1. This is an appeal under section 173 of the Motor Vehicles Act by the claimant against the judgment and award dated 27.4.2009 as passed by the Motor Accident Claims Tribunal, Kamrup, in MAC Case No. 1324/2004.

2. The findings as returned by the Tribunal as regards the accident that occurred on 4.7.2003 involving the vehicle bearing registration No.ML-08/9497, which was insured with the respondent No.1, United India Insurance Company Ltd. as well as the injuries sustained by the appellant from the said accident are not in dispute by either of the parties or in the appeal. As such, those findings are affirmed and further appraisal thereof is avoided.

3. The solitary question that has been projected in the appeal is that the Tribunal acted illegally by not accepting the Disability Certificate (Exbt-2) and the other medical documents (Exbts.- 6,7,8,9 and 10 series), which demonstrated the disability of the appellant as received from the accident. The finding of the Tribunal has been brought under serious criticism where the Tribunal has recorded as under :

"Usually we are to be governed by the section 142 and second schedule of MV Act and schedule 1 of the Workmen's Compensation Act, so far the question of injuries deemed to be resulted in permanent disablement, total or partial and corresponding loss of earning capacity consequent thereof is concerned, inasmuch as, according to the second schedule of the MV Act disability and resultant loss of earning capacity is to be assessed according to schedule 1 of WC Act. The injuries and resultant disability suffered by the claimant as deposed to by PW3 and disclose by Ex.2 does not appear to be covered by any of the clauses of partial disability enumerated in schedule one of the WC Act, or section 142 of the MVAct. However, schedule 2 of the MVAct is meant for a petition under section 163A of MVAct. The present petition being under section 166 of MVAct, it is not necessary that we must strictly follow the second schedule, although usually the spirit of the second schedule is taken note of, in deciding the cases under section 166 of MVAct(2). Notwithstanding the disability of 50% in the instant case having not come within the purview of disability enumerated in schedule 1 of the Workmen's Compensation Act or section 142 of the MVAct, it cannot necessarily be said that the petitioner has not suffered any disability at all. In case of partial disability basic question is what is the corresponding loss of earning capacity for the disability alleged. Evidently the disability in the instant does not come under any of the clauses of schedule one of the WC Act, and as such the loss of earning capacity resulted from the disability has to be ascertained on the basis of the facts and circumstances of the present case. The petitioner has not adduced any evidence to show as to how far his earning capacity has been affected for the injury. Evidently the claimant has not suffered any fractured injury. As per Ex.2 disability is attributed only to the weakness and pain. Since the claimant has failed to adduce any evidence, as to how and to what extent his earning capacity has been affected and disability of the claimant also having not covered either by schedule one of the WC Ac or section 142 of the MVAct, it is difficult to hold that the claimant has suffered any loss of earning capacity for the disability alleged in the instant case."

4. Mr. K. Bhattacharjee, learned counsel appearing for the appellant strenuously urged this court to assess the compensation going by the Ext.2 document, i.e., on the basis of the disability as received by the appellant to the extent of 50%.

5. The Ext.3 document also is in the nature of a public document issued by the Government of Assam for persons with disability which shows that the appellant is orthopedically handicapped by 50%. However, from the certificate issued from the Mahendra Mohan Choudhury Hospital (Ext.2), it appears that the appellant only suffered weakness

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