1. Heard Mr. B.K. Jain, the learned counsel for the appellant as well as Mr. K.K. Dey, the learned counsel appearing for the respondent No. 1.

2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”) is preferred against the judgment and award dated 12.02.2010, passed by the learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati in MAC Case No. 1456/2002. This appeal has been filed for enhancement of award.

3. The case of appellant in brief is that on 04.05.2001 while he was proceeding from Ganeshguri towards Zoo Road Tiniali at Guwahati on his motorcycle bearing registration No. AS-01-B-9905, near Sundarpur, suddenly a Matiz Car bearing registration No. AS-25-B-2277, which was coming from the same direction at a high speed in a rash and negligent manner, hit the motorcycle of the appellant from behind. As a result of the accident, the appellant had suffered multiple injuries and he was taken to GMC Hospital. Later on, he was shifted to Patna for better treatment. In his written statement, the appellant had stated that he had sustained permanent disablement to the extent of 50% and had also suffered loss of earning capacity more than 70%. It was projected that prior to the accident, the appellant had used to earn Rs.8,000/-to 10,000/-per month. The respondents No. 1 and 2 had contested the claim case by filing their written statement. The respondent No. 3 i.e. United India Insurance Co. Ltd., had denied its liability as well as the statements made in the claim petition on the ground that the amount of compensation claimed by the appellant was highly exaggerated and the respondent No.3 had put the appellant to strict proof of his claim.

3. In respect of the claim petition, the appellant had examined himself as (PW.1) and had also examined the doctors as PW.2 and PW.3. The appellant had exhibited following documents, viz., Accident Information Report (Ext.1), Certified copy of the FIR (Ext.2), Discharge slip (Ext.3) Medical/pathology/diagnosis reports [Ext.4(1) and 4(2)], Medical prescriptions [Ext.5(1) to 5(3)], Cash memos and vouchers [Ext.6(1) to 6(93)], Railway Ticket [Ext.7(1) to 7(3)], Medical certificate and other medical papers [Ext.8(1) to 8(4)], Disability Certificate (Ext.9) and Charge-sheet (Ext.10). The respondents had not adduced any rebuttal evidence.

4. On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication:

(i) Whether the alleged accident took place due to the rash and negligent driving of the driver?

(ii) To what extent the claimant is entitled to receive compensation and by whom payable?

5. On the basis of the evidence on record, the learned Tribunal had held in respect of issue No.1 that the accident causing injury to the appellant had occurred due to rash and negligent driving of the offending vehicle and it was further held that the offending vehicle was insured with respondent No. 3 and, as such, the issue No.1 was decided in favour of the appellant.

5. In respect of issue No. 2, the learned Tribunal had held that on account of medical treatment, the appellant had incurred approximately an amount of Rs.58,000/-. Relying on the ‘disability certificate’ (Ext.9), it was held that the doctor (PW.2) had certified that the appellant had suffered permanent disability at 40% due to muscular weakness in left leg, pain and restriction of all movements in both knee and ankle following fracture. It was further held that the disability in the instant did not come under any of the clauses of Schedule-I of the WC Act. It was held that the appellant had not adduced any cogent evidence regarding his source of earning or as to how his earning has been affected and it was held that since the appellant was suffered partial disability of his leg, it would certainly have some adverse effect on is earning capacity and t