The court clarified that functional disability assessment must reflect the earning capacity loss, distinct from percentage of permanent disability, requiring consideration of the claimant's professional context.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. R. Goswami, learned counsel for the appellant. Also heard Ms. D. D. Roy, learned counsel appearing for respondent No. 1.

2. This appeal under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the appellant, namely, M/s Liberty General Insurance Limited, impugning the judgment and award dated 07.01.2021, passed by the Motor Accident Claims Tribunal No. 3, Kamrup(M), Guwahati in MAC Case No. 652/2017 whereby an amount of Rs.9,92,300/- along with interest at the rate of 7.5 % per annum from the date of filing of the claim petition was awarded as compensation to the respondent No. 1 and the present appellant was directed to pay the same.

3. The relevant fact for consideration of the instant appeal, in brief, are that the claimant (respondent No. 1) had approached the Motor Accident Claims Tribunal No. 3, Kamrup(M), Guwahati by filing an application under Section 166 of the Motor Vehicle Act, 1988, seeking compensation for the injuries sustained by him as a result of motor vehicular accident which occurred on 24.11.2016. It is stated by the claimant in his application before the Motor Accident Claims Tribunal that on the aforesaid day, while he was coming from Bongshor towards his house at Gandhmou by walking, he was hit by a motorcycle bearing Registration No. AS-25-H-1854 (Honda Dio) causing serious injuries on his person. Immediately after the accident, the claimant was taken to Guwahati Medical College and Hospital where he was admitted and later on discharged on 03.01.2017.

4. The claimant/respondent No. 1 sustained head injuries as well as Type-II compound fracture of both bone in the right leg, Type-I compound fracture of femur, fracture shaft of humerus right. The present appellant as opposite party No. 3 in the claims case contested the claim by filing written statement and denied its liability to pay any compensation to the claimant/respondent No. 1.

5. Upon pleadings of both the parties, the Motor Accident Claims Tribunal framed following issues:-

“(I) Whether the claimant Dipak Baishya sustained injuries in the alleged road accident dated 24.11.2016 at about 07.30 pm at Niz-Gandhmow involving the vehicle bearing registration No. AS-25-H-1854 (Honda) and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?

(II) Whether the claimant is entitled to receive any compensation and, if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?”

6. During the course of inquiry, the claimant examined himself as PW-1 and exhibited certain documents. He also examined Dr. Sujata Hazarika as PW-2, whereas the Insurance Company/appellant adduced no evidence.

7. Ultimately, by the judgment and award which has been impugned in the instant appeal, the Motor Accident Claims Tribunal allowed the claim petition and directed the appellant to pay compensation to the claimant in the manner as already described in the foregoing paragraphs.

8. Mr. R. Goswami, the learned counsel for the appellant has submitted that though several grounds have been stated in the memo of appeal. However, the appellant is mainly pressing on the ground that the Motor Accident Claims Tribunal No.3, while passing the impugned judgment, had erred in considering the functional disability of the claimant to the extent of 63% as a whole.

9. He further submits that the tribunal has also erred in assessing the loss of the earning capacity of the claimant to the extent of 63% ignoring the testimony of PW-2. He submits that the deposition of PW-2 as well as the disability certificate which has been exhibited as Exhibit-5 clearly indicates that the claimant suffered physical impairment in relation to his right lower limb only and the disability which has been assessed by the doctor i.e., 63%, was in relation to right limb only and not of the whole body.

10. The learned counsel for the appellant submits that the tribu