IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 MACA.No. 310 of 2008() ---------------------------------- OP(MV)NO.30/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT ------------------------------------------- THE ORIENTAL INSURANCE CO.LTD. NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFICE, METRO PALACE, KOCHI-18 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE BY ADV.SRI.P.JACOB MATHEW RESPONDENT/ PETITIONER ------------------------------------------ K.P.SAMUEL,S/O. MATHAI PAPPY, REPRESENTED BY HIS NEXT FRIEND AND WIFE ANU SAMUEL, SIJU'S BHAVAN,SDPY ROAD, PALLURUTHY, KOCHI-6' BY ADV. SRI.C.V.MANUVILSAN SRI.T.S.ARUNKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- M.A.C.A.No.310 of 2008 ---------------------------------------------------- Dated this the 26th day of July, 2011 Judgment Basant, J. The insurance company is the appellant. The insurance company assails the quantum of compensation awarded by the Tribunal to the claimant, i.e. the sole respondent herein. Against a claim of Rs.25 lakhs, the Tribunal awarded only an amount of Rs.7,07,500/- as compensation. The claimant has not preferred any appeal. The learned counsel for the claimant submits that acute financial difficulties prevented the claimant preferring any appeal. 2. We have heard the learned counsel for the insurance company and the counsel for the claimant-respondent. The learned counsel for the insurance company assails the impugned order on various grounds. The medical board to which the Tribunal sent the claimant for assessment of physical disability returned a report stating that the claimant had suffered disability to the tune of 40%. But the Tribunal accepted only 10% as the disability. Though no actual reduction in the emoluments has MACA 310/08 2 now resulted because of the physical disability, the Tribunal attempted to ascertain the compensation on the assumption that 10% reduction in earning capacity is lost. Learned counsel for the appellant submits that at any rate, for the period during which the claimant was likely to continue in his employment with his permanent employer, he is not entitled to claim any compensation for reduction in earning capacity. 3. We have considered all the relevant aspects. During the period of employment under the present employer, even assuming that there is no actual reduction in earnings, the claimant will certainly have to put in harder efforts with the impaired physical efficiency to turn out the same quantum of work. No attempt has been made to quantify the compensation payable on this score. Moreover, the compensation payable for reduction in earning capacity which may have a reflection of post retiral period has also not been attempted to be ascertained by the Tribunal at all. The learned counsel for the claimant- respondent submits that the Tribunal must have accepted 40% disability as reported by the medical board. 4. We do not intend to express any final opinion on these MACA 310/08 3 questions now in the light of the view that we propose to take. We are of the opinion that interests of justice demand that the matter must be sent back to the Tribunal for fresh disposal in accordance with law after giving the parties opportunity to adduce further evidence, if any. We may in particular state that the respondent-claimant must be given opportunity to examine witnesses and place materials before the Tribunal to enable the Tribunal to correctly assess the extent of disability and the extent of reduction in earning capacity. We note that the Tribunal had forwarded the claimant to the medical board. If the report of the medical board so received is found to be not satisfactory, the Tribunal which cannot be content with its role as an umpire in an adversarial litigation must certainly have taken steps as an active and dynamic dispenser of justice, to forward the claimant again to a medical board for authentic assessment regarding extent of disability. We are in these circumstances of the opinion that the ideal course to be followed by us is to send the matter back to the Tribunal with direction to dispose of the matter afresh. 5. 50% of the amount due under the impugned award has already been deposited before the Tribunal by the appellant- MACA 310/08 4 insurance company as per the interim directions issued. We are satisfied that directions can be issued straightaway to the Tribunal to release the entire amount in deposit to the claimant. 6. In the result: (a) This appeal is allowed in part. (b) The impugned award is set aside and the Tribunal is directed to dispose of the matter afresh after giving the parties opportunity to adduce such further evidence as is necessary. We may hasten to observe that the Tribunal must, if necessary, send the claimant/injured again to the medical board to get his disability authentically evaluated and assessed. (c) The entire amount deposited by the insurance company till now before the Tribunal shall forthwith be released to the claimant. (d) The parties shall appear before the Tribunal on 1st September, 2011. The Tribunal shall dispose of the matter as expeditiously as possible thereafter and at any rate, within a period of 3 (three) months MACA 310/08 5 from1.9.2011. Compliance shall be reported to this court. R. BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. srd