IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 8468 of 2010(G) ------------------------- OPMV.1966/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... PETITIONER(S): -------------------------- MINI.P.K., W/O.MADHU, AGED 34 YEARS, THALAKKOTTIRI HOUSE, CHOOLOOR P.O., REC (NIT), KOZHIKODE DISTRICT. BY ADVS. SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. RESPONDENT(S): --------------------------- 1. ABDUL NAZAR, S/O.MUHAMMED, THOTTATHIL HOUSE, CHEROOPPA, MAVOOR, KOZHIKODE. 2. ABDUL MANAF, S/O.MUHAMMED, THOTTATHIL HOUSE, KUTTIKKADAVU, CHEROOPPA, MAVOOR, KOZHIKODE. 3. THE NEW INDIA ASSURANCE COMPANY LTD., SILVER PLAZA, MAVOOR ROAD, CALICUT. R3 BY ADV. SRI.LAL GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss “C.R.” C.T.RAVIKUMAR, J. --------------------------------------- W.P(C)N.8468 of 2010 ---------------------------------------- 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