Shivamurteppa vs The Managing Director, N.E.K.R.T.C.

Anand Byrareddy, J.—There is a delay of 57 days in filing the appeal. For the reasons stated, the application I.A. 1/2013 is allowed and the delay of 57 days in filing is condoned.

Heard the learned counsel for the appellant and the respondent.

The matter is considered for final disposal having regard to the facts and circumstances and the grounds on which the appeal is filed.

The limited prayer of the appellant is that the Tribunal has adopted Rs. 3,000/- as the notional income of the appellant who was an agricultural labourer by avocation and hence, the accident being of the year 2005, it ought to have been higher and the income being taken as Rs. 3,000/- has resulted in the appellant being denied just compensation. Further, it is also pointed out that as a result of the accident, he was admitted to hospital and he was an in-patient for 22 days and he had lost income during the period that he was laid up for which the Tribunal has thought it fit to award only Rs. 2,000/- whereas it ought to have been higher and further seeks enhancement under other conventional heads as well.

The appellant has suffered permanent disability to the extent of 10% to the whole body, as assessed by the Medical Practitioner. The Tribunal however has chosen to reduce it by 2% and has taken the whole body disability at 8%. The learned counsel would submit that it is not for the Tribunal to sit in appeal over the assessment made by the Medical Practitioner. The Tribunal had no discretion to reduce the percentage of disability expressed by an expert and if at all, the Tribunal ought to have sought a second opinion in seeking to address the disability and therefore, the learned counsel would submit that the same ought to be taken at 10%, which would result in marginal increase in the compensation that is allowed.

While the learned counsel for the respondent would submit that the Medical Practitioner who had certified the disability was not the Doctor who had treated the claimant at the time he suffered injury and therefore, he was not competent to express any opinion as regards the percentage of disability, which is the reason the Tribunal has thought it fit to reduce the percentage of disability.

In the light of these contentions, the appeal is disposed of on a summary perusal of the judgment and award, as this Court takes judicial notice of the fact that during the year 2005, many claimants have been awarded compensation on the basis that the notional income is more than Rs. 3,500/-. Therefore, if Rs. 3,500/- is taken as the monthly notional income of the appellant, he would benefit marginally. Secondly, the amount awarded for the laid-up period is also on the lower side and if Rs. 3,500/- is taken as the monthly income, that would be the basis to marginally increase the income for the laid-up period insofar as the disability is concerned. The Medical Practitioner was the competent person to declare the percentage of disability. The Tribunal would have no jurisdiction to address the disability unless the Presiding Officer himself was a Doctor. The whimsical reduction in the percentage of disability on the footing that the Medical Practitioner who had furnished the opinion, was not the Medical Practitioner who had treated the appellant in the first instance, is also not the ground on which the discretion could be exercised. On the other hand, it is not necessary that the very Doctor who had treated the person must express his opinion regarding the disability. A Medical Practitioner is competent to speak about the disability in a human body and it need not necessarily be the very Doctor who had treated the patient after the accident. On that reasoning, the reduction of disability to 8% from 10%, is unreasonable and is set at naught. Accordingly, if Rs. 3,500/- is adopted as the monthly notional income of the appellant and if on that basis compensation awarded is recalculated, he would benefit by a marginal increase, namely towards the income lost during the laid up period, on the footing that the disability was at 10% and that his income was at Rs. 3,500/-, the appellant would be entitled to an additional compensation of Rs. 23,800/-, which shall be awarded to the appellant with interest at 6% from the date of the claim petition.