JUDGMENT

Not satisfied with the quantum of compensation, the claimant has filed this appeal.

2.The learned counsel for the appellant/claimant would state that though Ex.P8-disability certificate has been produced to prove that due to the amputation of right leg above knee, the appellant/claimant has sustained permanent disability to the extent of 80%, the Tribunal has reduced the same to 70% without any basis. He would further state that the appellant/claimant was a Mini Lorry driver by avocation and due to amputation of right leg above knee, he could not at all do his avocation as driver and therefore as per the judgment reported in 2010 (2) TN MAC 581(SC), Raj Kumar vs. Ajay Kumar and another, the functional disability suffered by the appellant is 100%. He would also state that though the appellant claimant that as a driver in Mini Lorry, he earned Rs.30,000/- per month, the Tribunal in the absence of proof, has fixed a meagre sum of Rs.6,000/- per month. Considering the date of accident and the avocation of the appellant, the Tribunal ought to have fixed Rs.9,000/- as monthly income. Thus, he would pray for appropriate modification on the quantum.

3.Heard the learned counsel for the appellant as well as the 2nd respondent.

4.Perusal of record shows that the appellant/claimant claimed that at the time of accident, he was aged 38 years and was working as a driver in a Mini Lorry and earned Rs.30,000/- per month. PW2 Doctor who examined the appellant with reference to the medical records, has stated that due to grievous injuries, the appellant took treatment as inpatient in Government Medical College Hospital, Madurai, between 14.01.2018 and 28.02.2018, during which, a surgery was performed and the right leg of the appellant above knee was amputated due to grievous injuries. PW2 Doctor has assessed the disability sustained by the appellant at 80% and issued Ex.P8-disability certificate. However, the Tribunal has reduced the percentage of disability at 70%. In the absence of proof for income, the Tribunal has fixed the income of the appellant at Rs.6,000/-. After adding 40% towards future prospects and applying 15 multiplier according to the age of the appellant, the Tribunal has fixed the compensation at Rs.10,58,400/- towards 70% disability and future loss of income. In the judgment of this Court reported in 2019 (1) TN MAC 54 (DB), Andal vs. Avinav Kannan, the Division Bench, evolving formula for determining notional income considering rise in inflation index, has fixed Rs.11,000/- as notional income for the accident occurred therein in 2014. In the present case, the accident is of the year 2018 and therefore, the Tribunal atleast ought to have fixed the monthly income of the appellant at Rs.11,000/-. Accordingly, the monthly income of the appellant is fixed at Rs.11,000/-.

5.As regards the contention of the learned counsel for the appellant that due to amputation of the right leg above knee, the appellant is completely not able to do his avocation as a driver, as such, the functional disability is 100%, this Court finds merit in the said contention. In this regard, it is relevant to extract below paragraphs 10 and 13 of the judgment reported in 2010 (2) TN MAC 581(SC), Raj Kumar vs. Ajay Kumar and another:-

''10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and