The assessment of disability and its impact on earning capacity, as per the provisions of the Employees' Compensation Act, 1923, influenced the court's decision in computing the compensation.

1. The first respondent (claimant), then aged about 44 years, engaged in earning her livelihood by running a boutique, was travelling in a bus bearing registration no.UP-17T-1857 on 28.02.2011 at about 8.15 a.m. and as she was about to alight, the driver of the bus started it suddenly with a jerk rendering her lose balance and fall down on the road, her right leg coming under the wheels crushing the said limb. She was moved to the hospital where she underwent surgical procedures. Eventually, her right lower limb from the level of middle thigh - above knee - had to be amputated rendering her permanently disabled. She instituted accident claim case (MACT 210/11, new MACT No.14605/15) on 03.05.2011 impleading the driver and owner (second and third respondent herein) and the appellant/insurance company, it admittedly being the insurer against third party risk in respect of the said vehicle.

2. The Motor Accident Claims Tribunal (Tribunal) held inquiry and, by judgment dated 22.09.2016, upheld the case for compensation on the principle of fault liability awarding total compensation in the sum of Rs.48,59, 835/- fastening the liability on the appellant/insurer to pay the same with interest, except against last two components calculating it as under :-

NON-PECUNIARY COMPENSATION

Compensation towards pain and suffering	Rs.1,00,000/-
Compensation towards loss of amenities of life	Rs.1,50,000/-
Compensation towards disfiguration and amputation of leg	Rs.1,50,000/-
Total non-pecuniary compensation	Rs.4,00,000/-

PECUNIARY COMPENSATION

3. The insurer by the appeal at hand, questions the computation of compensation on various grounds.

4. In calculating the loss of income in future due to disability on account of amputation of substantial part of right lower limb, the tribunal considered certificate (Ex.PW2/A) whereby the medical board has assessed her disability to be permanent to the extent of eighty five per cent (85%) in relation to the said right lower limb. Though the claimant had argued that her disability be treated as 100%, the insurance company submitted before the tribunal that it be treated as half of the disability assessed by the medical opinion. The Tribunal took it as 85% in relation to the whole body for calculating the loss of income in future. It is this assessment which is questioned by the insurance company, reliance primarily being placed on the decision of the Supreme Court in Raj Kumar Vs. Ajay Kumar and Anr., (2011) 1 SCC 343.

5. It is the argument of the learned counsel for the insurer that the work in which the claimant was engaged was not labour intensive and therefore, the assessment of functional disability is high. It is noted that the claimant had led elaborate evidence with regard to she being engaged in the business of boutique for last several years, income tax returns (ITRs) for the assessment year 2008-2009 to 2010-2011 having been brought on record and formally proved. It is not correct to argue that because the claimant was running a boutique all that she would be required to do would be to supervise, entertain clients at the cash desk and make collections. As the proprietor of the business which she was running, she would be obliged to move around and monitor the ent