The assessment of functional disability and compensation for pain and suffering should be based on medical evidence and the nature of the injury. The liability of the appellant in a motor accident is not absolved solely due to the offending vehicle being driven without valid documents.

JUDGMENT

Navin Chawla, J. (Oral)

1. The present appeal has been filed by the appellant challenging the Award dated 01.04.2016 (hereinafter referred to as the `Impugned Award') passed by the learned Motor Accidents Claims Tribunal, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred to as the `Tribunal') in MACP No. 50/2016 titled Pawan Kumar v. Jaswant Singh & Ors.

2. On 14.10.2011, at about 01:00 PM, the respondent no.1 along with Shri Bijender Singh, on hearing the noise of some accident, approached the road near Grover Petrol Pump, Village Bhokhra, PS Nahianwala, Bhatinda, and saw that an accident had occurred between a truck and a bus. While the respondent no.1 was standing in front of the bus and was helping the passengers to deboard from the bus, all of a sudden a truck bearing no.PB-03U-7545 (hereinafter referred to as the `offending vehicle') being driven in a rash and negligent manner came and hit the bus from its back side, as a result of which, the accidental bus moved ahead and the respondent no.1 came under the bus. The respondent no.1 was moved to the Civil Hospital Bhatinda from where he was referred to the JPN Apex Trauma Centre, AIIMS.

3. In the said accident, the respondent no.1 suffered permanent physical impairment of 95% with respect to his left upper limb and the right lower limb.

4. The learned Tribunal, in its Impugned Award, has also recorded that the respondent no.1 remained admitted in the JPN Apex Trauma Centre, AIIMS from 15.10.2011 to 24.11.2011 and was diagnosed as RTA with injury left arm with axillary artery thrombosts with fracture clavicle with fracture 1st Rib and C7 transverse process with MILD hemopneumothorax with left side brachial plexus injury with fracture HOFFA's fracture right femur with dislocation of the knee joint, and that the respondent no.1 has been operated five times.

Functional Disability taken as 100%:

5. Dr.Adarsh Kumar, Additional Professor, Forensic Medicine and Chairman of the Disability Medical Board (hereinafter referred to as `PW-2') was examined before the learned Tribunal as PW-2. He stated that the respondent no.1 has a total permanent physical impairment of 95% with respect to the left upper limb and the right lower limb. He further stated that the respondent no.1 cannot do any work with his left hand and his disability over the last two years has increased from 90% to 95% with an increase in stiffness in the right knee, which has become permanent in nature. He stated that the respondent no.1 will not be able to walk in a normal manner, cannot squat, and would face difficulty in discharging his routine activities like using the washroom. He further stated that there was no scope of improvement even if the respondent no.1 takes physiotherapy.

6. The learned Tribunal, taking into account the principles laid down by the Supreme Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 for assessing functional disability, assessed the functional disability suffered by the respondent no.1 at 100%. The first ground of challenge of the appellant to the Impugned Award is on this account.

7. The learned counsel for the appellant submits that as the respondent no.1 has suffered 95% permanent disability only with respect to his left upper limb and the right lower limb, therefore, the functional disability should have been assessed at a lower percentage.

8. I am unable to agree with the submission made by the learned counsel for the appellant. In Raj Kumar (Supra), the Supreme Court has held as under:

"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 disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, professi