IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 202 of 2010()
1. ABDUL KHADER, AGED 59 YEARS, S/O.
... Petitioner
Vs
1. BABY, S/O. PAILY VARGHESE,
... Respondent
2. THE NATIONAL INSURANCE COMPANY LTD.,
3. UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SMT.M.A.VAHEEDA BABU
For Respondent : No Appearance
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :22/03/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.202 OF 2010
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Dated this the 22nd day of March 2010
JUDGMENT
Basheer, J.
This appeal illustrates how the jurisdiction which is conferred on Tribunals
and this court to reach out to the victims of motor accidents can be misused, if
constant vigil is not maintained while dealing with claims for compensation.
2. Appellant alleged that he sustained certain injuries in a road traffic
accident while he was travelling on a two wheeler. His case was that another two
wheeler hit against his bike resulting in a fall leading to injuries which are
extracted herein below:
(1) Multiple abrasions on left elbow.
(2) Multiple abrasions on left knee.
(3) Swelling around left knee with tenderness on left tibia.
3. According to the appellant, he got himself admitted in Najath hospital at
Aluva after the accident. He was discharged on the third day “in a good
condition” as is revealed from the Ext.A5 wound certificate issued by Najath
Hospital.
4. Appellant claimed a total sum of Rs.2,50,000/- as compensation for the
injuries which he allegedly sustained in the accident. He pressed into service
Exts.A1 to A13 documents in support of his claim. One of the senior officers of
M/S Fertilisers and Chemicals, Eloor, was examined to speak about the monthly
salary of the appellant in which he was stated to have been working as Senior
Technician. The Tribunal, after considering the oral and documentary evidence
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on record, came to the conclusion that appellant was entitled to get only a sum of
Rs.35,625/- and accordingly passed an award which is impugned in this appeal.
5. Mrs.Vaheeda Babu, learned counsel for the appellant, contends that the
Tribunal committed serious illegality in refusing to award just and reasonable
compensation, especially, keeping in view the long term treatment that the
appellant had undergone at various hospitals in connection with the injuries.
6. When we queried the learned counsel about the so called prolonged
treatment, a huge bundle of medical records was made available for our perusal.
The file revealed that the appellant had visited not less than 27 hospitals apart
from various other medical laboratories allegedly in connection with the
treatment of the above injuries sustained by him. The records further revealed
that he had visited several other doctors also for problems like stomach ailment,
chest pain, etc. He had also visited scores of laboratories to conduct examination
of blood, urine, etc. He had also taken ECG and conducted other tests as well in
the course of the so called “prolonged treatment”.
7. In fact the appellant had produced large number of bills before the
Tribunal as Ext.A12 series. The Tribunal noticed that many of the bills were in
the names of several other persons and that too apparently for purchase of
medicines which were not at all connected with the alleged injury sustained by
the appellant. The Tribunal took pains to segregate the bills relevant to the
accident and found that only a sum of Rs.5,374.72/- could be granted to the
appellant whereas the claim made by him under the head of medical expenses
was around Rs.47,973/-.
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8. As mentioned earlier, Ext.A5 is the accident register cum wound
certificate issued by Najath Hospital where the appellant was admitted on
October 6, 2003 on which day he allegedly sustained injuries in the accident. It
is seen from the certificate that he was discharged from the hospital on October
9, 2003 ‘in a good condition’. Of course, apart from the three injuries which we
have extracted in the earlier part of this judgment, the certificate revealed that x-
ray showed crack on lateral condyle of left tibia. Obviously for that reason, he
was put treated as an in-patient treatment for three days for post-traumatic
stiffness. Anyhow, thereafter the appellant is seen to have visited one hospital
after another and obtained certificates and other connected records for his visit.
9. Two other certificates which have been pressed into service by the
appellant are Exts.A10 and A11. These are seen issued from Sree Sudheendra
Medical Mission Hospital, Ernakulam and the Jubilee Mission Hospital, Thrissur
respectively. Ext.A10 is dated April 7, 2005 (nearly two years after the accident)
which refers to a consultation made by the appellant in connection with some
discomfort in his knee. The doctor who examined the appellant certified that he
had pain on left knee. The certificate issued by Jubilee Mission Hospital, Thrissur
which was marked as Ext.A11 also refers to the injury on the knee. There is no
explanation as to why the appellant went to these hospitals and collected these
certificate. But curiously the appellant did not bother to step into the box nor did
he examine any of the doctors to speak about the accident and the injuries.
10. However, the appellant contends that the Tribunal committed serious
illegality in refusing to award the entire amount for the medical treatment
covered under the medical bills produced by him. We have already referred to
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that aspect. The Tribunal found majority of the bills were in the name of various
other persons. Moreover, the bills were for conducting laboratory test, ECG and
for purchase of medicines which apparently did not have any nexus to the alleged
injury sustained by the appellant. In that view of the matter, we do not find any
reason to disagree with the view taken by the Tribunal.
11. The other contention raised by the learned counsel is that the Tribunal
committed grave error in refusing to keep in view the monthly income of the
appellant. In this context, it may be noticed that appellant had examined one of
the managers of the company where the appellant had been working. Curiously,
this witness stated that the appellant had not lost any salary for the period during
which he was absent from duty. In other words, there was no loss of income for
the appellant in connection with the accident.
12. It is true that the police had registered a crime against respondent
No.1 in connection with the accident. The Tribunal found that in the absence of
any contra evidence, respondent No.1 alone was responsible for the accident. But
in this context, it may be noticed that for the alleged accident on October 6, 2003,
a crime was registered, at the instance of the appellant, only on October 9, 2003.
According to the appellant, he could not inform the matter to the police because
he was admitted in the hospital. Anyhow, we do not propose to deal with that
aspect of the matter any further. Having considered the entire materials
available on record, we have no hesitation to hold that this litigation is yet
another instance of abuse of process.
13. Of late, it is being noticed that several appeals are being filed by
claimants without any compunction, even in cases where adequate compensation
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has been awarded by the Tribunals. One reason may be that a fixed court fee of
only Rs.100/- is being levied on an appeal filed under Section 173 of the Motor
Vehicles Act against the award passed by the Tribunals.
14. Rule 396 of the Kerala Motor Vehicles Rules 1989 deals with the
procedure to be followed while filing appeal against the award of a Claims
Tribunal. Sub Rule (2) stipulates that the appeal memorandum shall be
accompanied by the fee prescribed in Sub- rule (3) of Rule 397.
15. Rule 397(1) prescribes the scales of fee payable on an advalorem basis,
by a claimant on an application for compensation to be filed before the Tribunal.
For an amount upto Rs.5,000/-, a court fee of Rs.10 has to be paid. From
Rs.5,001 to Rs.50,000/-, the fee payable is Rs.10 plus <% of the amount by which
the claim exceeds Rs.5,000/-. From Rs.50,001 to Rs.1,00,000/-, the fee payable is
Rs.122.50 plus =% of the amount by which the claim exceeds Rs.50,000/- and for
a claim of over Rs.1,00,000/- the fee payable is Rs.372.50 plus 1% of the amount
by which the amount of claim exceeds Rs.1,00,000/-. Of course the Tribunal is
given the discretionary power to exempt the party from the payment of the fee
prescribed under sub-rule (1).
16. But Sub-rule (3) postulates that the fee for an appeal shall be rupees
one hundred only. In other words, on a memorandum of appeal court fee is not
payable on advalorem basis or in tune with the scales which we have referred to
above, as in the case of claim petitions. We do not understand the rationale
behind this.
17. Anyhow, we do not propose to question the wisdom of the rule making
authority. In our view, the legislature has to bestow its attention on this aspect
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atleast to ensure that the appellate court (in this case the High Court) is not
flooded with frivolous appeals.
18. In many instances, we notice that several claimants are challenging the
awards from the Tribunals on an experimental basis, and that too in cases in
which statutory period of limitation is over with petitions to condone delay.
Ultimately in many cases delay will be condoned for one reason or the other. We
are only trying to highlight the fact that many appeals are being filed before this
court apparently for the reason that there is no liability to pay any court fee on an
advalorem basis. Only a nominal sum of Rs.100/- is being levied on such appeals.
This litigative adventurism should be curbed atleast to weed out frivolous and
merit-less appeals. We are sure that the attention of the authorities concerned
will be bestowed on this aspect.
19. As far as the merit of this appeal is concerned, we have already held
that it is totally frivolous. Therefore the appeal is dismissed. Though this is a fit
case in which exemplary cost should be awarded, we refrain from doing so.
Communicate a copy of this judgment to the Chief Secretary of the State
forthwith to be placed before the Government for appropriate action.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
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