IMPORTANT POINTS
Materials on record and surrounding facts should be properly considered before arriving at the conclusion of contributory negligence.
Functional disability and physical disability should be determined for awarding compensation.

JUDGMENT

KURIAN, J.:

Leave granted.

2. Whether an accident victim is entitled to get compensation for functional disability? If so, what is the method for computation of compensation? These are the two issues arising for considerations in this case.

3. Computation of just and reasonable compensation is the bounden duty of the Motor Accident Claims Tribunal. In view of the plethora of judgments rendered by this Court regarding the approach to be made in the award of compensation, we do not find it necessary to start with the first principles. In Rajesh and Others v. Rajbir Singh and Others, (2013) 9 SCC 54 Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited, 2013 (10) SCALE 668 and in Rekha Jain v. National Insurance Company Limited and Others, (2013) 8 SCC 389 this Court recently has extensively dealt with the principles governing the fixation of compensation and the approach to be made by the courts in that regard.

4. In Rekha Jain’s case (supra), this Court following the case of National Insurance Company Limited v. Mubasir Ahmed and Another, (2007) 2 SCC 349 developed a very important principle on functional disability while fixing the compensation. Rekha Jain, a cine artist suffered an injury in a motor accident at the age of 24 years on account of which she suffered 30% permanent partial disability which included disfigurement of her face, change in the physical appearance, etc. It was found that on account of such development, she could no more continue her avocation as an actress and, hence, it was held that she had suffered 100% functional disability. Hence, this Court awarded compensation following the principles laid down in Sarla Verma (Smt.) and Others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121.

5. 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 victim’s 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. 6. Now, we shall refer to the factual matrix. The appellant, driver by profession and operating a tourist taxi himself, met with a motor accident on 05.09.2008. While driving the Tata Sumo car, a bus operated by the respondent, came from the opposite direction and dashed against the car. The appellant suffered fracture on right leg and right arm. According to the doctor, on account of the injuries suffered by the appellant and the operations undergone by him to fix a thick plate in the tibia bone with five screws, the appellant will not be in a position to bend his right knee beyond 90 degrees. There is shortening of the leg by one centimeter on account of nerve injury. He would be limping while walking. He cannot lift weight over 3 kilograms. His right hand movement is restricted to 25 degrees. He will not be able to drive two wheelers and he can drive four wheelers with difficulty. To quote PW1(appellant):

“After the incident, I cannot bend my right knee beyond 90 deg. I cannot use my right hand for lifting any weighty objects. The movements in my right hand elbow and wrist has almost been restricted. I am not in a position to drive the vehicles as before. I cannot use Indian toilet or squat or carry weight. I am walking with limping. Walking and standing for some time is a painful one. Because of the dislocation of bone in the lower jaw, I am not able to open my mouth fully and speak coherently. I find it very difficult to eat hard objects. I am suffering from intermittent head ache and giddiness. I have completely lost my