The assessment of permanent disability and its impact on earning capacity should be evidence-based, and caution should be exercised in accepting expert medical evidence.

JUDGMENT :

1. The challenge is given to the judgment and award dated 30.12.2016 passed by the MACT (Aux), Bhuj-Kutch in MACP no.383 of 2006.

2. Facts of the case suggest that the claimant-victim was returning from Medta (Rajasthan) to Kachchh by driving the tanker on the left side of the road and as stated, in a moderate speed. At about 14:00 hrs., a truck bearing registration no. RJ-14 2-G1738 came from opposite direction and dashed with the tanker. It is alleged that the truck was driven in a rash and negligent manner and came on the wrong side of the road and dashed and collided with the tanker. The appellant, thus, sustained injuries.

3. The appellant – claimant has raised the ground that the learned Tribunal has considered physical disability at 30% and the Orthopedic Surgeon has assessed the disability at 64% and that the surgeon has deposed that the appellant cannot drive vehicle or do heavy work. Learned advocate Mr. Hemal Shah has relied upon the judgments in the cases of Minu Raut & Anr. v. Satya Pradyumma Mohapatra & Ors., reported in 2013 ACJ 2544 SC, Kala Devi v. Bhagwan Das, reported in 2014 (12) Scale 513, Rekha Jain v. National Insurance Co. Ltd., reported in 2013 SAR (Civil) 921, New India Assurance Co. Ltd. v. J.P. Jethva & Anr., reported in 2009 (1) GLH 447, Ramanbhai K. Darji v. Babusinh Thakor, reported in 2002 (2) GLH (UJ) 7 and GSRTC v. B.N. Parmar & Anr., reported in 1992 ACJ 484 Guj. as well as the other decisions, to submit that the claimant was a driver and hence, should be considered as a skilled worker and has urged the Court to consider his income in line of those observed by the Courts in the judgment referred by him and further states that when the Doctor has assessed the physical disability and considering the work of the claimant, being a driver, Mr. Shah states that 100% permanent functional disability ought to have been considered by the Tribunal.

4. While countering the same, learned advocate Ms. Rupali Bhatt submits that the learned Tribunal has assessed the income of the claimant at Rs.5,000/- per month, while taking into consideration the date of accident as 11.4.2006 and even the claimant driver is to be considered as skilled worker, then, the assessment of the monthly income ought to have been in accordance to the inflation index and the cost of living, which has been suitably bifurcated in the schedule of minimum wages of the State of Gujarat. Ms. Bhatt submits that the income which is assessed by the Tribunal is much more on a higher side, which would itself include the factum of prospective rise in future income and thus, submits that the assessment so made by the Tribunal requires no interference of this Court.

5. She further states that the Doctor who had deposed before the Court is not the one who had treated the claimant and even if the deposition is to be believed, then, it is not the case of any amputation of any limb to consider 100% functional disability of the claimant and thus, submits that the injury so sustained would allow the claimant to do some other work, where his earning capacity would not be affected and thus, Ms. Bhatt submits that the assessment is regarding the physical disability considering it as a functional disability of 30% is just and in accordance to the evidence on record.

6. Ms. Bhatt further states that medical bills have been granted as the learned Tribunal has granted Rs.50,000/- under the head of pain, shock and suffering and even on other heads, which are just and reasonable.

7. The learned Tribunal has granted compensation under various heads as under:-

8. In the case of Raj Kumar v. Ajay Kumar & Anr., reported