IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8468 of 2010(G)
1. MINI.P.K., W/O.MADHU, AGED 34 YEARS,
... Petitioner
Vs
1. ABDUL NAZAR, S/O.MUHAMMED,
... Respondent
2. ABDUL MANAF, S/O.MUHAMMED,
3. THE NEW INDIA ASSURANCE COMPANY LTD.,
For Petitioner :SRI.K.M.JAMALUDHEEN
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :04/11/2010
O R D E R
"C.R."
C.T.RAVIKUMAR, J.
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W.P(C)N.8468 of 2010
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Dated 4th November, 2010
JUDGMENT
The petitioner who is the claimant in O.P.(M.V)No.1966 of
2006 on the file of the 2nd Additional Motor Accidents Claims Tribunal,
Kozhikode filed this writ petition on being aggrieved by Ext.P3 order
whereby the petition filed under Rule 387 of the Kerala Motor Vehicles
Rules, 1989 (for short `the Rules’) was dismissed. The petitioner who
claimed to have sustained injuries in a motor accident occurred on
30.8.2006 filed the above claim petition claiming compensation to the
tune of Rs.2,00,000/-. The contention of the petitioner is that Ext.P1 and
other medical reports were produced along with the claim petition. Ext.P1
would reveal that she had sustained fractures on L1 and L2, fracture on
coccyx, fracture lateral end of clavicle right, abrasions shoulder right,
wrist 2 x 2 cm, occipital region, soft tissue injury. The claim of the
petitioner is that she has incurred permanent disability on account of the
injuries sustained in the said accident. Therefore, the petitioner has filed
Ext.P2 application under Rule 387 of the Motor Vehicles Rules with a
prayer to refer her to a Medical Board for assessing the percentage of
disability. According to the petitioner, she has produced all the necessary
WP(C).No.8468/2010 2
documents along with the claim petition. In the said circumstances she
has not elaborately explained all matters in Ext.P2. As per Ext.P3 the said
application was dismissed as hereunder:-
“Medical Board Petition dismissed.”
2. Whether the order in Ext.P3 dismissing Ext.P2 petition filed
under Rule 387 of the Rules carrying the prayer to refer the petitioner to
the Medical Board for assessing her disability in the above manner can be
said to be a proper exercise of power under the said rule is the question
that arises for consideration. Rule 387 of Motor Vehicles Rules reads
thus:-
“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.”
(emphasis supplied)
Thus, scanning of the above provisions would undoubtedly reveal that on
receipt of such an application filed under Rule 387 of the Rules the
Tribunal has to consider whether it is necessary to 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 to
issue disability certificate indicating the degree and extent of the
WP(C).No.8468/2010 3
disability, if any, sustained as a result of the accident. The scope of the
words `considers it necessary’ has been considered by the Hon’ble Apex
Court in Barium Chemicals v. A.J.Rana (AIR 1972 SC 591). Going by
the Apex Court’s decision in Barium Chemicals’ case the words
`considers it necessary’ postulates that the authority concerned has
thought over the matter deliberately and with due care and, it has been
found necessary as a result of such thinking to pass the order. In fact,
the very word `consider’ connotes an active application of mind. It is the
discussion on a matter in issue and assigning the reasons for arriving at
the conclusions reached on the matter of discussion that would reflect the
application of mind.
3. In the context of the case it is also apposite to refer to
Rule 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 Rule 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 Rule 387 of
the Rules without any application of mind cannot be said to be a true
exercise of power.
WP(C).No.8468/2010 4
4. Now, I may examine the sustainability of the challenge
against Ext.P3 order. As already noticed hereinbefore, it is a single line
order as hereunder:-
“Medical Board Petition dismissed.”
In the light of the above discussion I have no hesitation to hold, on a
scanning of the said order, that it reflects non-application of mind and it
cannot be construed as an order passed in proper exercise of the power
under Rule 387 of the Rules. The decision making process as is obvious
from Ext.P3 calls for interference. Accordingly, Ext.P3 is set aside and the
Claims Tribunal is directed to consider Ext.P2 application viz., I.A.No.2672
of 2008 in O.P.(MV) No.1966 of 2006 afresh in accordance with law. The
Tribunal shall proceed further with the claim petition only after passing
such orders on Ext.P2.
The writ petition is disposed of accordingly.
C.T.RAVIKUMAR
Judge
TKS