A very disturbing and distressing trend present in the Motor Accidents Claims Tribunals, purportedly in the interest of reducing the pendency, comes to fore in the above case.
2. The petitioner herein is the claimant in O.P.(M.V.) No.1165 of 2009 pending before the Motor Accidents Claims Tribunal, Ernakulam [hereinafter referred to as “the Tribunal”]. The driver, registered owner and the insurer of the vehicle are the respondents. The claim application, as produced at Exhibit P1, is dated 08.06.2009. On a reference to the District Medical Board, as per order of the Tribunal dated 18.02.2012, as per its report dated 23.12.2013, after delay of one year and 10 months; the District Medical Board at the Medical College Hospital, Alappuzha opined that the petitioner had no disability. The aggrieved petitioner filed I.A.No. 51/2014 on 02.01.14 seeking reference to the State Medical Board. The petitioner was before this court in O.P. (MAC). No.31 of 2014, alleging that his interlocutory application seeking reference to the State Medical Board was not being considered by the Tribunal. After getting remarks of the Presiding Officer, which indicated that the officer was not at fault, this Court on 13.03.14 disposed the Original Petition directing the Tribunal to pass orders in I.A.No.51/2014. The Tribunal was directed to verify whether the delay was caused due to the laches of the petitioner and dispose of the application on merits.
3. The present Original Petition had been filed by the petitioner alleging that despite the specific orders of this Court, the Tribunal had deliberately desisted from considering the I.A. It was also averred that, without considering the I.A., the petitioner's wife, who was present on behalf of the petitioner, was examined and the evidence closed when the application for reference to the State Medical Board was still kept pending. It was claimed that on 01.08.2014 despite the petitioner's counsel seeking for deferring the evidence of the petitioner, the Tribunal recorded the evidence of the wife of the petitioner. On 12.08.2014, the evidence of the petitioner was closed, while the I.A. was kept pending without any orders passed thereon. The petitioner himself is said to have come to India from Doha, where he was employed, on 05.09.2014 anticipating consideration of the I.A. On 10.09.2014 the Tribunal was on leave and the case was adjourned to 10.10.2014. The petitioner, hence, was compelled to return to Doha to resume his duty, on 20.09.2014.
4. Again, since the conduct of the Tribunal was called in question, this Court called for a report from the Tribunal. The Tribunal was specifically directed to report on the averments made in the Original Petition. A copy of the Original Petition was also forwarded to the Tribunal by the Registry. The Tribunal submitted a report on 14.10.2014. The Tribunal, at the outset, pointed out the enormity of the claim made; and the reduction subsequently sought for, by amendment. The petitioner has a contention that he was compelled to file the amendment application reducing the claim. The pendency of the case for more than five years and the frequent adjournments sought by the petitioner's counsel was emphasised. After referring to the direction of this Court to dispose of I.A.No.51 of 2014, the Tribunal went on to state that the Medical Board, Medical College Hospital, Alappuzha had already forwarded a report, where no disability was discernible. The petitioner's wife's evidence was specifically noticed. The salary drawn by the petitioner, as deposed by the wife of the petitioner, according to the Tribunal, further indicated that there is no disability. The absence of the petitioner, despite direction to be present, was also pointed out. An apparent difference in signature in the affidavit affirmed by the petitioner and the signature in the Passport was also emphasised.
5. The Tribunal, however, failed to explain as to why I.A.No.51 of 2014 was not considered before the evidence of the petitioner was closed. It was reported that I.A.No.51 of 2014 was posted for “pronouncing the order tomorrow”, i.e., on 15.10.2014. The entire evidence in the claim petition was reported to be over and allegations were made against the counsel for the petitioner. The Tribunal went on to apprise the High Court of the interest awarded in M.A.C.T. cases and the interest liability mulcted on the Insurance Company when the case is kept pending for very long years. The target set forth for the Tribunal was referred to and categorically; so stated:- “There is no need to drag O.P(MV)No.1165/2009”. The Tribunal then made a further statement that the copy of the Original Petition was not forwarded to the Tribunal and that a reply would be made after going through the Original Petition.
6. This Court, on enquiry with the Registry of this Court, was informed that the copy of the Memorandum of Original Petition was transmitted to the Tribunal along with a covering letter, calling for report as directed by this Court. The report based on the evidence, regarding the disability, pointed to a definite pre-meditated approach of the Tribunal. The reply, bordered on contempt and so did the conduct of not having disposed of I.A.No.51 of 2014, which was specifically directed by Exhibit P3. The Tribunal, despite the directions in Exhibit P3 judgment, also examined the witness for the claimant and marked documents and closed the evidence, without considering I.A.No.51 of 2014.
7. A show cause notice was issued, calling for explanation as to why proceedings shall not be initiated against the officer; and “B” Diary also called for. A reply has been submitted on 17.10.2014, wherein the Tribunal has admitted the mistake. In addition to the personal problems, the Tribunal also admitted that it had not gone through the Memorandum of Original Petition before submitting the original report. The Tribunal admits the receipt of the Memorandum of Original Petition, contrary to its earlier assertion, but allegedly later and that too an illegible copy. The Tribunal also stated in its reply that the order in I.A.No.51 of 2014 was ready on 10.10.2014 and the I.A. itself was disposed of on 15.10.2014, on which day this Court had issued an interim order staying further proceedings in the matter. It is further stated that the order was pronounced on 15.10.2014 and O.P.(M.V.).No.1165 of 2009 is posted for argument; and on subsequently being informed of the interim order of stay passed by this Court, the order in the I.A. was reviewed on the same day and the I.A. is restored to file, for adducing evidence.
8. This Court has looked into the “B” Diary, which was called for from the Tribunal, which the Registry has placed before this Court. On 23.12.2013 the receipt of the report from the Medical Board was recorded and the case was posted for evidence to 09.01.2014. I.A No.51 of 2014 was before the Tribunal on 09.01.2014. The petitioner was absent and his wife was present on his behalf. It was recorded that there was no oral evidence and documents Exhibits A1 to A8 and C1 were marked with objections raised by the 3rd respondent as to the marking of Exhibits A8. The case was posted for further evidence to 23.01.2014, on which date, the evidence was closed, since the 3rd respondent also submitted that there is no oral evidence. The case was posted. along with the I.A., to 30.01.2014 and then to 06.03.2014. On 06.03.2014, the “B”
Diary indicates that, the petitioner produced a copy of the interim order in OP(MAC)No.31 of 2014, which was later disposed of on 13.03.2014 by Exhibit P3 judgment. The matter was adjourned to 07.06.2014, and by notification, to 16.07.2014, then to 17.07.2014 and to 21.07.2014. On 21.07.2014, I.A No.5703 of 2014 filed for amendment is seen to have been allowed and I.A. filed for the re-opening the evidence of the petitioner, numbered as I.A.No.5702 of 2014, was also allowed. There was no mention of I.A.No.51 of 2014 or the judgment in O.P.(MAC).No.31 of 2014.
9. The amendment was recorded to have been carried out on 01.09.2014. The petitioner's wife, who was present, was examined as PW1 on the same date. Exhibits A9 to A12 were marked and, on the next posting date, on 12.08.2014 an additional document, Exhibit A13, which was objected to by the 3rd respondent, was marked. Again the petitioner's evidence was closed and the matter was posted along with I.A.No.6209/14 for respondent's evidence to 19.08.2014. On 19.08.2014 and on 10.10.2014 there is no mention of I.A.No.51/14. The proceedings in the “B” Diary have to be looked at seriously in the context of the specific statement in the explanation of the Tribunal that on 10.10.2014 the order in I.A.No.51/2014 was ready and the order was pronounced on 15.10.2014. There is no reference to I.A No.51/2014 on any of the aforesaid dates; nor is it discernible as to when it was heard. It is hence very clear and evident that despite clear direction issued by this Court, the Tribunal has not thought it fit to consider the I.A. as per the directions in that regard in Exhibit P3 or even hear the counsels on the said I.A.
10. The pronouncement of the order on 15.10.2014, obviously is motivated by the report called for from this Court in this Original Petition; on 10.10.2014. The Tribunal, while referring to the production of the interim order in the earlier Original Petition, does not even refer to the judgment dated 13.03.2014, produced before the Tribunal. There is abject indifference to the orders of this Court. It has to be emphasised that, the hierarchy of Courts is one of the fundamental aspects of judiciary, on which foundation the effectiveness of the system is built upon. Apposite would be a reference to Baradakanta Mishra v. Registrar of Orissa High Court [AIR 1974 SC 710]:
“In a country which has a hierarchy of courts one above the other, it is usual to find that the one which is above is entrusted with disciplinary control over the one below it. Such control is devised with a view to ensure that the lower court functions properly in its judicial administration. A Judge can foul judicial administration by misdemeanours while engaged in the exercise of the functions of a Judge. It is therefore as important for the superior court to be vigilant about the conduct and behaviour of the Subordinate Judge as a Judge, as it is to administer the law, because both functions are essential for administration of justice. The Judge of the superior court in whom this disciplinary control is vested functions as much as a Judge in such matters as when he hears and disposes of cases before him. The procedures may be different. The place where he sits may be different. But the powers are exercised in both instances in due course of judicial administration. If superior courts neglect to discipline subordinate courts, they will fail in an essential function of judicial administration and bring the whole administration of justice into contempt and disrepute. The mere function of adjudication between parties is not the whole of administration of justice for any court. It is important to remember that disciplinary control is vested in the court and not in a Judge as a private individual. Control, therefore, is a function as conducive to proper administration of justice as laying down the law or doing justice between the parties.”
11. With respect to the various allegations raised by the Tribunal against the petitioner and the counsel appearing for the petitioner before the Tribunal, it cannot, but be stated that the adjudication is the function in which individual predilections are to be kept aside. This Court too, as well as all the judicial officers, were; at one time, a part of the fraternity of lawyers. A lawyer, well equipped in the art of advocacy, would, by intuition as also from experience, realise that there is no purpose served in intimidating a judicial officer. But, often righteous indignation and flaring up of tempers, at the heat of a moment; results in such rich experience, being shrouded by emotions. That is human nature, but a judicial officer entrusted with the process of adjudication cannot afford to succumb to such coarse, baser instincts. A judicial officer should always realise that a lawyer's indiscretion should not influence the adjudication process, thus resulting in the litigant's claim being negatived; by reason of such bias alone. The report of the Tribunal reveals such a bias and the interest of justice requires that the Tribunal no longer consider the claim petition. O.P(MV) No.1165 of 2009 shall stand transferred to Additional Motor Accidents Claims Tribunal [Additional District & Sessions Judge, Idamalayar Cases], Ernakulam. The Additional MACT, Ernakulam shall comply with Ext.P3 judgment, within two weeks from the date of receipt of the files. The MACT, Ernakulam is directed to transmit the files to the Additional MACT, with immediate effect.
12. With respect to the I.A. seeking examination by the Medical Board, this Court has considered the issue in O.P.(MAC). No.2886 of 2013 dated 20.10.2014 in the following manner; referring to G.O.(P) No.161/97/H&FWD dated 15.05.1997:
“7. The above G.O. was referred to with approval, in a Division Bench decision of this Court in Saramma Scaria v. Mathai [2002 (2) KLT 404], where the Division Bench has also laid down certain guidelines on how the Tribunals should deal with applications for reference of cases to the Medical Board. The guidelines issued by the Division Bench survived the interference made with the Division Bench decision by a Full Bench, reported in Jacob Thomas v. Pandian [2005 (4) KLT 545 (F.B.)]. The Division Bench inter alia held that after framing issues, the Tribunal cannot dismiss the application for default under any circumstance, which the Full Bench did not agree with. Only to that limited extent the decision in Saramma Scaria (supra) was overruled. In fact, the said interference was also in mitigation of the hardship caused to a claimant who is obliged to file an appeal from an award passed without he being participated in the enquiry. Despite there being a prevalence of unscrupulous claims before the Motor Accidents Claims Tribunals, no Tribunal can afford to view every claim with a jaundiced eye and it is for the Tribunals to assess and determine genuine claims and deal appropriately with the claims which are frivolous and contorted.
8. It is also to be noticed that the aforesaid G.O. also constitutes, at paragraph 9, the State Disability Assessment Board as the Appellate Authority, to which any person could claim reference, if aggrieved by the disability assessed by the Standing Disability Assessment Boards constituted in the Medical College Hospitals and District/General Hospitals in the Districts. Hence, the Government order itself envisages an appeal from the assessment made by the District Board; as is in this case, and no irrefutability can be attributed to such certificate issued. Even the certificate issued by a State Medical Board would not be conclusive, since both parties would be entitled to refute the assessment made, by leading cogent contra evidence.
9. xxx xxx xxx Assessment of disability cannot be lightly taken by the Boards constituted by the Government, nor can such levity displayed by the Boards be condoned by the Courts. Assessment of a disability for the purpose of awarding damages is an onerous responsibility, where a balance has to be struck between the legitimate claim of an injured and public interest; the former commensurate with the damage/injury caused and the latter; since in most cases the tort feasor is insured and the amount of damages is a drain on public money. But, neither can be discounted or one given more significance over the other. It is the Courts' duty to ensure an objective assessment; leading to proportionate compensation, tainted neither by subjectivity nor misplaced sympathy”.
The I.A. shall be considered keeping in mind the dictum in the cited decisions and the observations herein-above as also looking at the Government Order referred therein, as to the constitution of the two Boards.
13. The Officer has expressed her unconditional apology.
Despite the avowed exercise of divine functions in adjudication; these are instances which reveal the human frailties in every individual, however high the position held, in the social, administrative or judicial fabric. The officers in the subordinate judiciary also should realise that a report called for by the superior court is not necessarily a finger of acquisition; but an opportunity to explain, the lapses complained of in a petition. None should be condemned unheard and a judicial officer, always prone to such baseless allegations; by litigants who have suffered adverse orders, should also be given a fair opportunity to explain. The reply to the show-cause notice is far from satisfactory and the 'B' Diary speaks otherwise. Fully realising the human frailties, to which, this Court also is prone to, but, always endure to get over; the proceedings initiated against the judicial officer, is directed to be dropped for reason only of the unconditional apology offered. However, this Court cannot but issue a strict warning to the judicial officer which shall be communicated by the Registrar (Subordinate Judiciary) through the Principal District Judge; which shall not form a part of the confidential record of service. The warning issued is not to clip the wings of judicial discretion, but only to jettison the egoistic baggage and thus to enable smooth sail in the rarefied waters of justice delivery.
The Original Petition is allowed with the above directions.
vku.
Sd/-
K.Vinod Chandran, Judge ( true copy )