The central legal point established in the judgment is the assessment of functional disability and its impact on the claimant's earning capacity, as well as the determination of appropriate compensation for future loss of income and pain, shock, and sufferings.

JUDGMENT :

GITA GOPI, J.

1. The claimant injured has challenged the judgment pronounced on 15.10.2009 by Motor Accident Claims Tribunal (Auxi.) Vadodara in MACP No. 354 of 1993, raising the ground that his case has not been considered by deciding the functional disability, as the claimant was amputed below the knee of the left leg. The prospective rise in income was required to be assessed to decide the future loss.

2. Advocate Mr. Adnan Khan with Advocate Mr. M.T.M. Hakim for the appellant submitted that the Tribunal had considered only 30% physical disability, while certificate of Doctor K.A. Baxi was produced on record at Exh.46 and Doctor was also examined vide Exh.45, to prove the permanent disability to the extent of 60%.

2.1 Advocate Mr. Khan submitted that as per judgment of Raj Kumar and Another vs. Ajay Kumar and Another, (2011) 1 SCC 343, the Court was required to assess the functional disability, as the claimant had totally been handicapped because of the left leg amputation below the knee, since his foot was totally crushed in the accident, he was orthopedically handicapped. Mr. Khan submitted that the claimant was working as a cleaner on the truck and this very fact would sufficient enough for the Court to consider the functional disability.

2.2 Advocate Mr. Khan submitted that the learned Tribunal has not considered the sufferings of the claimant, who was admitted in the hospital as an indoor patient, and in his follow up treatment, he faced operation and was orthopedically amputed, and, thus stated that the amount under the head of pain, shock and sufferings was to be appropriately granted.

2.3 Advocate Mr. Khan further stated that the amputation of the leg has affected his day-to-day life and has also affected his self confidence and his standing in the society, and now he would not be in a position to carry on with the work as a cleaner, and looking to the longevity of the life, Mr. Khan submitted that the amount ought to have been granted under the head of loss of amenities.

3. Advocate Mr. G.C. Mazmudar submitted that the learned Tribunal has granted amount under the head of pain, shock and suffering, future loss of income and also under various heads, and stated that Rs. 1,19,000/- for the year 2009, would be considered as just compensation.

4. The facts of the case can be stated as under:

4.1 On 02.02.1993, at about 14:00 hrs., the claimant was on Truck No. GQD-4832 as a cleaner, and the truck was heading from Siddhpur towards Mumbai. When they were passing near village Jambuva, it is stated that, there was quarrel between the claimant and the driver for taking the passenger in the truck; the driver slow down the truck and threw the claimant out of the vehicle, thus his legs got crushed under the rear wheel of the truck.

4.2 The claimant sustained grievous injuries of tibia fibula fracture on his left leg. The claimant was amputed from the knee as well as suffered CLW injuries on the other parts of body. The incident was registered at Makarpura Police Station vide C.R. No. I-48/1993. Advocate Mr. Mazmudar submitted that it is a case of murder, thus outright the claim petition was required to be rejected, since the policy would not cover the risk, as is the case of murder simplicitor.

5. The Tribunal has referred to the judgment of this Court in First Appeal No. 1676 of 2009 decided on 20.06.2009, wherein it has been observed that, Claims Tribunal has committed gross error in dismissing claim petition, the accident is covered under the provisions of the M.V. Act as has occurred due to use of motor vehicle. Therefore, considering Section 163A, 165(1) and 166, if any accident occurs by use of motor vehicle, such person or legal representatives are entitled to file claim petition before claims Tribunal. The claims Tribunal has ignored to consider these relevant Sections while adjudicating the claim petition. The cas