The High Court held that the Tribunal erred in assessing 80% functional disability without applying M'C Bride's Scale or considering evidence. The award was set aside and remanded for fresh disposal.
The award assessing 80% disability was set aside and the matter remanded to the Tribunal for fresh disposal within four months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
MACA NO. 974 OF 2018
AGAINST THE ORDER/JUDGMENT IN OPMV 462/2015 OF THE MOTOR ACCIDENTS
CLAIMS TRIBUNAL, KALPETTA,WAYANAD
APPELLANT/3RD RESPONDENT:
SHRIRAM GENERAL INSURANCE CO.LTD., INSURANCE AGENCY S.S., 2ND FLOOR, MONARCH CHAMBER, INFENTARY ROAD, BANGALORE, KARNATAKA, REP. BY IT'S MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., ERNAKULAM.
BY ADV SRI.R.AJITH KUMAR (128/84)
RESPONDENT/CLAIMANT:
PRAVEEN E.C., S/O. CHANDRASEKHARAN, ERIKKAMTHARAYIL HOUSE, THEYYANGATT, PONNANI P.O., MALAPPURAM DISTRICT-679577.
BY ADV SRI.K.A.SALIL NARAYANAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 974 OF 2018 2
JUDGMENT
Paragraph 7 of the impugned award is extracted
below for reference:
"In the light of the direction given by the Honourable Supreme Court through the judgment reported in Rajkumar v. Ajaykumar 2011/1 SCC 343 and on review of the opinion expressed by the experts, Tribunal fixing the functional disability as 80% for the purpose of assessing compensation on account of personal injuries caused to the petitioner and consequent loss of earning power."
meant by the learned Judge by the abovesaid
paragraph. Nothing has been mentioned or discussed about the opinion expressed by the experts and the
review done and also about the direction issued by the Apex Court. A one line paragraph was incorporated in an evasive way without attending the requirement of appreciation of evidence or application of law.
tip of clavicle. Ext.A8 series are X-ray films, Ext.A9 are the lab reports, Ext.A11 series are the
MACA NO. 974 OF 2018 3
scan reports. The document issued by Dr.Mizaj Ismail, Radiologist, MIMS Hospital opined that the impression revealed fat stranding in right posterior triangle and supraclavicular fossa with isodense collection as described likely hematoma. Fracture distal end of
right clavicle and transverse process of right C7 vertebra also made mentioned in the impugned award.
disability at 80%, without specifying whether it is a whole body disability or a disability of a particular limb. On the reverse side of the certificate, there
is some endorsements as stated below:
“Power reduction of upper limb - 45
Co-ordinated activities - 45 Prechension - 20 Sensation - 6
Additional (orminant us) - 4
disability assessment so as to find out whether it is
a whole body disability or a particular limb. The clavicle is the bone situated in the front upper part
MACA NO. 974 OF 2018 4
of chest and injury noted is fracture distal end of right clavicle i.e. the tip of clavicle. Even the combined effect of distal end of clavicle fracture with brachial plexus injury will not cause 80% of whole body disability. It is not specified on what basis 80% disability was assessed on account of the said injuries and what would be the position after the completion of treatment. The movement and restriction of arms connected with the right clavicle not seen mentioned in the certificate. The disability is seen assessed without the assistance of M'C Bride's Scale or formula or any authenticated scale. Even going by M'C Bride's Scale or Formula, fracture to clavicle, 1) the whole body disability comes to 4% and disability of particular limb or part would be 8% when there is angulation and torsion and occupational disability will range from 4% to 15% (2) when there is excessive callus with circulatory pressure with symptoms of subjective, the whole body disability comes to 6% and disability of particular part or limb comes to 11%. When the same is with swelling, the whole body disability comes to 8% and disability of
MACA NO. 974 OF 2018 5
particular limb or part would be 15% and the occupational disability will range from 8 to 26% (3) when there is non-union with 90% rigidity, the whole body disability will be 5% and when there is 50% rigidity, it would be 8% and when 10% rigidity, it would be 13% and disability of particular limb or
part would be 10%, 17% and 25% respectively and occupational disability will range from 5% to 20% and 9% to 31% and 13% to 34% respectively and so on (4) when there is fracture and dislocation of sterno clavicular joint or relaxed joint, the whole body disability comes to 5%, while the disability of specific part comes to 10% and occupational disability ranges from 5% to 20% (5) fracture or rupture of sterno clavicular ligament would also result in the very same disability and in the case of
traumatic arthritis, it would be 10% and 20%
respectively with the occupational disability ranging from 11% to 20%. The extent of brachial plexus injury after the completion of treatment was also not taken into consideration in relation to the clavicular fracture, which is only a distal end fracture. The
MACA NO. 974 OF 2018 6
question whether brachial plexus injury caused restriction in the movement of the upper limb and if so, to what extent has not been considered while assessing the disability. There is no case of shortening or angulation of upper limb. If that be
so, in all probability, the disability of particular limb will not exceed 10% to 20% and the whole body disability 5% to 10% and the occupational disability at the same rate i.e. 5% to 10% due to brachial plexus injury coupled with distal end fracture of clavicle, even going by M'C Bride's Scale.
of disability at 80%. Hence, the assessment of
functional disability at 80% cannot be accepted. This might be the reason why some endorsements were made on the reverse side of the medical certificate so as
to appear that something has been done by the Medical
Board so as to justify the assessment at 80% disability. It appears that it is really a fraudulent device. The non-examination of the doctor, who issued
the certificate is so fatal added by the fact that the Tribunal accepted the same without ascertaining
MACA NO. 974 OF 2018 7
whether it is a whole body disability or a disability of a particular limb or part and gone upto the extent of accepting functional disability at 80%, though the petitioner is a technician by profession. There is no open reduction internal fixation surgery conducted on the petitioner and there is no implant fixation. All these would make the award unconscionable and baseless. Hence, the same is liable to be set aside. I do so. The matter is remanded back to the Tribunal for fresh disposal. The parties shall appear before the Tribunal on 06/10/2021. The Tribunal shall dispose of the matter within a period of four months from the date of appearance. The amount, if any, in
deposit out of the amount Rs.15,00,000/- deposited by the Insurance Company shall not be released to the petitioner till the disposal of the claim petition.
The appeal is allowed in part accordingly.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the assessment of 80% functional disability by the Tribunal was reasonable and based on authenticated scales.
Whether the Medical Board certificate was ambiguous regarding whole body versus limb disability.
Colour shows how this judgement treated each authority
Rajkumar v. AjaykumarDistinguished¶17
Rajkumar v. Ajaykumar 2011/1 SCC 343 · Who else cites this
1 provisions across 1 enactments
SHRIRAM GENERAL INSURANCE CO.LTD.
PRAVEEN E.C.
PSOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
