THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.2718 of 2003 Date:23.09.2010 Between: Sri N. Venkataiah ..... Appellant AND Sri R.Konda Reddy and another. .....Respondents Counsel for the Appellant: Mr. K. Rathanga Pani Reddy Counsel for Respondent No.2: Smt. I. Maamu Vani Counsel for Respondent No.1: None appeared The Court made the following: ORDER: This Civil Miscellaneous Appeal arises out of the award dated 31.01.2003 in M.V.O.P.No.802 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge’s Court, Kurnool (for short ‘the Tribunal’). The appellant is the claimant, who sustained injuries to his right leg on 30.06.2001, while he was trying to place a stone under the rear wheel of the tractor trailor bearing registration No.AP 04T 9621 owned by respondent No.1 and insured with respondent No.2. P.W.2, the Assistant Professor in Orthopedics Department, Government General Hospital, Kurnool, who examined the appellant, has issued wound certificate - Ex.A-3. As per the said wound certificate, the appellant has suffered two injuries i.e., lacerated injury of medial aspect of right middle part of leg with deformity and bleeding present and another lacerated injury over left side extending into heal with bleeding present. P.W.2, in his evidence, deposed that he has examined the appellant to ascertain whether he sustained permanent disability due to the fracture of both bones of right leg with reference to the latest X-ray taken on 16.01.2002. He opined that the X-ray showed non-union of fractures of both bones, which led to the shortening of length of the right leg by one inch and that the appellant developed chronic non-healing ulcer in right calcanium of the foot and further opined that the appellant is unable to bear weights on the right leg and thereby he is walking with the help of a stick and that the disability can be estimated at 25%. On appreciation of the evidence on record, the Tribunal has awarded Rs.30,600/- under various heads as against the claim of Rs.1,50,000/-. Feeling partly aggrieved by this award, the claimant filed the present appeal. At the hearing, Sri K. Rathanga Pani Reddy, the learned counsel for the appellant, advanced four contentions: - (i) that the Tribunal committed a serious error in not adopting 25% as loss of income commensurate with the percentage of disability; (ii) that the Tribunal fell in error in taking Rs.50/- as the daily income of the appellant instead of Rs.100/-; (iii) that the Tribunal has failed to award compensation for pain and suffering; and (iv) that the appellant being 20 years of age at the time of the accident, multiplier ’18’ has to be adopted as against the multiplier ‘17’ as adopted by the Tribunal. Smt. I. Maamu Vani, the learned standing counsel for respondent No.2 Insurance Company, opposed the above contentions. With regard to the first contention of the learned counsel for the appellant, the Tribunal, while taking the percentage of permanent disability at 25%, has held that in case of shortening of leg by one inch, the percentage of physical impairment and loss of physical function shall be taken as ‘10’ and accordingly, the loss of income is assessed at 10%. In my opinion, the Tribunal has not supported its conclusion on the basis of any decided case law, though it has observed that the said conclusion was based on settled legal principles and decided cases. A perusal of the evidence of P.W.2 reveals that no suggestion was put to the witness on behalf of respondent No.2 company that the physical and functional disability could come to only 10% in case of shortening of leg, except suggesting to him that the percentage of disability is excessive. The learned standing counsel appearing for respondent No.2 has not placed any case law, which supports the view taken by the Tribunal. The injuries suffered by the appellant are not included in Schedule I of the Workmen’s Compensation Act, 1923, which are made applicable to the cases falling under Section 163-A of the Motor Vehicles Act, 1988 (for short ‘the Act’). Of course, this is not a case, which falls under the said provision as the appellant has made his claim under Section 155 of the Act. Ordinarily, the loss of income depends upon the nature of the injury. Sometimes the impact of injury on the loss of income may be in excess of the percentage of disability and vice versa. The Courts are, therefore, to examine the nature of the injury with reference to the occupation of the injured. In case of a person who does not attend to manual labour, the loss of income may not be in direct proportion to the percentage of disability. However, in case of labourers, the percentage of disability would have a direct bearing on the loss of income. In the present case, the occupation of the appellant is cooli work, which involves hard physical labour. The evidence of the Doctor – P.W.2 shows that the appellant is unable to bear weights on the right leg on account of its shortening by one inch. It is, therefore, reasonable to presume that the appellant may not be able to attend to the hard labour work as he would have been attending to prior to the accident and that he may have to switch over to lighter work. Therefore, I find no justification in Tribunal assessing the loss of income at 10%. But the next question is whether the appellant is entitled to the assessment of loss of income at 25%? P.W.2 – the Doctor has stated that “the disability can be estimated at 25%”. This statement appears to be somewhat equivocal. The Doctor was unable to state with certainty that the physical disability was 25%. I am, therefore, of the opinion that it would be reasonable to take 20% as the physical disability and the loss of income can be estimated at the same percentage. As regards the second contention of the learned counsel with respect to the assessment of the income at Rs.100/- per day, in the absence of the definite material produced by the appellant in support of his claim of loss of income, the Tribunal has adopted Rs.50/-. The accident has occurred in the year 2001. No material was placed before the Tribunal regarding the minimum wages which were in force at that time. In the absence of any such evidence, I feel that the Tribunal was justified in taking Rs.50/- as the income per day of the appellant. The award of the Tribunal, therefore, is not liable to be interfered with on this count. Coming to the third contention of the learned counsel for the appellant, the evidence on record discloses that the appellant was in Hospital as inpatient for 1 and ½ months. Considering the nature of the injuries leading to shortening of leg, it is reasonable to presume that the appellant would have suffered considerable physical pain and mental trauma. Therefore, I find it appropriate to award Rs.7,500/- under this head. As regards the last contention of the learned counsel for the appellant, in Sarla Verma vs. Delhi Transport Corporation[1] the Supreme Court held that while assessing the income of a person aged 20 years, the appropriate multiplier is ‘18’. Therefore, the award needs to be modified by adopting multiplier ‘18’ instead of ‘17’. Accordingly, the Civil Miscellaneous Appeal is partly allowed to the extent indicated above. ________________________ C.V.NAGARJUNA REDDY, J 23rd September, 2010 GHN [1] 2009(3) ALD 83 (SC)