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P. Akhil @ Akhil Anand v/s The Managing Director, Kerala State Road Transport Corporation, Thiruvananthapuram & Another


Company & Directors' Information:- ANAND TRANSPORT PRIVATE LIMITED [Active] CIN = U60231TN2010PTC078119

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- ANAND TRANSPORT COMPANY PRIVATE LIMITED [Strike Off] CIN = U63030CT1955PTC000803

    OP (MAC) No. 2275 of 2011 (O)

    Decided On, 12 November 2014

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.T. SANKARAN
    By, THE HONOURABLE MR. JUSTICE P.D. RAJAN & THE HONOURABLE MR. JUSTICE P. UBAID

    For the Petitioner: K.V. Reshmi, Advocate. For the Respondents: Babu Joseph Kuruvathazha, V.V. Nandagopal Nambiar, Advocates.



Judgment Text

P. Ubaid, J.

1. The question of law referred to us for resolution is very short and simple, concerning the practical application of Rule 387 of the Kerala Motor Vehicles Rules (hereinafter referred to as 'the Rules' for short) , which reads as follows:

'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.'

2. The petitioner herein is the claimant in O.P (MV) No.1424 of 2010 of the Motor Accidents Claims Tribunal, Kozhikode. Pending the proceedings, he filed application as I.A No.6026 of 2010 under Rule 387 of the Rules for a direction for his examination by a Medical Board for the assessment of the nature and extent of his permanent disability, which he alleges. The learned Trial Judge directed the petitioner to be present in open court in view of the directions of this Court in Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904], for personal examination of the petitioner to know and perceive his physical disability, before passing orders for examination by a Medical Board. When the petitioner failed to appear in court, the learned Trial Judge dismissed the said application by order dated 11.3.201. The said order is under challenge in this Original Petition(MAC).

3. When this Original Petition came up for hearing, a learned Single Judge of this Court doubted the correctness of the directions in Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904], and accordingly, referred the matter for decision by a Division Bench. Finding disagreement with the views taken in Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904], the Division Bench referred the question of law involved in the matter, for decision by a Full Bench.

4. The short question of law for consideration is whether the Motor Accidents Claims Tribunal is bound, under Rule 387 of the Rules, to examine the claimant physically to know and perceive the extent and degree of his permanent disability, before ordering examination by a Medical Board, for the assessment of the degree and extent of his permanent disability. So also, another question is involved; whether the petitioner, in a proceeding under Rule 387 of the Rules or otherwise, is always bound to make appearance personally for the assessment of his physical disability by the Tribunal.

5. At the outset itself, we would like to make it clear that Kalesh v. Sudheer [ 2010 (1) KLT 537] has no binding force as a precedent, because it is only an interim order. However, those guidelines were repeated by the same Division Bench in Sundaran v. Shaju [2011 (3) KLT 904]. This decision has binding force, and is being followed by the Motor Accident Claims Tribunals in Kerala. In Kalesh v. Sudheer [ 2010 (1) KLT 537], the Division Bench held thus:

'7. We note that practically in every case where there is a physical disability and a claim for compensation for reduction in earning capacity, there is a dispute about the extent of physical disability. The Tribunals mark the Disability Certificates without examining the author thereof. This leaves the claimant guessing as to whether he need/should examine the expert who issued the same. Invariably in such cases a contention is raised that opportunity to examine the expert is not given. Most Tribunals do not care to examine and to make a record of the physical condition of the claimant to ascertain for themselves existence and the extent of physical disability. This leads to a very unenviable situation before the superior courts.

8. We therefore suggest that in every case where there is a disability, the Tribunal must invariably (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 proceeds paper. The same must be read over to the parties/counsel. Such recording must be extracted in the award. We are conscious of the fact that 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.'

6. In Sundaran v. Shaju [2011 (3) KLT 904], the very same Division Bench repeated the directions made in Kalesh v. Sudheer [ 2010 (1) KLT 537] and made it the onerous responsibility of all Motor Accident Claims Tribunals to personally examine all claimants in motor accident claims, involving question of permanent disability.

7. In fact, the answer to the question of law is very simple. The fundamental principle of interpretation of statutes will give the answer, that nothing extraneous or alien can be read into a statute, or the provisions thereof, when the language of the statute is plain and unambiguous, and the object is self evident. We find that Rule 387 of the Rules is self evident regarding the object. That Court is expert of all experts is only a judicial concept. Even as expert of experts, the court will have its limits, limitations and constraints as a non-expert. The function of the court as expert of experts is to assess and judge the reasoning, rationale and acceptability of the assessment made by the expert in the field. When a question of permanent disability arises in a claim under the Motor Vehicles Act, and if the claimant makes application for examination by a Medical Board under Rule 387 of the Rules, the court can direct the petitioner to be present in court for examination and assessment of the degree and extent of the alleged permanent disability. Rule 387 nowhere provides that the Tribunal shall in all cases direct personal appearance of the party for the assessment and perception of the degree and extent of the disability alleged by him.

8. In Mini v. Abdul Nazer and Others [2011 (1) KLT 90] a Single Bench of this Court, relying on Barium Chemicals v. A.J.Rana [AIR 1972 SC 591] held that while considering an application for medical examination under Rule 387 of the Rules, the Tribunal should consider whether it is necessary to direct any Medical Officer or Medical Board to examine the injured and to issue disability certificate indicating the degree and extent of the disability. Of course, Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904] were not referred to in the said case, because, the question involved was only regarding the satisfaction for an order for medical examination under Rule 387 of the Rules. It is pertinent to note that in Kalesh v. Sudheer [ 2010 (1) KLT 537], the directions made by the Division Bench are in fact general in nature, and without specific reference to Rule 387 of the Rules. In Sundaran v. Shaju [2011 (3) KLT 904] also specific reference was not made to Rule 387 of the Rules.

9. Coming to the interpretation of Rule 387 of the Rules, we find that the words 'may' and 'if it considers necessary', are very important in deciding the role of the Motor Accidents Claims Tribunal in taking decision on an application made for examination by a Medical Officer or Medical Board. The words ' if it considers necessary'' will indicate that it is fully within the discretion of the court to consider whether the claimant who alleges permanent disability should be examined by a Medical Board or a Medical Officer. So also, the word 'may' indicates the discretion of the Tribunal under Rule 387 of the Rules.

10. As already observed, the Motor Accidents Claims Tribunal, will always have some limits and limitations. Of course, if the Trial Judge finds the absolute necessity of such physical examination before ordering examination by a Medical Officer or Medical Board, the Tribunal can direct the party to be present in court for such examination. When there is no such absolute necessity, the Tribunal can go through the available documents including medical documents, showing the nature and consequence of the injury sustained by the claimant and also the possible degree and extent of the disability sustained by the claimant; physical or occupational. When the Tribunal finds the necessity of such examination by a Medical Board or Medical Officer on examination of the documents, the Tribunal can straight away direct such examination. Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904], have made it an onerous function that every Tribunal should examine the claimant physically whenever permanent disability is alleged by the claimant. This will create unpleasant situations in the administration of justice. The Tribunal, which personally and directly assessed the degree and extent of disability, may find himself in an embarrassing situation when contest comes regarding the nature and extent of the permanent disability alleged by the claimant. As already observed, the function of the Tribunal as expert of experts must be to assess and judge the assessment made by the expert in the field on the basis of the principles of theory and practice in the field. The Tribunal, claiming to be expert of experts cannot take over that function. Of course, the Tribunal can make such examination, for a prima facie satisfaction for the purpose of Rule 387 or for a just decision in the case. There can be situation where the claim of disability made by the claimant is false, or disability can even be pretended. When the court finds such possibilities on a consideration of the nature of the injuries and the possible consequences, the court can proceed to make such an assessment. But, it cannot be a compulsory practice or function in all the cases brought under the Motor Vehicles Act.

11. In the present case, the learned Trial Judge dismissed the application on the simple ground that the claimant did not make appearance personally for examination. This is not a case where the learned Trial Judge directed the claimant to be present on a satisfaction regarding the necessity of examination. The learned Trial Judge directed so only because of the directions and guidelines in Kalesh v. Sudheer [ 2010 (1) KLT 537]. Of course, in a case where the Tribunal found the absolute necessity of such examination physically, and the claimant failed to appear in court as directed by the Tribunal, the Court can rightly draw adverse inference as regards the permanent disability claimed and alleged by the claimant. It depends upon the facts and circumstances of each case. When an application is made under Rule 387 of the Rules, and the claimant failed to make appearance personally in spite of the direction made by the court, the application can be dismissed. However, the case will have to be ultimately decided on merits, and the question of disability will have to be decided by the Tribunal on the basis of the materials available, including the medical documents.

12. We respectfully disagree with the view taken by the Division Bench in Kalesh v. Sudheer [ 2010 (1) KLT 537] and Sundaran v. Shaju [2011 (3) KLT 904]. We make it clear that Motor Accidents Claims Tribunals will have discretion to decide whether a claimant who has put forward a claim of permanent disability should be examined by a Medical Board or not. For the said purpose, the Tribunal will have discretion to decide whether the claimant should be directed to be present in court in person. We also make it clear that even after the examination of the petitioner by a Medical Board or Medical Officer, on application brought under Rule 387 of the Rules, the Tribunal can direct personal appearance of the petitioner, if such a course is necessary for taking just decision regarding the nature and extent of the permanent disability. Accordingly, we set aside the impugned order of the court below, restore the said application to files, and direct the court below to pass orders afresh on I.A No.6026 of 2010. The parties will make appearance in the court below on 20.01.2015.

P.D. Rajan, J.

13. I have gone through the judgment of my brother Judges, Justice K.T.Sankaran and Justice P.Ubaid and I fully agree with their views. Still, I wish to add some more points in this judgment, keeping in mind that it is unnecessary to repeat the facts here again. The Motor Vehicle Act 1988 enacted by the Parliament, empowers the State Government to make rules for the purpose of giving effect to the provisions of Section 165 to 174. Accordingly, Government of Kerala enacted the Kerala Motor Vehicle Rules 1989 and Rule 387 of the above Rules says about the examination of the injured by a Medical Officer. It says that the 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 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.

14. In Kalesh V. Sudheer (2010(1)KLT 537) a Division Bench of this court held that the Tribunal must invariably direct the claimant to be present personally before 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 proceeding paper. And further directions were also given in the same judgment which were followed in another division bench decision in Sundaran V. Shaju (2011 (3) KLT 904). While interpreting the above legislative provision, their Lordships in Kalesh's case (supra) insisted the presence of the petitioner/claimant before the Tribunal prior to referring the party to a Medical Officer in a Government Hospital or in a Medical College Hospital or to a Medical Board. Hence, the above view was disagreed by another Division Bench and then, the matter referred to this Full Bench for detailed consideration.

15. The words used in Rule 387 is that the Claims Tribunal 'may if it considers necessary'. In New Webster's Dictionary of the English Language, Deluxe Encyclopedic Edition, the meaning of the word 'consider' is explained as 'to think on with care', to study, to mediate on, to observe and examine, to respect, to take into view in examination, and to judge to be, etc. The meaning of the word 'necessary' is explained as 'unavoidable', 'indispensable', 'inevitable', 'essential' and 'requisite' etc. The rule making authority deliberately used the word 'considers necessary' which confers a discretion. Therefore, it ensures an active application of mind by the Tribunal for obtaining disability certificate. The nature and extent of injury in the wound certificate necessitated the injured to be referred to the Medical Board and the Tribunal can direct him to the Medical Officer. The injured should then appear before the Medical Officer in a Hospital or Medical Board to examine him with relevant documents for obtaining a disability certificate. Therefore, under Rule 387, the Legislature seems to have thought that for the examination of the injured, if necessary, the Tribunal can summon the claimant/injured. It does not mean that in all cases, the Tribunal must summon the petitioner or the injured. There may be certain circumstances to summon the victim or the claimant before the Tribunal for verification of the alleged disability. In such circumstances, there is no bar for the Tribunal for summoning the injured/claimant invoking Rule 387.

16. The word 'considers' has been discussed by the Apex Court in Divisional Personnel Officer Southern Railway V. T.R.Challipran (AIR 1975 SC 2216). In paragraph 21, it was held as follows.

'We feel that we are not in a position to go to the extreme limit to which the Rajasthan High Court has gone. The word 'consider' has been used in contradiction to the word 'determine'. The rule-making authority deliberately used the word 'consider' and not 'determine' because the word ' determine' has a much wider scope. The word 'consider' merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge'.

It is the duty of the Court to give the same effect of the language used in a Statute while interpreting it. Apex Court in The New Piece Goods Bazaar Company Ltd. v. Commissioner of Income Tax, Bombay [AIR (37) 1950 SC 165] paragraph 14, held that it is elementary that the primary duty of a Court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention.

17. 'Disability' means incapability or incapacity to do any legal act which may either be total disability or partial disability and may be temporary or permanent nature. Permanent impairment is purely medical condition which is constant and without any improvement. While assessing disability on the basis of impairment, due consideration must be given to the future changes of the injured. Disability in motor accidents includes locomotor disability, blindness, low vision, hearing disability, mental illness, multiple disabilities etc and the assessment of such impairment is within medical capableness. There is every chance of increase of such impairments which can be considered by a medical officer while assessing the nature of impairment. For evaluation of such impairment the doctor must be well versed in anatomy, physiology, principles of orthopedics and rehabilitation. He should also obtain the details of the occupation of the injured and how the injuries reduced his functional capacity. Therefore in effect the personal appearance of the injured before tribunal at pre-assessing stage did not serve the purpose of the Rule.

18. The object of rule making is to provide a procedure ancilliary to the provisions of the Act. In subordinate legislation by the government, the legislature delegates the duty of framing rules for carrying out the policy and object of the Statute. The Court should, while elucidating the delegated legislation, take caution in interpreting the said Rules in the same standard as in the original enactment. The interpretation of statutes is mainly aimed to gather the intention of the Legislature, which must be found in the words of the enactment. Therefore, the primary duty of the Court is to interpret the statutes to gather the intention of the Legislature alone. If an interpretation, which is against the wording, is given, it would amount to making a law, which is not the function of a court. If such constructions are made by a Court, which will lead to hardship, inconvenience and absurdity in the legislative process, which should be avoided by a Court of law.

19. The court while considering the subordinate legislation in the style of rules, orders or regulations the court should adopt and interpret it in the same standard of the main enactment. A Full Bench of the Calcutta High Court in Dhirendra Nath Bara V. Nurul Huda & others (AIR 1951 Calcutta 133) in paragraph 22 held as follows:-

'It is the duty of the Court to construe these sections and to construe them according to the language used. It is not for a Court to speculate as to what the legislature should or might have said. Regard can only be had to what the legislature has said'.

Therefore it is clear that the duty of the court is to follow the provisions of an enactment in its letter and spirit and construe them according to the language used therein. In State of Kerala V. Mathai Varghese (AIR 1987 SC 33), the apex court while interpreting Section 489 (A) IPC held as follows:-

'The High Court cannot do so for the Court can merely interpret the section; it cannot re-write, recast or redesign the section. In interpreting the provision the exercise undertaken by the Court is to make explicit the intention of the legislature which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to 'legislate' have not been conferred on the Court. A Court can make a purposeful interpretation so as to 'effectuate' the intention of the legislature and not a purposeless one in order to 'defeat' the intention of the legislators wholly or in part.

20. Apex Court interpreted the word 'held' while discussing Section 9 of the UP Zamindar Abolition and Land Reforms Act 1950, and decided as follows:-

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/> 'Before considering the meaning of the word 'held' in Section 9, it is necessary to mention that it is proper to assume that the law makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by considerations of justice and reason. Justice and reasons constitute the great general legislative intent in every piece of legislation. Consequently, where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conception of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the Legislature, there is little reason to believe that it represents the legislative intent'. 21. A Judge should not allow himself to be controlled by his own personal aspiration while deciding the right of the parties to a litigation but he must apply the law according to the fact of the particular case. He is supposed to take a decision on all complicated issues before him by applying his intellect on proper understanding. When he acts without conceiving the true sense of the words, then the manner of expression, would be unrealistic and undeserving. Therefore, the duty of a Judge is confined to interpretation of the law within the domains of recognised canon of interpretation. In order to perceive the binding force of a decision in a case, it is always necessary to see what all facts were considered by the Judge and what points were clarified. Therefore, a judicial decision is a precedent which itself contains a principle. When that principle forms into an authoritative element which can be called a ratio dissidendi of the case, which alone has the force of law. While interpreting Rule 387 of Kerala Motor Vehicles Rules in Kalesh's case, no precedent was referred by their Lordship and no law has been established in the above decision. Considering the above legal principle, I also express my respectful disagreement with the view taken by the Division Bench in Kalesh's case and Sundaran's case (supra).
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