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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
THE HONOURABLE MR. JUSTICE P.D.RAJAN
&
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 12TH DAY OF NOVEMBER 2014
OP (MAC).No. 2275 of 2011 (O)
AKHIL @ AKHIL ANAND.P
Vs
THE MANAGING DIRECTOR, KERALA STATE ROAD
TRANSPORT CORPORATION,
Citation; AIR 2016(NOC)254 kerala
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
O.P (MAC) No.2275 of 2011
13
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
O.P (MAC) No.2275 of 2011
14
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
O.P (MAC) No.2275 of 2011
15
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
O.P (MAC) No.2275 of 2011
16
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
O.P (MAC) No.2275 of 2011
17
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
O.P (MAC) No.2275 of 2011
18
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
O.P (MAC) No.2275 of 2011
19
'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:-
" 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).
Sd/-
(K.T.SANKARAN, JUDGE)
Sd/-
(P.D.RAJAN, JUDGE)
Sd/-
(P.UBAID, JUDGE)
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