Point of Law: Under Rule 387 of the Kerala Motor Vehicles Rules, 1989 fails to apply the mind to all the relevant aspects, that would definitely disable the Tribunal from assessing a 'just compensation'

JUDGMENT :

1. The petitioner has filed O.P.(M.V)No.2123 of 2018 before the Motor Accidents Claims Tribunal, Kottayam claiming compensation for the personal injuries sustained in a motor vehicle accident on 04.01.2018.

2. According to the petitioner, he sustained grievous injuries in the accident including cervical spine injury, C4/C5 listhesis, fracture with unilateral locked facet joint, C4-C6 cord compression with cord odema etc.

3. The Tribunal referred the petitioner to the Medical Board and the Standing Disability Assessment Board at Government Medical College Hospital, Kottayam issued Ext.P1 certificate assessing his permanent disability as 5%.

4. The petitioner states that, for issuing Ext. P1 disability certificate, he was examined only by an Assistant Professor in the Department of ENT, Medical College Hospital, who is not a specialist with regard to injuries sustained by him on the spine and neck.

5. The petitioner, therefore, filed I.A.No.2 of 2022 (Ext.P2) before the Tribunal under Rule 387 of the Kerala Motor Vehicles Rules, 1989 to direct the Standing State Disability Assessment Board (for short, 'the State Board'), Government Medical College, Thiruvananthapuram, to examine him and to forward the certificate stating the percentage of his whole body permanent disability to the Tribunal.

6. The said application was rejected by the Tribunal vide Ext.P3 order which reads as under:-

“Heard. Opposed. Petitioner was already examined by standing disability board of Medical College Hospital Kottayam and issued certificate showing 5% disability. Section 59(1) of Rights of persons with Disabilities Act 2016 and Rules 2017 provides right of appeal. Hence petitioner is directed to approach appellate authority. IA closed.”

7. According to the petitioner, the Medical Board failed to assess his actual disability and the constitution of the Medical Board which issued Ext. P1 certificate is not in terms of G.O(P) No.161/97/H&FWD dated 15.05.1997 for issuance of disability certificates for production before the Motor Accidents Claims Tribunals. The petitioner, therefore, prays to set aside Ext.P3 order and to direct the Tribunal to allow Ext. P2 application.

8. Heard Sri. P.S.Sidharthan, the learned counsel for the petitioner and Sri.P.K.Manoj Kumar, the learned counsel for the 3rd respondent insurance company.

9. The Hon'ble Supreme Court, in Raj Kumar v. Ajay Kumar and another [(2011) 1 SCC 343], considered in detail the correlation between the permanent disability suffered in an accident and the loss of earning capacity resulting therefrom. The Court held that, where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity.

10. Rule 387 of the Kerala Motor Vehicles Rules, 1989 deals with issuance of disability certificate and reads as follows:-

“387. Examination of the injured by a Medical Officer.-The Claims Tribunal may, if it considers necessary, direct any medical officer in a Government Hospital or in a Medical College Hospital or any Board consisting of such Medical Officers to examine the injured and issue disability certificate indicating the degree and extent of the disability, if any, sustained as a result of the accident.”

11. 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 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 treate