IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 WP(C).No. 18757 of 2008(G) --------------------------------------- [O.P.(MV).NO.236/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE] .................... PETITIONER: ------------------- HARRIS C.P., S/O.HUSSAIN @ ASSAIN, AGED 25 YEARS, CHUNDAPURATH HOUSE, MADRASSA BAZAR, P.O.KODUVALLY, KOZHIKODE. BY ADVS. SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. RESPONDENTS: ------------------------ 1. N.UMAMAHESWARA RAO, D.NO.24-11-155, SAI VENKITARAMAN LORRY SUPPLY OFFICE, PATNAM BAZAR, GUNTOOR. * 2. BANGARU NAIDU, S/O.DAVEDU, IST LANE, NALLACHERU, GUNTOOR. 3. THE NEW INDIA ASSURANCE CO. LTD., MERRISPAD, TENALI. *R.2. IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 15/06/11 IN I.A. NO.9028/11. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18757/2008-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TREATMENT BOOK KEPT BY THE PETITIONER. EXT.P.2: COPY OF THE PETITION NO. I.A. NO.2816/2006 IN O.P.(M.V.)286/2004 FILED BY THE PETITIONER. EXT.P.3: COPY OF THE PETITION NO.I.A. NO.4060/2006 IN O.P.(M.V) 236/2004 FILED BY THE PETITIONER. EXT.P.4: COPY OF THE ORDER I.A. NO.2817/2006 ENDORSED ON THE REVERSE SIDE OF EXHIBIT P.2. PETITION BY THE M.A.C.T., KOZHIKODE IN O.P(M.V).NO236/2004. EXT.P.4.A: COPY OF THE TYPE WRITTEN ORDER I.A. NO. 2817/2006 PASSED BY THE MACT, KOZHIKODE IN O.P(M.V)NO.236/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 18757 OF 2008 -------------------------- Dated this the 18th day of July, 2011 J U D G M E N T The petitioner is the claimant in O.P.(MV) No.236 of 2004 on the file of the Motor Accidents Claims Tribunal, Kozhikode, wherein he had claimed the sum of Rs.2,00,000/- as compensation for the injuries sustained by him in a motor accident on 27.11.2003. It is stated that in the accident the petitioner suffered fracture of the shaft of right femur besides other injuries and that he was hospitalised as an inpatient in the Medical College Hospital, Kozhikode during the period from 27.11.2003 to 21.12.2003. In that claim petition, the petitioner filed I.A. No.2817 of 2006 under rule 387 of the Kerala Motor Vehicles Rules, 1989 for an order referring him to the medical board to assess his disability. The said application was filed on 31.5.2006. It was taken up for consideration after two adjournments on 2.2.2008. On that day the petitioner was present and the Motor Accidents Claims Tribunal thereafter passed an order to the effect that as the claimant has no visible liability, a reasonable percentage in the light of the nature of injuries or loss of amenities could be granted. The said order is under challenge in this writ petition. 2. The fact that the petitioner was injured in a motor accident has not been disputed. Rule 387 of the Kerala Motor Vehicles Rules enables the Motor Accidents Claims Tribunal to direct any medical officer in a Government hospital or in a Medical College hospital or any Board WPC No.18757/2008 2 consisting of such Medical Officers to examine the injured and issue a disability certificate indicating the degree and extend of the disability, if any, sustained as a result of the accident. The order passed by the Motor Accidents Claims Tribunal reads as follows: “Petitioner present. Apparently he has no visible liability. Reasonable percentage in the light of the nature of injury or loss of amenity could be granted. Petitioner's counsel is directed to represent the matter while hearing the matter and call with petition.” 3. From a reading of the order, it is evident that the Motor Accidents Claims Tribunal has proceeded on the basis that the petitioner has no visible disability. The petitioner has in the affidavit filed in support of the application stated that on account of the injury, he is disabled and therefore for the purpose of assessing the compensation payable, the disability has to be assessed. Though the petitioner has not stated in the application filed by him before the Motor Accidents Claims Tribunal anything about the consequences of the injury sustained by him in the accident, he has in paragraph 3 of the writ petition stated that as a result of the accident, there is a shortening of the leg and that he is limbing. The order passed by the Motor Accidents Claims Tribunal does not refer to this aspect evidently for the reason that no such case was put forward before the Motor Accidents Claims Tribunal. That apart, the order passed by the Motor Accidents Claims Tribunal is not clear. The Tribunal has not stated that there is no WPC No.18757/2008 3 visible disability. The word used in the order is “visible liability”. In such circumstances, I am of the opinion that the petitioner should file a fresh petition before the Motor Accidents Claims Tribunal, seeking the relief prayed for in IA No.2817 of 2006. I accordingly set aside the order impugned and direct that in the event of the petitioner filing an appropriate application under rule 387 of the Kerala Motor Vehicles Rules before the Motor Accidents Claims Tribunal setting out the reason why examination by a Medical Board is necessary, the Motor Accidents Claims Tribunal shall consider the said application and pass appropriate orders thereon within one month from the date on which the application is filed. P.N.RAVINDRAN, (JUDGE) vps