The Kerala High Court on 16 August, 2011 in Sundaran @ Sudhan Vs. Shaju, 2011 (3) KLT 904 : ILR 2011 (3) Ker. 824 has held that “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.
A bench comprising of Justice R. Basant and Justice M.C. Hari Rani observed that “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. That would help superior courts also,” the judgment said.
# Observations in Kalesh v. Sudheer, 2010 (1) KLT 537
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.
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 very valuable input to appreciate the Disability Certificate and to ascertain the extent of reduction in earning capacity consequent to the alleged physical disability.
Parties/counsel and the Tribunals must insist and ensure that such course is followed. When the Tribunal feels that the disability certificate marked cannot be accepted without proof, the Tribunal shall always have the option to direct the parties to offer proof thereof or to direct the injured/victim to appear before the Medical Board to assess the extent of physical disability competently.
In spite of the observations in paragraph 8 of KALESH supra the Court finds that the Tribunals even now are not physically verifying the alleged physical disability and making a note thereof in the case records. Such observations, are not extracted in the awards also. Such observations, if made would considerably help the Tribunal itself and also the superior courts to consider the claims for disability. Even when formal proof is not offered for disability certificates, and even when the disability certificate does not fully inspire Tribunals, such observations made by the Tribunals shall be of help to the Tribunals and superior courts to come to just and reasonable conclusions.
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 Court noted that in spite of the specific observations in paragraph 8 of Kalesh, the Tribunals are not following the practice scrupulously. So, the Court directed the registry in paragraph 10 of Kalesh’s case to communicate the observations/directions to all Accident Claims Tribunals for future strict compliance.
The purpose does not seem to be achieved by the said direction. For the reasons which have been mentioned in paragraph 10 of Kalesh, the Court feels that a further attempt must be made to ensure that specific directions to the above effect are conveyed to all Tribunals for future guidance and strict adherence. Such adherence by the Tribunals will help considerably in reducing the unnecessary contentions and would help the courts to discharge the primary mandate under Section 168 of the Motor Vehicles Act to ensure that just compensation is made available to the victim.
The Court directed the registry to communicate copy of this judgment to all Tribunals. All Tribunals shall ensure that the direction in paragraph 8 of KALESH supra is scrupulously complied with.
# Facts of the Case
The short question that arises for consideration in this appeal is 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 ?
The appellant/claimant suffered injuries in a motor accident, which took place on 01.04.2001. He claimed 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.
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.
# Did the claimant suffer any disability ?
The certificate shows that the claimant had suffered 12% disability. 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 in these circumstances, that the Tribunal did not accept the case of the appellant that he had suffered permanent disability. However, taking note of the natural a global amount of Rs.6,000/- under the head of physical disability.
The appellant did not choose either to examine the author of disability certificate or to request the Tribunal to refer him to the medical board. He did not despite the specific observations extracted above, request the Tribunal to make a record of the physical disability as perceived by the Tribunal. The impugned award does not specifically say that the Tribunal had issued a direction to the appellant to appear before it to verify the physical disability, but in paragraph 11 of the impugned award, it is very specifically stated that the claimant/appellant “has not turned up”. It does evidently suggest that the Tribunal wanted the claimant/appellant to appear but he did not oblige by appearing before the Tribunal.
The learned counsel for the appellant finally prayed that an opportunity may be granted to the appellant to get disability assessed afresh competently by a Medical Board. In appropriate cases, the court has been issuing such directions also. But in the facts and circumstances of this case, Judged by the conduct of the appellant of not examining the author of disability certificate; of not requesting the Tribunal to refer him to the Medical Board and of not even appearing before the Tribunal to enable it to record the disability if any, the Court opined that such luxury of a further opportunity need not be afforded to the appellant.