JUDGMENT : 1. The question raised before this Court is whether the Motor Accidents Claim Tribunal can fix the percentage of disability on its own when the report of the Medical Board is placed before it? 2. The claimant before the Motor Accident Claims Tribunal-II, Alappuzha is the appellant herein. On 26.01.2013 at around 9.30 a.m. at Polikode Valakom, Kottarakkara, an accident took place out of use of a Maruti Alto Car bearing registration No. KL-33/C-3861. When the claimant reached this spot the offending vehicle bearing registration No. KL-01/AX-8111 hit the vehicle of the claimant and she sustained serious injuries. Hence, the claim petition was lodged before the Motor Accident Claims Tribunal-II, Alappuzha. The Motor Accident Claims Tribunal-II on the basis of the evidence of materials on record framed the following issues: “1. Whether the motor accident causing injuries to the petitioner was due to the negligent driving of respondent no. 2? 2. Is the petitioner entitled to recover compensation from the respondents jointly and severally? 3. If so, what should be the quantum?” 3. On behalf of the claimant, Exts.A1 to A20 and X1 were marked and PW1 and PW2 were examined. Ext.X1 is the Disability Certificate marked as court exhibit. On the basis of the materials on record and evidence produced before the Tribunal, the Tribunal found that the claimant suffered the following injuries: “10. The petitioner proved the nature of injuries and treatment of the petitioner through Exts.A3, A7 series, A9, A13, A15, A16, A19, A20 and X1 medical records issued from Sree Gokulam Medical College and Research Foundation, Thiruvananthapuram, T.D Medical College Hospital, Alappuzha and Medical College Hospital, Thiruvananthapuram. She had sustained the following injuries: 1. Lacerated wound (+) over ® leg. 2. Abrasion (+) forehead. 3. Lacerated wound over chin. 4. Bilateral Subdural haemorrhage. 5. Bilateral frontal contusion. 6. Bilateral subarechnoid haemorrhage.” 4. The claimant was treated for these injuries for twenty-eight (28) days. She had sustained the following injuries: 1. Lacerated wound (+) over ® leg. 2. Abrasion (+) forehead. 3. Lacerated wound over chin. 4. Bilateral Subdural haemorrhage. 5. Bilateral frontal contusion. 6. Bilateral subarechnoid haemorrhage.” 4. The claimant was treated for these injuries for twenty-eight (28) days. On the basis of the materials on record, the Tribunal granted compensation as detailed in paragraph No. 22 of the Award which reads as follows: S. No. Head of claim Amount claimed Amount awarded Basic-vital details in nut shell 1 Loss of earnings 4,50,000/- --- NA 2 Transport to hospital 10,000/- 2,000/- Reasonable assessment 3 Medical expenses 2,16,393/- 31,200/- As per medical bills 4 Bystander’s expenses 50,000/- 8,400/- As per Ext.A13 5 Extra nourishment 5,000/- 2,000/- Reasonable assessment 6 Damages to clothing 500/- 500/- Reasonable assessment 7 Pain and sufferings 2,00,000/- 40,000/- Reasonable assessment 8 Loss of earning power 65,52,451/- 22,08,978/- 4,50,812 x multiplier 14 x 35% 9 Loss of amenities 2,30,000/- 10,000/- Reasonable assessment 10 Future treatment 1,00,000/- ----- ----- Total 78,14,344/- 23,03,078/- 5. I have heard Smt.V.Shylaja, learned counsel appearing for the appellant/claimant and Sri.Rajan V. Kaliyath, learned counsel appearing for the 3rd respondent Insurance Company. 6. The learned counsel for the appellant primarily contended on the fixation of the disability at 35% by the Motor Accident Claims Tribunal. According to the learned counsel for the appellant, the original disability fixed under Ext.A9 was 88%. However, the Insurance Company disputed the same and the claimant was referred to the Medical Board. The Medical Board by Ext.X1 Certificate found that the total disability suffered by the claimant is 79%. Out of the same, 40% was visual disability. At the time of the accident, the appellant was the Manager of M/s. Muthoot Finance and she had to discontinue the job after a few years after the accident. Still further the learned counsel for the appellant submitted that the appellant was on loss of pay leave which fact is proved by examining PW2. Had the Tribunal considered these cumulative facts, it would have certainly granted more compensation than what was ordered in the Award. 7. On the other hand, Sri.Rajan P.Kaliyath, learned counsel appearing for the respondent Insurance Company pointed out that the disability fixed by the Tribunal at 35% does not call for any interference. Had the Tribunal considered these cumulative facts, it would have certainly granted more compensation than what was ordered in the Award. 7. On the other hand, Sri.Rajan P.Kaliyath, learned counsel appearing for the respondent Insurance Company pointed out that the disability fixed by the Tribunal at 35% does not call for any interference. He relied on the schedule of the compensation as fixed under the provisions of the Workmen’s Compensation Act, 1923 to contend for the proposition that the disability fixed by the Tribunal is just and proper. 8. I have considered the rival submissions raised across the Bar and have perused the records. 9. On what basis the Tribunal decided to fix the percentage of disability is the point which would gain attention of this Court. No doubt, under Ext.A9, the disability is fixed at 88%. The same is proved by examining the Doctor who had issued the said certificate. Therefore, the burden cast upon the claimant has been discharged by her. However, since the Insurance Company disputed the Disability Certificate, the Tribunal in exercise of the powers under Rule 387 of the Kerala Motor Vehicles Rules, 1989 referred the matter to the Medical Board. Rule 387 of the Kerala Motor Vehicles Rules, 1989 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.” 10. The question of fixation of disability has been a moot point of dispute in many of the claims raised under the Motor Vehicles Act. The issue was settled by the Hon’ble Supreme Court in Raj Kumar Vs. Ajay Kumar, 2011 (1) KLT 620 (SC). In paragraph No. 12 of the aforesaid judgment, the Supreme Court held that if the Disability Certificate produced by the claimants is not satisfactory, the Tribunal may refer the party to the Medical Board. Paragraph No. 12 of the judgment of Supreme Court is extracted below: “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. Paragraph No. 12 of the judgment of Supreme Court is extracted below: “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” 11. However, can it be said that the claimant who had initially discharged the burden of proving disability certificate has to necessarily prove once again the certificate issued by the Medical Board. It is important to bear in mind that the claimant was referred to the Medical Board only because the Insurance Company raised a dispute regarding the quantum of disability. On examination of the claimant, the Medical Board assessed the total disability at 79%, out of which 40% was visual disability. Once the report of the Medical Board was placed before the Tribunal, again dispute was raised by the Insurance Company stating that the disability was on a higher side. In view of this, the Tribunal proceeded to fix the disability on its own and arrived at a figure of 35%. 12. Does the Tribunal have the power to fix the disability on its own? If the answer is affirmative, then it must be held that the Tribunal by itself is an expert in fixing the disability. In view of this, the Tribunal proceeded to fix the disability on its own and arrived at a figure of 35%. 12. Does the Tribunal have the power to fix the disability on its own? If the answer is affirmative, then it must be held that the Tribunal by itself is an expert in fixing the disability. On the other hand, if the irresistible conclusion is that the Motor Accident Claims Tribunal cannot independently fix the disability de hors the report of the Medical Board, then necessarily the award has to be interfered with. 13. To answer the question posed above in affirmative, this Court must assume that over and above the expertise of the Medical Board, the Tribunal is an expert in assessing the disability. However, that is not the correct legal position. True that the certificate of disability issued by the Medical Board is certainly a guiding factor. While assessing the compensation in totality, the Tribunal must consider the socio-economic background of the claimant(s). In such circumstances, to preserve the essence of justice, it becomes the duty of the Court to, at the very least, restore the claimant, as best as possible, to the position he/she was in before the occurrence of the disability, and to do so, it must award compensation in a liberal manner. 14. No material compensation can negate the trauma and suffering that the injured and his family faced. The law only knows the language of monetary compensation in such cases. It then becomes the duty of the court to translate the provisions of monetary compensation into a fabrication that helps the injured and his family in coping up with their loss. 15. Keeping these salutary principles in mind, if this Court proceeds to analyze the findings of the Tribunal, it becomes clear that the Tribunal assumed that as soon as the Insurance Company disputed the certificate issued by the Medical Board, it became the burden of the claimant to examine the Doctors who issued the certificate. This Court cannot be oblivious of the fact that it has become fashionable for the Insurance Company simply to raise objections on all counts so as to make the life miserable for a claimant because it does not want to pay the amount of compensation to the victim. This Court cannot be oblivious of the fact that it has become fashionable for the Insurance Company simply to raise objections on all counts so as to make the life miserable for a claimant because it does not want to pay the amount of compensation to the victim. This Court cannot ignore the fact that the Insurance Company derives huge profit by way of collection of premiums towards policy and that they are always reluctant to pay the compensation on a mere asking. Unless compelled by judicial orders, no Insurance Company voluntary comes forward for payment, though there may be a few exceptions. 16. The claimant initially proved Ext.A9 disability certificate by examining the Doctor who issued the same. It is further pertinent to note that there is no dispute raised by the Insurance Company qua the disability assessed by the Medical Board. Reading of the written statement of the Insurance Company reveals that there is no substantial dispute raised on the disability of the claimant. The denial is completely evasive and could not have formed the basis of the decision of the Tribunal. On the other hand, it is surprising to note that the claimant herself wanted her to be examined by the Medical Board and filed I.A. No 5124 of 2014. This application was filed perhaps apprehending that the Insurance Company would raise unwanted disputes on Ext.A9 certificate issued by the Ophthalmologist who was examined as PW1. 17. Based on her request, the appellant was referred to the Medical Board. Once the Medical Board assessed the disability, immediately came the next objection of the Insurance Company that the appellant has not examined the Doctors who examined her. This Court cannot shut its eyes to the reality and the difficulties faced by the claimant(s) in a motor accident claim that majority of the Doctors who were the members of Medical Board would show reluctance to depose before the Tribunal. A reading of the disability certificate shows that there was more than one Doctor on the Board while the appellant was examined. To discard their certificate simply because the Tribunal personally felt that the fixation of disability was on a higher side is not acceptable. It must be noted that on facts the Insurance Company failed miserably to substantiate their contention that fixation of the disability at 79 % was on a higher side. To discard their certificate simply because the Tribunal personally felt that the fixation of disability was on a higher side is not acceptable. It must be noted that on facts the Insurance Company failed miserably to substantiate their contention that fixation of the disability at 79 % was on a higher side. The Tribunal also went wrong in assuming the role of the Medical Board in fixing the disability. It certainly passes one’s comprehension as to how the Tribunal could discard the same. 18. A reading of paragraph No. 15 of the award passed by the Tribunal shows that it is applying the principles in Raj Kumar Vs. Ajay Kumar (supra) that the Tribunal fixed the disability at 35%. A reading of the judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar (supra) shows that nowhere in the said judgment the Supreme Court has laid down the principle that once the Medical Board gives its opinion, it is still open for the Tribunal to question the veracity of the same or a negative burden is cast upon the shoulders of the claimant again to prove the certificate issued by the Medical Board by examining the Doctors who examined the claimant on request of the Tribunal. 19. In this context, it is advantageous to note that a similar question came up before this Court in Sam K. Mani Vs. T.N. Sreedhara Kaimal and Others, 2014 KHC 6, wherein the Division Bench of this Court was called upon to consider the very same issue. A reading of the judgment shows that the Division Bench in fact has deprecated the act of the Tribunal in fixing the liability on its own despite the Medical Board having assessed a particular percentage of disability. The principles laid down in T.N.Sreedhara Kaimal (supra) being binding on the Tribunal, the Tribunal could not have fixed the disability at 35%. 20. Hence while answering the question posed as above, it is held that the Motor Accident Claims Tribunal is not an expert in fixing the disability of the claimant. Once the claimant has discharged his/her burden in a manner known to law in respect of a disability certificate, and that once the Tribunal exercises the power under Rule 387 of the Kerala Motor Vehicles Rules, 1989 and refers the claimant before the Medical Board, the consequent report has to be certainly given due weightage. Once the claimant has discharged his/her burden in a manner known to law in respect of a disability certificate, and that once the Tribunal exercises the power under Rule 387 of the Kerala Motor Vehicles Rules, 1989 and refers the claimant before the Medical Board, the consequent report has to be certainly given due weightage. Unless there are compelling circumstances before Tribunal, it has to accept the certificate and in a case if it chooses to discard the same, then definitely reasoning has to follow. In other words, a mere opinion of the presiding officer of the Claims Tribunal is not sufficient to discard the certificate of disability issued by the Medical Board. Once the Medical Board gave their opinion in the form of Ext.X1 Certificate and if the Insurance Company had dispute over the percentage of disability fixed by the Medical Board, then it should have summoned the Doctors at their instances to prove their case instead of shifting the burden to the shoulders of the claimant. Since the Insurance Company did not discharge the burden, the award of the Tribunal fixing disability at 35% is wholly fallacious and arbitrary and requires interference by this Court. 21. In the context of what is discussed above, this Court finds it difficult to accept that the argument of the learned Standing Counsel for the Insurance Company that the disability must be fixed in terms of the schedule to the Workmen’s Compensation Act, 1923. 22. Having found that the disability fixed by the Tribunal at 35% is erroneous, to what extent of the disability the appellant is entitled to claim is the next question to be decided by this Court. A perusal of Ext.X1 Certificate shows that the Medical Board has fixed a cumulative disability of 79%. This must be taken as a benchmark for calculating the compensation. Accordingly, it is ordered that 79% of the disability shall be fixed for the purpose of calculating the compensation. 23. The income of the appellant/claimant remains undisputed. Rs.4,50,812/- was taken as annual income. The appellant had proved that she was on leave for loss of pay for three (3) months. No compensation has been awarded under the said head. Therefore, for “loss of earnings” the appellant is entitled for compensation at Rs.1,12,703/- (450812/12 x 3). 23. The income of the appellant/claimant remains undisputed. Rs.4,50,812/- was taken as annual income. The appellant had proved that she was on leave for loss of pay for three (3) months. No compensation has been awarded under the said head. Therefore, for “loss of earnings” the appellant is entitled for compensation at Rs.1,12,703/- (450812/12 x 3). Since this Court has modified the percentage of disability at 79%, the compensation to be awarded under the head “loss of earning power” is modified as Rs.49,85,981/- (Rs.450812/-x 14 x 79%). Hence, the appellant/claimant is entitled to an additional compensation of Rs.27,77,003/- [Rs.49,85,981/- - 22,08,978/- amount already granted] under the said head. 24. The compensation under the head “pain and sufferings” is enhanced to Rs.75,000/- from Rs.40,000/-. 25. In the result, the appeal is allowed. The compensation granted by the Tribunal is enhanced as follows: S. No. Headings Awarded by the Tribunal Additional compensation granted by this Court 1 Loss of earnings for three months Nil Rs. 1,12,703/- (4,50,812/12 x 3) 2 Pain and sufferings additional compensation Rs. 40,000/- Rs.35,000/- (75000 - 40000) 3 Loss of earning power additional compensation Rs. 22,08,978/- Rs. 27,77,003/- (Rs. 49,85,981/- - 22,08,978/-) Total Additional compensation Rs. 29,24,706/- 26. The appellant is entitled for an additional compensation of Rs.29,24,706/- (Rupees twenty nine lakhs twenty four thousand seven hundred and six only). She is entitled for interest at 9% per annum from 09.05.2013 till realization with roportionate costs on the enhanced compensation. The Insurance Company shall deposit the enhanced compensation together with interest and proportionate costs within a period of one month from the date of receipt of a copy of this judgment. The claimant shall furnish the details of the bank account to the Insurance company for transfer of the amount. The Appeal is ordered accordingly. No order as to costs.