Sundaran @ Sudhan v. Shaju, Mohanan and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **&** **THE HONOURABLE MRS. JUSTICE M.C.HARI RANI** **TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933** **MACA.No. 1278 of 2011()** **--------------------------------OPMV.858/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR** **....................** ## **APPELLANT/PETITIONER:** **--------------------------------------** **SUNDARAN @ SUDHAN, S/O.APPUKUTTAN, KANDURUTHY HOUSE, P.O.CHOWANNOOR, THRISSUR DISTRICT** **BY ADV. SRI.P.V.CHANDRA MOHAN** **RESPONDENTS:** **----------------------** **1. SHAJU, S/O.CHEERU, CHENTHANGAYIL HOUSE, P.O.THANOOR, MALAPPURAM DISTRICT, 676505.** **2. MOHANAN, S/O.K.N.UNNI,** **KANDURUTHY HOUSE, AYYAPATH ROAD, CHOWANNOOR, THRISSUR DISTRICT. 680001** **3. UNITED INDIA INSURANCE CO.LTD BRANCH OFFICE, TIRUR, 676101.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ln** **“CR”** ## **R. BASANT & M.C.HARI RANI, JJ. ----------------------------------------------------------------M.A.C.A. No.1278 of 2011 ---------------------------------------------------Dated this the 16[th ] day of August, 2011** ## **JUDGMENT** ## **R. BASANT,J.** Can the course adopted by a claimant of merely thrusting the disability certificate into court be reckoned as sufficient to prove the disability suffered or extent thereof ? This is the short question that arises for consideration in this appeal. 2. The appellant/claimant suffered injuries in a motor accident, which took place on 01.04.2001. He claimed a total amount of Rs.2,24,500/- as compensation. The Tribunal by the impugned award directed payment of an amount of Rs.42,000/as compensation as per the details given below: |**_Sl.No._**|**_Head of claim_**|**_Amount Awarded_**<br>**_(in Rupees)_**|**_Basis vital_**<br>**_details in a_**<br>**_nut shell_**| |---|---|---|---| |1|Loss of earning(Total)|Rs.6250|2500 X2.5| |2|Loss of earning (partial)||| |3|Medical and Miscellaneous<br>expenses|Rs.13,725/-|| |4|Future treatment||| |5|Bystander Expenses|Rs.1,500/-|| |6|Transportation Expenses|Rs.500/-|| |7|Extra Nourishment|Rs.1,500/-|| ## **M.A.C.A. No.1278 of 2011 2** |**_Sl.No._**|**_Head of claim_**|**_Amount_**<br>**_Awarded_**<br>**_(in Rupees)_**|**_Basis vital_**<br>**_details in a_**<br>**_nut shell_**| |---|---|---|---| |8|Damages to clothing,etc|Rs.500/-|| |9|Pain and suffering|Rs.12,000/-|| |10|Disability<br>Loss of earning power<br>Injury itself discomfort|Rs.6,000/-|| ||Total<br>Limited to|Rs.41,975/-|| 3. We have heard the learned counsel for the appellant. Challenge is directed only against the quantum of compensation awarded. Called upon to explain and be specific, the learned counsel for the appellant raises the precise contention that no adequate compensation has been awarded for the disability suffered by the claimant. It is true that an amount of Rs.6,000/has been awarded under the composite head of compensation for disability including loss of earning power, loss of amenities and discomfort. This amount awarded is insufficient. No compensation has been calculated adopting the multiplier multiplicand method. There is no specific reference to the extent of disability and the ## **M.A.C.A. No.1278 of 2011 3** impact of disability in the enjoyment of life. In these circumstances, the impugned award deserves interference; the compensation deserves to be enhanced, contends counsel. 4. Did the claimant suffer any disability? That is the crucial question to be decided. It is true that the certificate Ext.A8 was produced in court and the same was assigned a number by the Tribunal. That certificate shows that the claimant had suffered 12% disability. The details are given in Ext.A8. The Tribunal obviously was not satisfied with that disability certificate. The appellant did not examine the author of the disability certificate. The appellant did not pray that the appellant may be referred to the medical board for competent evaluation of the disability if any and the extent thereof. What appears to be more important is that the appellant did not appear before the Tribunal, and show to the Tribunal the actual disability, if any. The Tribunal has recorded in paragraph 11 that the appellant/claimant had not turned up before the Tribunal. It is in these circumstances, that the Tribunal did not accept the case of the appellant that he had suffered permanent disability. However, taking note of the nature ## **M.A.C.A. No.1278 of 2011 4** of the injuries suffered, the Tribunal awarded a global amount of Rs.6,000/- under the head of physical disability. 5. This bench did have occasion to consider the situation and in paragraph 8 of the decision in Kalesh v. Sudheer (2010 (1) KLT 537), we made the following observations: “We therefore suggest that in every case where there is a disability, the Tribunal must in-variably(subject of course to just exceptions) direct the claimant to be present personally for the tribunal to observe the disability. In the presence of the counsel for the contestants the Tribunal must examine the victim/claimant and record its perception of the disability in its own words in the proceedings paper. The same must be read over to the parties/counsel. Such recording must be extracted in the award. We are conscious of the fact that the Tribunals, are not experts in the ascertainment of the disability. At least, the alleged disability can be perceived and recorded faithfully and made available in the awards. This would be a very valuable input to appreciate the Disability Certificate and to ascertain the extent of reduction in earning capacity consequent to the alleged physical disability. Parties/counsel and the Tribunals must insist and ensure that such course is followed. When the Tribunal feels that the disability certificate marked cannot be accepted without proof, the Tribunal shall always have the option to direct the parties to offer proof thereof or to direct the injured/victim to appear before the Medical Board to assess the extent of physical disability competently.” (emphasis supplied). ## **M.A.C.A. No.1278 of 2011 5** 6. That decision was rendered on 21.01.2010 and was reported in the journals on and after 15.2.2010. 7. Even thereafter, we find that the appellant did not choose either to examine the author of Ext.A8 disability certificate or to request the Tribunal to refer him to the medical board. He did not despite the specific observations extracted above, request the Tribunal to make a record of the physical disability as perceived by the Tribunal. The impugned award does not specifically say that the Tribunal had issued a direction to the appellant to appear before it to verify the physical disability, but in paragraph 11 of the impugned award, it is very specifically stated that the claimant/appellant “has not turned ” up . It does evidently suggest that the Tribunal wanted the claimant/appellant to appear but he did not oblige by appearing before the Tribunal. 8. In spite of the observations in paragraph 8 of KALESH supra we find that the Tribunals even now are not physically verifying the alleged physical disability and making a note thereof ## **M.A.C.A. No.1278 of 2011 6** in the case records. Such observations, we find are not extracted in the awards also. Such observations, if made would considerably help the Tribunal itself and also the superior courts to consider the claims for disability. Even when formal proof is not offered for disability certificates, and even when the disability certificate does not fully inspire Tribunals, such observations made by the Tribunals shall be of help to the Tribunals and superior courts to come to just and reasonable conclusions. 9. As often repeated, the physical disability suffered by a person has two fold reflections on his life. It reduces the earning capacity; it also impairs the quality of life. Observations made by Tribunals about physical disability as perceived by them will help the Tribunals to make an assessment as to whether disability certificate produced can be accepted and acted upon. Such observations as noticed and recorded by the Tribunals will help superior courts also considerably in coming to appropriate, just and reasonable decisions. The course adopted by the parties of not presenting themselves for assessment and recording of the perception of the alleged disability by the Tribunal (and the ## **M.A.C.A. No.1278 of 2011 7** failure/omission of the Tribunal to make such specific note of the disability as perceived by them) is certainly a serious matter. It would be wholesome and hence essential that the Tribunals adopt the practice of making a record of such perception of alleged physical disability by them. We repeat that the Tribunals may not be competent to completely and exhaustively assess the extent of disability. But perception of the Tribunal as the adjudicator at the grass root level will certainly be of help for the Tribunal in assessing and evaluating the acceptability of Disability Certificate. That would help superior courts also. 10. We note that in spite of the specific observations in paragraph 8 of Kalesh, the Tribunals are not following the practice scrupulously. We had directed the registry in paragraph 10 of Kalesh's case to communicate the observations/directions to all Accident Claims Tribunals for future strict compliance. 11. The purpose does not seem to be achieved by the said direction. For the reasons which have been mentioned in paragraph 10 of Kalesh, we feel that a further attempt must be made to ensure that specific directions to the above effect are ## **M.A.C.A. No.1278 of 2011 8** conveyed to all Tribunals for future guidance and strict adherence. Such adherence by the Tribunals will help considerably in reducing the unnecessary contentions and would help the courts to discharge the primary mandate under Section 168 of the Motor Vehicles Act to ensure that just compensation is made available to the victim. 12. The learned counsel for the appellant finally prayed that an opportunity may be granted to the appellant to get disability assessed afresh competently by a Medical Board. In appropriate cases, this court has been issuing such directions also. But in the facts and circumstances of this case, Judged by the conduct of the appellant of not examining the author of Ext.A8; of not requesting the Tribunal to refer him to the Medical Board and of not even appearing before the Tribunal to enable it to record the disability if any, we are of the opinion that such luxury of a further opportunity need not be afforded to the appellant. We note that the Tribunal even though not convinced about the physical disability suffered has awarded an amount of Rs.6000/- as compensation under the composite head under ## **M.A.C.A. No.1278 of 2011 9** entry No.10 in the tabular column extracted above. We do take note of the nature of disability allegedly suffered as revealed from Ext.A8. We do not feel that the interests of justice should persuade us to resort to that course of remand or collection of further materials here. We are not in the circumstances persuaded to remand the matter to the Tribunal. 13. In these circumstances, this appeal is dismissed. We direct the registry to communicate copy of this judgment to all Tribunals. All Tribunals shall ensure that the direction in paragraph 8 of KALESH supra is scrupulously complied with. ## **R. BASANT, JUDGE** ## **M.C.HARI RANI, JUDGE** ## **ln**