JUDGMENT

This appeal is filed by the appellant/claimant challenging the judgment and award dated 21.03.2011 passed in MVC.No.9363/2007 by the learned Principal MACT and Chief Judge, Court of Small Causes, Bengaluru, seeking for enhancement of compensation.

2. Brief facts of the case are that, on 14.10.2006 at about 11.30 p.m., the claimant was standing near Honnenahalli Gate on Bengaluru-Doddaballapur road. At that time, friends of the claimant reached near Honnenahally Gate and stopped their motorcycle in order to talk to the claimant and when they were talking to each other, a Tempo Traveler bearing Reg.No.KA-04-B-5289 came in a rash and negligent manner and dashed against the claimant. Due to which, the claimant sustained grievous injuries.

3. Heard the arguments from both sides and perused the records.

4. The Tribunal has awarded the compensation under various heads as follows:

5. Learned counsel for the appellant submitted that the claimant had suffered amputation above the knee of right leg. Therefore, the compensation amount granted by the Tribunal is on the lower side. Hence, prays for enhancement of compensation.

6. On the other hand, learned counsel for respondent No.2- Insurance Company justifying the impugned judgment and award passed by the Tribunal, prays for dismissal of the appeal.

7. In the present case, from the evidence on record, it is proved that the claimant has suffered amputation of right leg above the knee and other grievous injuries all over the body.

8. The quantum of compensation awarded under the head "injury, pain and suffering" at Rs.1,00,000/- and under the head "medical expenditure" at Rs.3,05,545/- is found to be just and property. Therefore, same are kept in tact.

9. The compensation awarded under the heads "Conveyance Charges" and "Attendant Charges" at Rs.2,000/- and Rs.12,000/- respectively is found to be on lower side. The injuries sustained by the claimant are so grievous that lead to amputation of his right leg above the knee. Therefore, compensation of Rs.30,000/- is to be awarded under the head "Food/Nourishment/ Conveyance/Attendants etc", since the claimant was in patient in the hospital for a period of 40 days.

10. The accident was occurred in the year 2006 and the Tribunal has held the notional income of the claimant at Rs.4,000/- per month, which is found to be correct and accordingly, compensation of Rs.24,000/- was granted for 6 months under the head "loss of earnings during the laidup period". Hence, the same remains in tact.

11. The Tribunal has committed an error in taking the functional disability at 30%, even though the claimant had suffered amputation of his right leg above the knee. The claimant was working as a coolie by profession. The work of coolie requires strength, but due to amputation of his right leg, the claimant is certainly not able to do work of coolie and that will definitely results in 100% loss of earning capacity. Physical disability and functional disability are two different aspects. Even though the doctor has deposed that the claimant has suffered 30% of permanent physical disability towards right leg, but the functional disability is to be considered according to the job/profession of the claimant.

12. Therefore, if the injured is not able to do the work as he was doing earlier prior to the accident, then that would amount to 100% of functional disability. The Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another1, wherein at Paragraph Nos.12, 13 and 19, it is held as under:

“12. The Tribunal should also act with caution, if it proposed to accept the expert evidence o