The main legal point established is the assessment of permanent disability and loss of future earning capacity as key factors in determining the compensation awarded in motor accident claims.

1. This appeal by the claimant is directed against the judgment and award in MVC No.4598/2008 dated 8.3.2011 on the file of the Motor Accident Claims Tribunal at Bangalore, whereby the Tribunal has awarded total compensation of Rs.4,62,200/-with interest at 6% per annum from the date of the petition till the date of deposit.

2. Learned Counsel for the appellant would contend that the accident had occurred on 9.3.2008. The claimant was aged 55 years. He was working as a mason and was also rearing the cows and vending milk and earning Rs.15,000/-per month. The claimant had sustained grievous injuries in the accident. The Doctor has assessed 90% permanent disability to a particular limb and 40% permanent disability to the whole body. Since the claimant was doing agriculture and also vending milk, the functional disability is 100%. Strangely, the Tribunal has assessed 25% permanent disability to the whole body. It has taken the income of the claimant at Rs.4,000/- per month for the purpose of computation of loss of future earning capacity. It is argued that having regard to the injuries sustained by him, the Tribunal ought to have awarded compensation towards loss of amenities. It is further contended that the claimant has to undergo surgery for removal of the implants. The Doctor in his evidence has stated that the claimant requires a further sum of Rs.2 lakhs towards future medical expenses. He prays for enhancement of compensation.

3. On the other hand, learned Counsel appearing for the respondent-Corporation has sought to justify the impugned judgment and award.

4. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record.

5. As stated above, the accident had occurred on 9.3.2008.. The claimant was aged 55 years. The Doctor in his evidence has deposed that the claimant had sustained the following injuries:

"1) Cut lacerated wound measuring 4 x 1 cms. on the right knee;

2) Cut lacerated wound measuring 3 x 1 cms. on the right knee;

3) Cut lacerated wound measuring 4 x 2 cms. on the extensor aspect of the middle 1/3rd of right leg;

4) Multiple super facial abrastions of varying sizes are present on the right side of the face and right shoulder;

5) Fracture inferior ramus of right public bone;

6) Fracture of acetabulum with fracture chip adjacent to head of right femur;

7) Comminuted displaced fracture of upper 1/3rd of right tibia with involvement of articular surface; 8) Comminuted displaced fracture of the upper end of right fibula;

9) Displaced, comminuted segmental fracture mid lower 1/3rd of right femur;

10) Comminuted, displaced fracture of lower end of right femur containing articular surface." The Doctor has further stated that the permanent disability in respect of the right lower limb is 90% and in respect of the whole body is 40%. With the said disability, the claimant is unable to do any manual work.

6. It is clear from the evidence on record that the claimant was rearing the cows and doing milk vending business. No materials have been produced to substantiate that he was a mason as also an agriculturist. There is no merit in the contention of the learned Counsel for the respondent that the disability sustained by the claimant will not hamper rearing of cows and milk vending. Rearing of cows involves manual work. He has to take the milk to the milk booth. The claimant had sustained 90% permanent disability to a right lower limb. The Doctor has rightly assessed his permanent disability to the whole body at 40%, which is also the functional disability keeping in mind the nature of work the claimant was doing. Therefore, the Tribunal is not right in assessing 25% permanent disability to the whole body.

7. Though the claimant contends that he was earning Rs.15,000/-per month, the same has not been established by placing materials. I am of the view that it is just and proper to notionally fix his income at Rs.150/- per day (Rs.4,500/-per month). He