Suryaprakash vs Babu
2022 Latest Caselaw 8262 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
 FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                   OP (MAC) NO. 66 OF 2022
  AGAINST THE ORDER/JUDGMENT IN OPMV 834/2015 OF MOTOR
             ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
PETITIONER/PETITIONER:

            SURYAPRAKASH
            AGED 47 YEARS
            S/O GOVINDAN NAIR, SREENIVAS PALAVEETTIL
            HOUSE, THENKARA POST, MANNARKKAD TALUK,
            PALAKKAD DISTRICT, PIN - 678582
            BY ADVS.
            V.HARISH
            RAJAN VISHNURAJ


RESPONDENTS/RESPONDENTS:

    1       BABU
            S/O IRIPPAKADAN, PANANKAVIL HOUSE, KADAMBODE
            POST, PANDIKKAD, MALAPPURAM, PIN - 676521
    2       THE NATIONAL INSURANCE CO LTD
            REPRESENTED BY ITS AUTHORISED OFFICER, 2ND
            FLOOR, PALLIKKAD SHOPPING COMPLEX, B16 277-
            278, KOZHIKODE ROAD, MANJERI, PIN - 676121
            BY ADV C.P.SABARI
            BY ADV.SRI. LAL GEORGE(SR) - S.C.



    THIS OP (MAC) HAVING COME UP                          FOR
ADMISSION ON 01.07.2022, THE COURT ON                     THE
SAME DAY DELIVERED THE FOLLOWING:
 O.P.(MAC) No.66 of 2022
                                       2




                              JUDGMENT

The petitioner is the claimant in O.P.(MV)

No.834/2015 on the file of the Motor Accidents Claims

Tribunal, Palakkad. The respondents 1 and 2 herein are the

respondents in the claim petition. Ext.P4 is the disability

certificate issued by the Medical Board which was marked as

Ext.C1 before the Tribunal. According to the petitioner, the

Medical Board has issued Ext.P4 certificate without assessing

the disability with regard to petitioner's loss of taste and

total loss of smell and that Ext.P4 does not reflect the correct

percentage of his disability. Accordingly, Ext.P5 interlocutory

application was filed by the petitioner before the Tribunal to

direct the Medical Board to consider his loss of taste

(anosmia) partial or total loss of smell and to issue additional

disability certificate. The learned Tribunal, by Ext.P6 order,

rejected the said application on the ground that the petitioner O.P.(MAC) No.66 of 2022

has not produced any medical records to substantiate his

contention. It is also stated in Ext.P6 order that the

application was filed on 16.2.2022 when the case was posted

for hearing.

2. This Original Petition is filed challenging Ext.P6 and

to direct the Tribunal to issue appropriate direction to the

Medical Board to re-assess the petitioner's permanent

disability and to consider the petitioner's loss of taste and

(anosmia) partial or total loss of smell and to issue an

additional disability certificate.

3. Heard Sri. Harish Vasudevan, the learned counsel

for the petitioner and Senior Standing Counsel Sri. Lal

George for 2nd respondent and Sri. C.P.Sabari, learned counsel

for the 1st respondent.

4. The accident is of the year 2013. True, the

proceedings before the Tribunal has to be brought to a logical

conclusion at the earliest. The victim has to get just and

reasonable compensation commensurate with disability and

injuries sustained. To assess the functional disability as well O.P.(MAC) No.66 of 2022

the compensation for loss of earning capacity, disability

certificate has to be relied on. The burden of proof is on the

claimant to prove the disability. The standard for awarding

compensation on the basis of disability and occupation has

been laid down by the Apex Court in Raj Kumar v. Ajay

Kumar [(2011) 1 SCC 343]. The Tribunal did not consider

the question as to whether, to arrive at a just and reasonable

compensation, the prayer of the petitioner in Ext.P5 is to be

allowed or not. Ext.P6 is therefore set aside.

5. Accordingly, there will be a direction to the Tribunal

to reconsider Ext.P5 application on the basis of the above

observations and to pass fresh orders within a period of one

month from the date of receipt of a copy of this judgment.

The Original Petition is disposed of.

Sd/-

MURALI PURUSHOTHAMAN JUDGE

al/-

O.P.(MAC) No.66 of 2022

APPENDIX OF OP (MAC) 66/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE CLAIM PETITION IN OP (MV) NO. 834 OF 2015 FILED BY THE PETITIONER BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD ALONG WITH ITS TYPED COPY.

Exhibit P2 A TRUE PHOTOCOPY OF THE DISCHARGE SUMMARY OF THE PETITIONER Exhibit P3 A TRUE PHOTOCOPY OF THE IA NO. 4451 OF 2015 IN OP (MV) NO. 834 OF 2015 FILED BY THE PETITIONER BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD Exhibit P4 A TRUE PHOTOCOPY OF THE DISABILITY ASSESSMENT BOARD CERTIFICATE DATED 08.12.2021 ISSUED BY THE MEDICAL BOARD Exhibit P5 A TRUE PHOTOCOPY OF THE I.A NO. 459 OF 2022 IN OP (MV) NO. 834 OF 2015 FILED BY THE PETITIONER BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD Exhibit P6 A TRUE PHOTOCOPY OF THE ORDER DATED 06.05.2022 PASSED BY THE MOTOR ACCIDENT

OF 2022 IN OP (MV) NO. 834 OF 2015