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2011 Supreme(Ker) 768
High Court of Kerala
R. BASANT & M.C. HARI RANI
Sundaran @ Sudhan
Versus
Shaju & Others
M.A.C.A. No. 1278 of 2011
Decided on : 16-08-2011
For the Petitioner:P.V. Chandra Mohan, Advocate.
For the Respondents: ----------
Headnote:
Motor Vehicle Act - Accident Claim - Challenge is directed only against the quantum of compensation awarded - 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 - Held, 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 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 - Appeal is dismissed.
Key Points: - The claimant’s course of merely presenting a disability certificate without personal appearance or medical board referral is insufficient to prove disability (!) (!) . - The Tribunal must record its perception of the alleged disability and include it in the award, especially when the certificate is in question (!) (!) (!) . - Tribunals are not fully competent to assess the extent of disability but must record observations to assist courts (!) (!) (!) . - The appellant did not appear before the Tribunal or request a medical board assessment, affecting the Tribunal’s decision (!) (!) (!) . - Compensation of Rs.6,000 was awarded under the disability head despite doubts about the certificate (!) (!) . - The court reiterated directions from a prior case (Kalesh) requiring Tribunals to verify and record disability perceptions (!) (!) (!) . - Non-compliance by Tribunals with the practice of recording disability perceptions is noted and considered a serious issue (!) (!) . - Further compensation enhancement using a multiplier method was not pursued due to the claimant’s conduct and Tribunal award (!) (!) . - The appeal is dismissed with directions to communicate the judgment to all Tribunals for compliance (!) (!) .
Can the mere submission of a disability certificate be considered sufficient proof of disability and its extent in a motor vehicle accident claim?
What is the role and obligation of a Tribunal in recording its perception of a claimant’s physical disability during adjudication?
When may a further opportunity for disability assessment be granted by the court in accident compensation claims?
R. BASANT, J.
1. 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 claimant 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:
Amount
Basis vital details
SI. No. 1 Loss of earning (Total) Rs. 6250 2500X2.5 2 Loss of earning (partial) 3 Medical and Miscellaneous expenses Rs.13,725/- 4 Future treatment 5 Bystander Expenses Rs.1,500/- 6 Transportation Expenses Rs.500/- 7 Extra Nourishment Rs.1,500/- 8 Damages to clothing, etc Rs.500/- 9 Pain and suffering Rs. 6,000/- Head of claim in a nut shell Awarded (in Rupees)
10 Disability Loss of earning power Injury itself discomfort Rs.6,000 Total 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 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 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 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 observation:
“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
