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2014 DIGILAW 827 (KER)

Neena Devadas v. K. G. Sajeendran

2014-10-20

K.VINOD CHANDRAN

body2014
JUDGMENT K. VINOD CHANDRAN, J. 1. The petitioner is aggrieved by the non-consideration of an application filed, evidenced at Exhibit P6, where, the petitioner had sought for a reference to the State Medical Board. 2. The petitioner, admittedly, was involved in an accident, in which the petitioner claims that she suffered disability. A claim was preferred before the Motor Accidents Claims Tribunal (for brevity Tribunal) on 26.07.2010. An application for reference to the Medical Board was made on 06.10.2012, which was allowed as could be seen from Exhibit P4 dated 16.10.2012. The Medical College Hospital, Alappuzha examined the petitioner on 25.04.2013 and reported Nil disability. 3. The petitioner was aggrieved by Exhibit P5 report and, hence, filed a second application, evidenced at Exhibit P6 for a reference to the State Medical Board. The petitioner also filed an application for removing the case from the list, evidenced at Exhibit P7. The petitioner's contention is that the Tribunal rejected the application for removal of the case from the list and posted the application, for a second reference, to the State Medical Board, along with the case which was posted for evidence. 4. The short contention urged before this Court is that, there would be no purpose served, if the petitioner is examined and the evidence in the case closed; before a medical report is received from the State Medical Board. 5. It is to be noticed that while the Original Petition was admitted on 23.08.2013, there was an interim stay granted by this Court, which was extended until further orders. Today when the case was posted for hearing, the learned Standing Counsel appearing for the Insurance Company would take a serious objection in the second application filed, alleging that it is only a ruse to delay the proceedings, which would eventually result in the Insurance Company being mulcted with the interest liability. 6. The petitioner has produced before me G.O. (P) 161/97/H&FWD dated 15.05.1997, where the Government has issued revised orders/guidelines for issuing Medical Certificates, wherein with respect to the Disability Certificates to be produced inter alia before the M.A.C.T. paragraph 8 is relevant:- "8. Disability Certificates to be produced before Motor Accident Claims Tribunal, Workmen's Compensation Court, individual compensation claims in other Courts etc. Disability Certificates to be produced before 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." 7. The above G.O. was referred to with approval, in a Division Bench decision of this Court in Saramma Scaria vs. Mathai, 2002 (2) KLT 404 , where the Division Bench has also laid down certain guidelines on how the Tribunals should deal with applications for reference of cases to the Medical Board. The guidelines issued by the Division Bench survived the interference made with the Division Bench decision by a Full Bench, reported in Jacob Thomas vs. Pandian, 2005 (4) KLT 545 (F.B.). The Division Bench inter alia held that after framing issues, the Tribunal cannot dismiss the application for default under any circumstance, which the Full Bench did not agree with. Only to that limited extent the decision in Saramma Scaria (supra) was overruled. In fact, the said interference was also in mitigation of the hardship caused to a claimant who is obliged to file an appeal from an award passed without he being participated in the enquiry. Despite there being a prevalence of unscrupulous claims before the Motor Accidents Claims Tribunals, no Tribunal can afford to view every claim with a jaundiced eye and it is for the Tribunals to assess and determine genuine claims and deal appropriately with the claims which are frivolous and contorted. 8. It is also to be noticed that the aforesaid G.O. also constitutes, at paragraph 9, the State Disability Assessment Board as the Appellate Authority, to which any person could claim reference, if aggrieved by the disability assessed by the Standing Disability Assessment Boards constituted in the Medical College Hospitals and District/General Hospitals in the Districts. Hence, the Government order itself envisages an appeal from the assessment made by the District Board, as is in this case and no irrefutability can be attributed to such certificate issued. Hence, the Government order itself envisages an appeal from the assessment made by the District Board, as is in this case and no irrefutability can be attributed to such certificate issued. Even the certificate issued by a State Medical Board would not be conclusive, since both parties would be entitled to refute the assessment made, by leading cogent contra evidence. 9. In the instant case, the petitioner's disability is alleged to be from neurological and orthopaedic complaints. The Government Order constitutes the Standing Disability Assessment Board with six doctors from different specialities and the State Board also in a like manner. The certificate in the above case indicates the Board which examined the petitioner, to be one comprising of four doctors. The Chairman; who is not disclosed to have been part of the examination of the petitioner, has signed the certificate. Assessment of disability cannot be lightly taken by the Boards constituted by the Government, nor can such levity displayed by the Boards be condoned by the Courts. Assessment of a disability for the purpose of awarding damages is an onerous responsibility, where a balance has to be struck between the legitimate claim of an injured and public interest; the former commensurate with the damage/injury caused and the latter; since in most cases the tort feasor is insured and the amount of damages is a drain on public money. But, neither can be discounted or one given more significance over the other. It is the Courts' duty to ensure an objective assessment; leading to proportionate compensation, tainted neither by subjectivity nor misplaced sympathy. 10. Taking all the aforesaid facts into consideration, it is only proper that the petitioner's application for a second reference be considered by the Tribunal, in the considered opinion of this Court, favourably. The claim petition filed before the Tribunal shall not be taken up till the application filed, as evidenced by Exhibit P6, is considered by the Tribunal. The Tribunal shall, if the case is posted after 10.11.2014, advance the same to 10.11.2014 or in the other event, post the case on 10.11.2014, on which date the petitioner as also the respondents shall be represented before the Tribunal through counsel. The Tribunal shall, if the case is posted after 10.11.2014, advance the same to 10.11.2014 or in the other event, post the case on 10.11.2014, on which date the petitioner as also the respondents shall be represented before the Tribunal through counsel. On the said date or on any adjourned date within two weeks therefrom, the matter shall be heard and the Tribunal shall consider the application and pass orders on the same, bearing in mind the binding precedent of the Division Bench in Saramma Scaria (supra) as also the observations herein, within a month from that date. The case shall be listed for evidence only after the aforesaid application is considered and on allowing the same, only after receipt of medical certificate. The Original Petition is disposed of as above. Parties are left to suffer their respective costs.