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2022 DIGILAW 703 (KER)

Dileep Antony v. Shobin Sebastian S/o. Sebastian

2022-08-16

MURALI PURUSHOTHAMAN

body2022
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. 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 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. 10. Appeals/ Second opinion in the case of such certificates will be referred to the State Disability Assessment Board. The State Disability Assessment Board will be the final appellate authority in these cases also.” 12. The Government Order itself provides for an appeal from the disability assessed by the Standing Disability Assessment Boards constituted in the Medical College Hospitals and District/General Hospitals in the Districts to the State Disability Assessment Board. 13. The State Disability Assessment Board will be the final appellate authority in these cases also.” 12. The Government Order itself provides for an appeal from the disability assessed by the Standing Disability Assessment Boards constituted in the Medical College Hospitals and District/General Hospitals in the Districts to the State Disability Assessment Board. 13. G.O.(P) No.161/97/H&FWD dated 15.05.1997 was referred to with approval by this Court in Neena Devadas v. Sajeendran K.G. and others [ 2014 (4) KHC 669 : 2014 (4) KLT 728 ] and Vinod Kumar v. A.Sasi [ 2014 (4) KHC 631 : 2014 (4) KLT 770 ]. In Neena Devadas (supra), this Court held that, 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. 14. The Right of Persons with Disabilities Act, 2016 (the “Disabilities Act”, for short) has been enacted to give effect to the United Nations Convention on the Rights of persons with Disabilities and for matters connected therewith or incidental thereto. Section 2(r) of the Disabilities Act defines “person with benchmark disability” to mean a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. Section 2(s) defines “person with disability” to mean a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. Section 2(zc) defines “specified disability” to mean the disabilities as specified in the Schedule to the Act. Section 56 deals with guidelines for assessment of specified disability. Section 57 of the Disabilities Act deals with the authorities competent to issue disability certificate under the Act and Section 58 deals with the procedure for certification. Section 58 provides for issuance of certificate of disability to person with 'specified disability' only. Section 59 of the Act deals with appeal against a decision of the certifying authority. 15. Section 57 of the Disabilities Act deals with the authorities competent to issue disability certificate under the Act and Section 58 deals with the procedure for certification. Section 58 provides for issuance of certificate of disability to person with 'specified disability' only. Section 59 of the Act deals with appeal against a decision of the certifying authority. 15. Rule 18 of the Rights of Persons with Disabilities Rules, 2017 (“Disabilities Rules”, for brevity) deals with issuance of certificate of disability and Rule 19 provides that, a person to whom the certificate is issued under Rule 18 shall be entitled to apply for facilities, concessions and benefits admissible for persons with disabilities under schemes of the Government and of non-Governmental organizations funded by the Government. 16. The certificate of disability under the Disabilities Act is issued to person with specified disability assessed in accordance with the guidelines issued under Section 56 thereof. The appeal under Section 59(1) of the Disabilities Act referred to in Ext.P3 order of the Tribunal will lie only against the certificate issued under Section 58 of the Disabilities Act read with Rule 18 of the Disabilities Rules and will not apply to disability certificate issued under G.O.(P) No.161/97/H&FWD dated 15.05.1997. The said G.O. itself envisages an appeal from the assessment made by the Standing Disability Assessment Boards in the District to the State Disability Assessment Board and is self contained. Therefore, Ext. P3 order of the Tribunal relegating the petitioner to avail the remedy under Section 59(1) of the Disabilities Act against Ext.P1 disability certificate cannot be sustained. 17. In this context, a reference to Raj Kumar (supra) is apposite. There, the Hon'ble Supreme Court made a comparison of permanent disabilities that arise from motor accidents injuries and the disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (since repealed). The Court held as under:- “6...The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('Disabilities Act' for short). But if any of the disabilities enumerated in S.2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.” 18. But if any of the disabilities enumerated in S.2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.” 18. According to the petitioner, the injuries sustained by him are on the spine and neck. The aforesaid Government Order constitutes the Standing Disability Assessment Board and State Board with six doctors from different specialties. Ext.P1 certificate contains only three signatures. Only the Assistant Professor, Department of ENT has affixed the seal. Ext.P1 certificate is issued not in terms of the Government Order referred to above. As held by this Court in Neena Devadas (supra), the 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. This Court, in Mini.P.K. v. Abdul Nazar and others[2010 KHC 1044: 2011 (1) KLT 90 ], held that, if the Tribunal while considering an application 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'. The Court held thus; “3. In the context of the case it is also apposite to refer to R.168 of the Rules. While dealing with a claim under the Motor Vehicles Act a Claims Tribunal has to consider what appear to it to be 'just compensation' on the facts and circumstances of the case. In short, while dealing with an application under R.387 of the Rules if the Tribunal fails to apply the mind to all the relevant aspects that would definitely disable the Tribunal from assessing a 'just compensation'. In that view of the matter any decision on an application under R.387 of the Rules without any application of mind cannot be said to be a true exercise of power.” Ext.P3 order of the Tribunal cannot be construed as an order passed in proper exercise of the power under Rule 387 of the Kerala Motor Vehicles Rules, 1989. Accordingly, Ext. P3 order is set aside. I.A.No. 2/2022 shall be considered afresh in the light of the above observations and G.O.(P) No.161/97/H&FWD dated 15.05.1997. The Tribunal shall proceed with the claim petition only after passing fresh orders on I.A.No.2/2022. The Original Petition is disposed of. There will be no order as to costs.