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SATYEN VAIDYA, J. –

By way of instant appeal, appellant has assailed impugned award dated 14.12.2012, passed by learned Motor Accident Claims Tribunal (II), Mandi, District Mandi, H.P. in Claim Petition No. 39 of 2007.

2. Appellant filed a petition under Section 166 of the Motor Vehicle Act against respondents with the allegation that on 31.07.2005, a Scooter being ridden by appellant was hit by Car bearing No. HP-33A-2061 being driven by respondent No.1 in rash and negligent manner at place Kansa Chowk, Tehsil Sadar, District Mandi, H.P. as a result of which appellant suffered injuries and permanent disablement of left lower limb to the extent of 10%. It was also alleged that the left leg of appellant has shortened by one inch.

3. Respondent No 1 being the owner and driver of the vehicle contested the claim by denying the factum of accident. All other averments made in the petition were also denied in generality.

4. Respondent No. 2 being insurer of the offending vehicle also filed its reply and denied liability to indemnify respondent No. 1 by alleging violation of terms and conditions of contract of insurance by the insured. It was also averred that the appellant himself was negligent as a result of which accident took place.

5. Learned Tribunal framed the following issues-

1) Whether on 31.07.2005 at Kansha Chowk Vehicle in question was driven by respondent Ram Lal in rash and negligent manner which met with an accident resulting in causing the injuries to the claimants as alleged? OPP.

2 Whether respondent Ram Lal was not possessing valid and effective driving license at the time of accident? OPR-3.

3. Whether vehicle in question was plied in contravention of terms of insurance policy and provisions of Motor Vehicle Act as alleged? OPR-3.

4) If issue No. 1 is proved in affirmative, whether the petitioner is entitled for claim of compensation, if so to what amount and by whom? OPP.

5) Relief.

Issue Nos. 1 and 4 were decided in affirmative, whereas all other issues were decided in negative. The petition was accordingly allowed and petitioner was held entitled to compensation of Rs. 1,85,918/- alongwith interest @ 7.5 % per annum from the date of filing of petition. The liability to satisfy the award was held to be joint and several between the respondents.

6. I have heard learned counsel for the parties and have also gone through the record of the case carefully.

7. Learned counsel for the appellant has contended that the income of the appellant has been assessed at Rs. 3,000/- per month which is on a very lower side, whereas the evidence on record proved his income to be Rs. 12,000/- per month. It has also been submitted that though the disability certified by medical expert in case of appellant was 10% of the lower left limb, but the actual functional disability was much more as the appellant was self-employed worker engaged in the job of shuttering in construction of buildings. According to him, after accident the appellant has lost substantial capacity to perform the job in the same manner as he used to do before receiving injury. The impugned award has also been challenged on the ground that the learned Tribunal had not taken into consideration the future prospects of enhancement of income of the appellant.

8. Learned counsel for the respondents on the other hand have supported the impugned award by contending that learned Tribunal had awarded just and reasonable compensation to the appellant keeping in view the evidence on record.

9. As per case projected by the appellant, he was engaged in providing shuttering in construction of buildings. It was also specifically averred that on account of injuries and permanent disability received by the appellant he was not able to do his shuttering work. While examining himself as his own witness, appellant reiterated the above fact on oath. Noticeably, there is no challenge to the version of the appellant that due to injuries suffered by him in the accident, he was not able to carry the shuttering work. Though, both the respondents have subjected the appellant to cross-examination, but he was not confronted on the above aspect at all.

10. Learned Tribunal has completely missed out at this vital aspect of the matter. While assessing the monthly income of the appellant at Rs. 3,000/-, loss of income has been assessed at 10% per month i.e. Rs. 300/-

11. The functional disability is quite different from the disability certified medically. The functional disability has direct relation with the nature of work done by the person suffering disability and its actual impact on his working capacity. In Mohd. Sabeer @ Shabir Hussain Vs. Regional Manager, U.P. State Road Transport Corporation, (2022) SCC Online SC 170 = 2023(1) L.A.R. 374 = (2022) Law Today Live Doc. Id. 17314, it has been observed as under:-

“14. To assess the quantum of compensation to be awarded, this Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the Appellant, as held by this Court in the case of Sandeep Khanuja Vs. Atul Dande and Anr. 2. The relevant paragraph of the judgment is quoted hereunder :-

“The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. We feel that the conclusion of the MACT on the application of aforesaid test is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and therefore his working capacity is not impaired….. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily able. Movements of the appellant have been restricted to a large extent and that too at a young age.”

15. This Court has also laid out in the case of Raj Kumar Vs Ajay Kumar and Anr.3 that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation for loss of future earnings would 2 (2017) 3 SCC 351 3 (2011)1SCC343 depend upon the impact and effect of the Permanent Disability on his earning capacity. This Court observed as under :-

“Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.”

12. In light of above exposition and availability of above noticed version of the claimant, it will not be unreasonable to infer that shortening of leg and permanent disability of claimant will be the permanent impairment of his working capacity more particular when his profession requires arduous hard physical labour. Loss of working capacity will result in less productivity. Hence, loss of income can conveniently be assessed, even by conservative approximation, at 20%.

13. The contention of appellant that his income was much more than what has been assessed by learned Tribunal has remained unsubstantiated by any dependable evidence. It was only by way of version rendered by the appellant as also one of his witnesses that the appellant used to earn Rs. 10,000/- per month from shuttering work, no other credible evidence was placed on record. The appellant could easily have produced as witnesses such persons, who had engaged the appellant for shuttering work and made payments to him as claimed by the appellant. Further, it cannot be ignored that the accident had taken place in the year 2005. In the said year, minimum wages fixed for the semi-skilled workers under Minimum Wages Act, were not more than Rs. 100/- per day. In such view of the matter, no fault can be found with the impugned award insofar as the assessment of monthly income of appellant is concerned.

14. Learned Tribunal has not taken into consideration the future prospects in respect of the income of the appellant. As per appellant himself, he was 40 years old at the time of accident. In National Insurance Co. Ltd. Vs. Pranay Sethi (2017) 16 SCC 680 = 2018(1) L.A.R. 1 = (2017) Law Today Live Doc. Id. 10002, it has been held that in case of a deceased victim of motor vehicle accident at the age of 40 years with proof of regular income enhancement of 40% was liable to be given on account of the future prospects. The same principle has been applied in the case of an injured victim having suffered disability in Mohd. Sabeer’s case (supra).

15. In light of above discussion, the appeal deserves to be allowed. Ordered accordingly. The impugned award dated 14.12.2012, passed by learned Motor Accident Claims Tribunal (II), Mandi, District Mandi, H.P. in Claim Petition No. 39 of 2007, is modified to the extent that the monthly income of the appellant shall be assessed at Rs. 4,200/- by addition of 40% towards future prospects. Further, by taking into consideration the functional disability of appellant his loss of income is assessable at 20% even by conservative approximation and thus, the loss of income per month would be Rs. 840/- and the annual loss of income will be Rs. 840 x 12= Rs.10,080/-. Learned Tribunal has rightly applied the multiplier of 15 and thus, the total loss of income will be Rs. 10,080 x 15= Rs. 1,51,200/-. Rest of the award shall remain the same.

16. The appeal, is accordingly, disposed of, so also the pending miscellaneous application(s), if any.

Order accordingly.

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