High Court Kerala High Court

The Oriental Insurance Co. Ltd vs Martin.M.R. on 15 March, 2010

Kerala High Court
The Oriental Insurance Co. Ltd vs Martin.M.R. on 15 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2816 of 2009()


1. THE ORIENTAL INSURANCE CO. LTD.
                      ...  Petitioner

                        Vs



1. MARTIN.M.R. S/O. RAPHAEL
                       ...       Respondent

                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)

                For Respondent  :SRI.G.BALAMURALEEDHARAN (PARAVUR)

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :15/03/2010

 O R D E R
                      M.N. KRISHNAN, J.
               = = = = = = = = = = = = = =
                M.A.C.A. NO. 2816 OF 2009
             = = = = = = = = = = = = = = =
         Dated this the 15th day of March, 2010.

                      J U D G M E N T

This appeal is preferred against the award of the Motor

Accidents Claims Tribunal, North Paravur in O.P.(MV)554/04.

The claimant who had sustained a fracture on the upper end

of the right tibia is assessed 7% disability by the Tribunal

and the compensation is calculated. Assessment of disability

without the help of a disability certificate under ordinary

circumstances is a very hazardous task which a Court cannot

afford to take. If the Court feels a person is having

disability, the Court has got the power under the provisions

of the M.V.Act to refer that person to a Medical Board and

obtain a report or certificate as the case may be and after

hearing the parties concerned can award compensation.

There are cases where disability certificates are produced

and the Courts are in the habit of decreasing or increasing

the disability and calculate the compensation. In such cases

there are at least some materials before the Tribunal given

M.A.C.A. 2816 OF 2009
-:2:-

by an expert which can be gone into and without those

materials it is not proper for the Tribunal to assess the

disability correctly. I make it very clear that I am not

making any observation to the effect that there is no

disability at all for the petitioner herein. So the methodology

now is to remit the case back to the Tribunal and refer him to

a Medical Board with an expert Orthopedic specialist, get

certificate and then decide the matter in accordance with

law. The insurance company also has the risk of paying

higher compensation if the disability assessed is high. Since

the matter is going back let there be a determination of the

compensation afresh in accordance with law. For that

purpose parties are permitted to produce both documentary

as well as oral evidence in support of their respective

contentions. The Tribunal on appearance of the party is

directed to refer him to a Medical Board and then proceed in

accordance with law. Parties are directed to appear before

the Tribunal on 23.4.2010.

M.N. KRISHNAN, JUDGE.

ul/-