IMPORTANT POINT
Injury in motor accident – There should be valid reasoning to go behind opinion of an expert, especially in the matter of assessment of disability.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. Leave granted.

2. The appellant was the claimant before the Tribunal who claimed 100% functional disability on account of the injuries suffered in a motor vehicle accident.

3. On facts, suffice it to notice that the appellant was travelling in an auto rickshaw on 12.08.2002 when a bus, being driven rashly and negligently, collided with the auto and the appellant had to be admitted in a hospital. The appellant was hospitalized for about six days and a surgery had to be conducted on him. An insertion was made to treat the compound fracture suffered on the fibula of his right leg. He also suffered a fracture to the ulna of the right hand which required plastering. The appellant had been regularly visiting the hospital due to his leg having not healed. The appellant claimed that he was a skilled mason and a person working with him was examined to prove that he was earning an income of Rs. 200 per day. The medical treatment undergone by him and the disability was proved by examination of the record clerk of the hospital who produced the necessary records and the doctor who treated the appellant.

4. The Tribunal, however, did not accept the income of Rs. 6,000/- per month and adopted only Rs. 3,000/- as monthly income. 25% disability was accepted, despite the certificate having shown 35% disability, which the Tribunal opined was only with respect to the right leg and hence, the whole-body disability can only be 25%. Though, an amount of Rs. 25,000/- was claimed for medical expenses, the Tribunal granted only in accordance with the bills produced of Rs. 10,000/-. The Tribunal also awarded an amount of Rs. 3,000/- for special diet and Rs. 5,000/- for pain and suffering. A total amount of Rs. 1,62,000/- was awarded by the Tribunal.

5. On appeal to the High Court, the income was increased to Rs. 3500/- and a 40% addition was made for future prospects. The High Court also awarded an amount of Rs. 25,000/- for future treatment and increased the amounts for special diet to Rs. 12,000/- and retained the medical expenses at Rs. 10,000/- itself. As far as pain and suffering, the High Court enhanced it to Rs. 30,000/- and an amount of Rs. 12,000/- was granted as attendant charges for six months at the rate of Rs. 2,000/- per month. Since the appellant, as per the medical records, would have been laid up for about six months, the High Court also granted an additional amount of Rs. 10,000/- for transportation charges and Rs. 21,000/- for loss of income.

6. Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company, (2011) 13 SCC 236 found that a Coolie would get an amount of Rs. 4500/- as his monthly income in the year 2004. Definitely, an incremental increase of an unskilled worker’s income can be assessed at Rs. 500/- per year in which context, even an unskilled worker would earn an income of Rs. 10,000/- in the year 2008. Hence, this Court is of the opinion that the income as claimed by the appellant, a skilled mason can be accepted. As far as disability is concerned, the doctor has assessed it at 35% and the Tribunal reduced it to 25% on mere conjectures. There should be valid reasoning to go behind the opinion of an expert, especially in the matter of assessment of disability. In the present case, the doctor who was examined before the Tribunal had specifically deposed that the appellant was unable to sit down and walk and could not lift heavy weights. He was also said to be in constant pain.

7. Considering the entire circumstances and also since we have accepted that the claimant was a skilled mason, his disability will have to be assessed at 35%. The evidence of the doctor would indicate that he could not have continued his chosen vocation.

8. On the other heads, we do not make any enhancement with respect to the future treatment, special diet and the attendant charges. However, for loss of income, since we have adopted a higher income, necessarily it has to be Rs. 36,000/- for six months. The appella