ORDER

08.04.2024 09. 1. Heard Mr. Das, learned counsel for the appellant and Mr.

Dutta, learned counsel for respondent No.2 Insurance Company.

2. None appears for respondent No.1.

3. Instant appeal is filed by the claimant appellant challenging the quantum of compensation directed in MAC No.49 of 2019 by 3 rd Additional District Judge-cum-4 th MACT, Cuttack on the grounds stated therein.

4. Mr. Das, learned counsel for the claimant appellant referring to the calculation sheet as at Flag-B claims for enhancement of compensation by sum of Rs.8,87,520/- contending that the disability of the claimant should have been treated as 90% instead and while claiming so, he refers to the following decisions, such as, Mohan Soni Vrs. Ram Avtar Tomar & Others, 2012 (1) TAC 385 (SC) and Rekha Jain Vrs. National Insurance Company Limited 2013 (3) TAC 747 (SC). It is submitted that though the disability is held to be 75% but the functional disability should have been at 100% and if not 90% at least since the claimant appellant suffered amputation of his left leg and sustained loco-motor disability, which is permanent in nature.

5. On the other hand, Mr. Dutta, learned counsel for respondent No.2 Insurance Company submits that learned Tribunal did not commit any error and was justified to assess the functional disability at 75% and in support of such contention, he refers to a decision of the Apex Court in the case of Raj Kumar Vrs. Ajay Kumar and Another (2011) 1 SCC 343 which outlined the manner in which the pecuniary damages to be allowed on loss of earning.

6. The original Disability Certificate stands marked as Ext.12. It is not in dispute that the claimant appellant sustained 75% permanent disability. The question is, whether, it has resulted in more than 75% of functional disability so to say which is claimed by Mr. Das and according to him, it should be at 90%. Such claim is based on the nature of injuries received, age of the claimant and a functional immobility on the account of 75% loco-motor disability.

7. In Mohan Soni (supra), the Apex Court held that it is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor but the computation of compensation payable to a victim of motor accident, who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. While discussing the evidence received therein, the Supreme Court further held that loss earning capacity of the injured may be as high as 100% but in no case, it would be less than 90%. In Rekha Jain (supra), the Apex Court considering the fact that the appellant to be a film actress and suffered facial disfiguration held that though she has not suffered 100% physical impairment, the same to be as a case of 100% functional disability. While reaching at such a conclusion, the Supreme Court discussed the decision in R. Venkatesh Vrs. P. Sarvanan and Others 2001 (1) Kar.L.J.411 and Baker Vrs. Willoughby (1969) 3 ALL E.R. 1528. In fact, in R. Venkatesh (supra) referred to above, it was held that as a result of amputation, the claimant has been rendered a cripple and he takes the help of crutches even for walking. Considering such evidence received on account of amputation, the Karnataka High Court held that in such cases, where there is an economic and functional disability, it has to be treated as a whole even though the physical disability is not 100%.

A similar view is expressed by the Apex Court in Mohan Soni (supra).

8. In the instant case, the claimant appellant admittedly sustained permanent disability of 75%. The claimant is a variety shop owner and he suffered amputation of his left leg.

Notwithstanding, any such disability of 75%, taking into account the fact that there is amputation of leg and such is 75% loco-motor disability, the C