the claimant in O.P. 4 OP(MAC)30 OF 2018 (MV)No.1101 of 2015 (who is the petitioner herein) to appear before the State Medical Board for assessment of his disability. The reasoning of the Tribunal as contained in paragraphs 7 and 8 of the order, reads thus; “7. The point:- The claim petition was filed claiming a compensation of Rs.70,000/- for the injuries sustained by the petitioner in the accident. The case of the 3[rd] respondent is that the injury sustained by the petitioner are simple in nature. He had sustained only fracture of 3[rd] , 4[th] , 5[th] metacarpal, But the disability assessed by the medical board is 22%, which is disproportionate to the nature of the injuries sustained. Fracture of the metacarpal did not cause such a disability. At the time of examination, he stated that the petitioner had developed general weakness of the hand following the accident. So disability is assessed as 22%. 8. At the time of evidence C.W.1 stated that the disability was measured as per Mcbrides scale. He had verified the wound certificate and discharge summary and issued the disability certificate. There was fracture of 3[rd] , 4[th] , and 5[th] metacarpal. There was no fracture of the 2[nd] metacarpal. The measurement of the loss of fracture of the hand component consisting determining prehension, sensation and muscle strength. In Ext.C1 it is noted that there is stiffness to the 2nd finger. But the wound certificate does not show such an injury. There was no mal union of middle finger. Stiffness was due to immobilization. It is a complication of fracture. It is known as reflex sympathic dystropy RSD is a different disease. The medical 5 OP(MAC)30 OF 2018 certificate show that the petitioner had undergone inpatinet only for six days. The wound certificate of disability certificate does not show that the petitioner had sustained any RSD. So the disability assessed by the medical board appears to me disproportionate to the nature of injuries sustained. So the petitioner is allowed. Ext.C1 disability certificate is set aside. The petitioner is directed to appear before the Kerala State Medical Board for examination of the disability. The insurance company, 3[rd] respondent shall deposit an amount of Rs.3000/towards cost within a week.” (underline supplied) 6. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or 6 OP(MAC)30 OF 2018 under any law relating to the Armed Forces. 7. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 8. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within 7 OP(MAC)30 OF 2018 the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 9. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under 8 OP(MAC)30 OF 2018 Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is 9 OP(MAC)30 OF 2018 palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 11. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been 10 OP(MAC)30 OF 2018 flouted. 12. A reading of Ext.P4 order would show that the Tribunal has stated valid reasons to order reassessment of the disability of the petitioner, after taking note of the nature of injuries sustained. Once the Tribunal thought it fit to reassess the disability, after setting aside Ext.P1 disability certificate, the petitioner cannot insist that such reassessment should be made by the Taluk Medical Board itself and not by the State Medical Board. The reasoning of the Tribunal in Ext.P4 order cannot be termed as one palpably perverse or patently unreasonable, warranting interference, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. 13. The learned counsel for the petitioner would submit that due to the nature of disability, the petitioner may not be in a position to travel to Thiruvananthapuram for assessment of disability, using public transport facility. 14. Having considered the submission made by the learned counsel for the petitioner, this Court deem it appropriate to re-fix the cost directed to be deposited by the 1[st] respondent insurance company, as Rs.6000/-, instead of 11 OP(MAC)30 OF 2018 Rs.3000/-. The additional amount of Rs.3000/- shall be deposited, within a period of two weeks from the date of receipt of a certified copy of this judgment. In the result, this original petition fails and the same is accordingly dismissed; however, subject to the aforesaid direction to the 1[st] respondent Insurer. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 12 OP(MAC)30 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD, GENERAL HOSPITAL, MUVATTUPUZHA.** - **EXHIBIT P2 TRUE COPY OF THE I.A NO.1523/2017 IN OP(MV) NO.1101 OF 2015 FILED BY THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO EXHIBIT P2.** **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN I.A NO.1523 OF 2017.** - **EXHIBIT P5 TRUE COPY OF THE GUIDELINES BASED ON THE SAID NOTIFICATION PUBLISHED BY THE NATIONAL INSTITUTE FOR ORTHOPAEDICALLY HANDICAPPED.** - **EXHIBIT P6 TRUE COPY OF THE GUIDELINES REGARDING THE ASSESSMENT AND CERTIFICATION OF DISABILITY PUBLISHED BY THE NATIONAL INSTITUTE FOR ORTHOPAEDICALLY HANDICAPPED.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**