Mir Alfaz Ali, J. (Oral) - Heard Mr. SK. Talukdar, learned counsel for the appellant and Mr.S Dutta, learned counsel for the respondents.

2. This appeal is directed against the judgment and award dated 29/6/2013 passed by learned Addl. Distirct Judge (FTC)-cum- MACT, Kamrup, Guwahati in MAC Case No. 8646/06.

3. The claimant Sri Nagen Das sustained injury in a motor vehicle accident on 18/5/06 involving the vehicle bearing registration No. AS-01/7729 , owned by the respondent No. 1 and insured with the respondent No. 3. The injured Nagen Das filed an application before the MACT, Kamrup, praying for compensation and the learned tribunal by the impugned judgment, awarded a compensation of Rs. 77,000/- which consisted of Rs. 32,000/- towards medical expenses , Rs. 10,000/- towards pain and sufferings, a lumpsum amount of Rs. 10,000/- for disability, Rs. 10,000/- towards loss of income and Rs. 10,000/- for future prospects and other miscellaneous expenses.

4. Unsatisfied with the said award, the claimant preferred the instant appeal praying for enhancement of the compensation.

5. Learned counsel for the appellant, Mr. Talukdar submits that the claimant was a driver by profession and he sustained 20% physical disability on his right upper limb and such disability rendered him incapable of driving the vehicle, but the learned tribunal, while determining the compensation failed to appreciate the impact of physical disability on the occupation and earning of the claimant and awarded a lump-sum of Rs. 10,000/- towards loss of earning and thereby failed to grant a just and fair compensation. Further contention of the learned counsel is that the quantum of award on account of non-pecuniary damages and other heads was also on the lower side and deserves enhancement in order to make the compensation just and fair.

6. Learned counsel, Mr. Dutta for the Insurance Co. submits that the doctor assessed the disability of the limb concerned and no assessment was made by the doctor in respect of disability of whole body of the claimant and therefore, it was not possible to ascertain the loss of earning without such assessment of disability of the whole body.

7. Learned counsel for both sides have placed reliance on the decision of the Apex Court in Raj Kumar v. Ajay Kumar and Ors. reported in (2011) 1 SCC 343 , where the Apex Court succinctly laid down the guidelines for granting compensation in case of personal injury as under :-

"6. the heads under which compensation is awarded in personal injury case are the following :-

Pecuniary damages (Special damages)

(ii) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the inured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment ;

(b) Loss of earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (ii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

8. The Apex Court in Raj Kumar case also laid down the principle to be followed for granting compensation towards loss of earning as a result of permanent physical disablement and considered in detailed the correlation between the physical disability and loss of earning capacity resulting from the physical disability in para 10,11 and 13, as under :-

"10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent 8disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567 ).

13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent 10disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."

9. The co-relation between the physical disability suffered in accident and loss of earning capacity resulting from it was also discussed by the Apex Court in various decisions including Rekha Jain v. Insurance Co. Ltd. and Ors. reported in (2013) 8 SCC 389 as well as G. Dhanasekar v. Managing Director, Metropolitan Transport Corporation reported in (2014) 14 SCC 391. The Apex Court in G. Dhanasekar held as under :

"As far as compensation for functional disability is concerned, it has to be borne in mind that the principle cannot be uniformly applied. It would depend on the impact caused by the injury on the victims profession/career. To what extent the career of the victim has been affected, thereby his regular income is reduced or dried up will depend on the facts and circumstances of each case. There may be even situations where the physical disability does not involve any functional disability at all."

10. It is, therefore, settled position, that when a victim of vehicular accident sustained injury resulting in permanent disablement, total or partial, and the physical disability is assessed by the medical expert, the affect of physical disability suffered by the injured on his income has to be assessed by the tribunal, on the basis of the facts and circumstances of a particular case, viz, nature of occupation, nature of injury of the claimant etc. So before proceeding to award compensation on account of loss of income for permanent disability, it is the duty of the tribunal to ascertain what is the extent of loss of earning or the impact of the disability on the earning capacity of the injured, reason being that the extent of physical disability and the extent of functional disability or impact of physical disability on the earning capacity always may not be the same. Sometime the earning capacity or the affect of the injury or physical disability on the earning capacity of the injured may be higher than the extent of physical disability and there may also be a case, where the extent of loss of earning capacity may be lower than the extent of physical disability. The loss of earning capacity will depend upon varied factors including the nature of occupation of the injured, nature of injury etc. Therefore, in order to quantify the loss of earning due to disability, tribunal needs to ascertain the impact of physical disability on the earning capacity.

11. The claimant examined himself as witness and proved the disability certificate (Ex. 73). The doctor, who examined the claimant also deposed that the claimant suffered 20% disablement of his right upper limb. Indeed, the fact, that the claimant herein sustained 20% physical disability of his right upper limb was not in dispute. The only question to be decided is, the impact of such 20% physical disability of right upper limb on the income or earning capacity of the claimant. The tribunal in the instant case failed to assess the impact of the injury on the earning capacity of the claimant and granted a lump-sum amount of Rs. 10,000/- towards loss of earning capacity for disability, which is apparently erroneous.

12. Evidently, the claimant was a professional driver before the accident and he was driving a minibus (not a bus). The claimant deposed that after the accident, because of the disability of his right upper limb, he has not been able to undertake his occupation of driving the bus, and as such, according to him, the 20% disability of the right upper limb rendered him unemployed and has not be able to earn anything. No evidence was brought on record, to show whether the claimant has undertaken any other profession or occupation or earning something even with the disability, though he might not be able to drive the kind of vehicles, he was driving before the accident. Be that as it may, even if it is assumed for the sake of argument, that with the 20% disability of the right upper limb, the appellant may undertake some other occupation or may be able to drive some lighter vehicle, he will certainly not be able to continue with his existing occupation with 20% physical disability of right upper limb. So, having considered all these aspects and the nature of the injury, though it is not possible to assess the exact loss of income with arithmetical accuracy, there is no way but to make some guess work. The Apex Court, in Sayed Sadiq and Ors. v. Divisional Manager, United India Insurance Co. Ltd. reported in (2014) 2 SCC 735 , where a cleaner of a Lorry, who sustained 22% permanent disability of upper limb and 29% disability of lower limb, the Apex Court accepted the functional disability as 85%. Having regard to the occupation of the claimant and 20% physical disability, of the upper limb, this Court is inclined to accept the functional disability of the claimant to the extent of 50%, reason being that with the disability of the right hand he will not be able to drive heavy vehicle like bus.

13. Having decided the extent of functional disability the next question comes is what shall be the loss of income. The claimant stated, that his salary as a professional driver was Rs. 4,000/- and he also used to get Rs. 50/- as daily allowance and proved the salary certificate as Ex. 7. It is the contention of the learned counsel for the Insurance Co. that Ex. 7 cannot be looked into, as the same was not duly proved by examining the author. No doubt the author of the Ex. 7 was not examined in the instant case, but the fact remains is that the occupation of the claimant at the relevant time was not disputed. Therefore, even in absence of documentary evidence regarding income, having considered the occupation of the claimant and having regard to the relevant point of time, when the accident occurred, it is not difficult to guess that the income of the claimant could not be less than Rs. 4,000/-, even going by the wages of a skilled labourer. I am, therefore, inclined to accept the income of the deceased as Rs. 4,000/-. An amount equal to 25% of the income has to be added to the actual income of the claimant as future prospects, in view of the age of the victim, being 46 years. With the monthly income of the claimant as Rs. 4,000/-, adding 25% as future prospects and applying multiplier 13, total loss of earning suffered by the appellant shall be Rs. 4,000/- + 1,000/- X 50%X 12X13 = Rs. 3,90,000/-

14. The tribunal granted Rs. 32,000/- towards medical expenses and Rs. 10,000/- towards future medical treatment as special damage and as such, no enhancement is called for, so far the above special damages are concerned. Following the criteria laid down by the Apex Court in Raj Kumar v. Ajay Kumar (supra), the claimant shall be entitled to some amount of non-pecuniary damages towards pain and suffering, loss of amenities of life and loss of expectation of life. Thus, the enhanced compensation to which the claimant shall be entitled in the instant case is re-assessed as under :-

Loss of earning

=

Rs.3,90,000/-

Medical Expenses

=

Rs. 32,000/-

Future Treatment

=

Rs. 10,000/-

Pain and suffering

=

Rs. 40,000/-

Loss of Expectation of life

=

Rs. 50,000/-

Loss of Amenities of life

=

Rs. 50,000/-

Total

=

Rs. 5,72,000/-

15. The respondent No. 3, Oriental Insurance Co. Ltd. shall satisfy the above award of Rs. 5,72,000/- with interest fixed by the tribunal by depositing the same with the tribunal within six weeks. However, the amount awarded as future prospects shall not carry any interest. The tribunal shall ensure that 50% of the awarded amount including the interest be deposited in the name of the claimant in a nationalized bank for two years and 30% be fixed deposited for a period of one year in a nationalized bank.

16. The appeal stands allowed with the enhancement as indicated above.

17. Send back the LCR.