JUDGMENT : Parth Prateem Sahu, J. 1. Appellant-insurance company has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) challenging the award dated 18.10.2024 passed by Learned Motor Accident Claims Tribunal, Kabirdham, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 72/2023, whereby learned Claims Tribunal allowed the application filed by applicant-claimant therein under Section 166 of the Act, 1988 in part and awarded total sum of Rs. 33,04,000/- as compensation. 2. Facts of the case relevant for disposal of this appeal are that on 31.05.2023 at about 07:30 pm in the evening, Ramkumar Patel after stopping his motorcycle bearing number CG09 JG 3802 was standing on side of the road in front of tahsil office, at that relevant time, a truck bearing number CG 04 NK 1385 (hereinafter referred to as “offending truck”) driven by non-applicant No. 1 rashly and negligently dashed him and caused accident. In accident, Ramkumar Patel suffered grievous injuries on his person, his palm of right hand was cut off and his left leg got severally injured. He was taken to District Hospital, Bodla, from where he was referred to Roopjeevan Hospital, Kawardha and thereafter looking to grievous injuries he was admitted to BTRC, Multispeciality Hospital, Bilaspur, where his left leg was amputated. Accident was reported to police station Bodla, against non-applicant No. 1- driver, based on which Crime No. 147/2023 was registered for alleged offences under Sections 279, 337, 338 of IPC. 3. Respondent No. 1/ applicant-claimant filed an application under Section 166 of the Act of 1988 seeking compensation of Rs. 33,04,000/- on the grounds pleaded therein. 4. Respondents No. 2 & 3/ Non-applicants No. 1 & 2 -driver and owner of the offending truck filed joint reply to the application, denying the facts pleaded therein. It was further pleaded that a false and frivolous case has been lodged against non-applicant No. 1, no accident occurred by the offending truck. On the date of accident, non-applicant No. 1 was possessing valid and effective driving licence, and the offending vehicle was insured by non- applicant No. 3. 5. It was further pleaded that a false and frivolous case has been lodged against non-applicant No. 1, no accident occurred by the offending truck. On the date of accident, non-applicant No. 1 was possessing valid and effective driving licence, and the offending vehicle was insured by non- applicant No. 3. 5. Appellant/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident non-applicant No. 1 was driving the offending truck in breach of policy conditions, he was not possessed with valid and effective driving licence. There were no valid permit, fitness certificate of the offending vehicle. The accident occurred between two vehicles, as such there was contributory negligence on the part of driver of motorcycle also. The driver, owner and insurer of the motorcycle on which the applicant was riding were not made party to the proceedings, thus, the application is not maintainable. 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that applicant -Ramkumar Patel suffered grievous injuries in the accident arising out of rash and negligent driving of offending truck driven by non-applicant No. 1. Breach of conditions of insurance policy, contributory negligence and non-joinder of party were not found to be proved. Tribunal calculated the amount of compensation and awarded Rs. 21,15,894/- as total compensation with interest @ 6% p.a. from the date of filing of claim application till its realization and fastened liability to satisfy the award upon non-applicant No. 3-Insurance Company. 7. Learned counsel for appellant-insurance Company would submit that the Claims Tribunal though considered the disability certificate issued vide Ext. P-54C wherein permanent disability is mentioned as 70%, however, loss of earning is assessed as 100%. She submits that in the similarly situated facts of the case where a person/ claimant who was working as Mason, whose one leg was amputated, his loss of earning was considered as 80% and therefore, in the case at hand also, loss of earning would be not more than 80%. 8. Learned counsel for the respective respondents would submit that as the claimant/ injured was working as Mason, with amputated left leg, he would not be able to do the work of Mason and therefore Claims Tribunal justified in assessing 100% loss of earning capacity. 9. 8. Learned counsel for the respective respondents would submit that as the claimant/ injured was working as Mason, with amputated left leg, he would not be able to do the work of Mason and therefore Claims Tribunal justified in assessing 100% loss of earning capacity. 9. I have heard learned counsel for the respective parties and also perused the record. 10. The short question involved in this appeal is whether the Tribunal justified in assessing 100% functional disability/ loss of earning capacity despite the Disability Certificate showing 70% permanent disability? And, what will be the appropriate assessment of loss of earning in the facts of the case? 11. It is undisputed that as a result of the accident, Respondent No. 1/ applicant sustained severe injuries to his left leg, leading to the amputation of his left leg below knee. It is also undisputed that the appellant suffered 70% permanent disability due to the motor accidental injuries of which Disability Certificate is issued and placed in record as Ext. P-54C. 12. So far as the disability of the appellant is concerned, the learned Claims Tribunal considering the facts and circumstances of the case, nature of occupation of Respondent No. 1/ applicant to be labourer and further the fact of amputation of his left leg below knee has held the functional disability/loss of income of the Respondent No. 1/ applicant to the extent of 100%. A person who suffers from permanent disability, particularly one who had a leg amputated below the knee, is unlikely to be able to engage in manual labour. The physical limitations resulting from such a disability would severely hinder the individual’s ability to perform tasks that require mobility and physical strength. 13. The law is well settled that the percentage of physical disability cannot mechanically be equated with loss of earning capacity. Hon’ble Supreme Court in the case of Rajkumar v. Ajay Kumar and another reported in (2011) 1 SCC 343 held that functional disability must be determined based on the nature of employment, age, and the injured’s ability to engage in alternative livelihood and held thus: “ 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. 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 permanent disability (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 functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 14. In case of Sanjay Rajpoot vs. Ram Singh , reported in LAW (SC) 2025 2 34 Hon’ble Supreme Court has considered the loss of income of a self employed person running and managing his own business suffered with the amputation of one leg above knee and assessed the functional disability of the appellant as 90% and held as under :- “ 10. We have heard the learned counsel for the parties. Respondent No.3 – the insurer has not entered appearance. We are unable to agree with the view taken by the Tribunal and High Court on the functional disability suffered by him and also the determination of his age. The Claimant- Appellant is not salaried, but is self-employed running and managing his own business. For the Appellant to be able to effectively run his business, he is definitely required to move around. This has been hampered significantly by his amputation, which proves that the functional disability of the Appellant will severely impact his earning capacity. Therefore, the correct view would be to assess the disability of the Claimant- Appellant as 90%.” 15. Hon’ble Supreme Court in Sunil Kumar Khushwaha v. Katragadda Satyanarayana & Anr., reported in 2025 SCC OnLine SC 1038 in para-5 of its judgment has held that- “We are not satisfied that a functional disability of 100% can be assessed only because he cannot carry on the vocation which he was carrying on earlier” and reduced tribunal’s 100% assessment to 60%, holding that though the injured could not continue his prior manual work, residual earning capacity existed. 16. 16. In the case at hand, Respondent No. 1/ applicant was engaged as a mason, ie., a work that undeniably requires mobility and physical effort. However, Masonry involves a range of activities—planning, measurement, supervision, and lighter tasks—that can still be performed. The amputation is below the knee; with prosthetic support, partial mobility and capacity to perform certain tasks remain. There is no evidence to prove that the claimant is rendered completely unemployable or incapable of pursuing any income-generating activity. 17. Having considered entirety of facts and circumstances of the case and also the aforesaid decision of Hon’ble Supreme Court and evidence, in the opinion of this Court the Tribunal erred in awarding 100% functional disability/ loss of earning capacity by merely equating it with the claimant’s inability to continue as a mason. The appropriate assessment of loss of earning capacity for the purpose of earning his livelihood holding him to be labourer, would be 80%. It is ordered accordingly. 18. As this Court has observed that loss of earning assessed by the Tribunal of 100% to be erroneous and assessed it as 80%, I find it appropriate to re- calculate the compensation to see whether the total compensation awarded to claimant in the facts of the case is just and proper or excessive. 19. Claims Tribunal had considered the occupation of claimant as Mason (skilled labourer). Accident is dated 31.05.2023, income pleased as Rs. 500 per day and 15,000 per month. Income is not proved by producing admissible evidence, hence, for the purpose of computing compensation, his income is to be assessed taking help of minimum wages fixed by the competent authority under Minimum Wages Act, 1948 for skilled labourer. As per notification issued by the competent authority the minimum wages fixed for the period from 01.04.2023 to 30.09.2023 is Rs. 11,390 per month. Hence, income of claimant could be assessed as Rs. 11,390 per month and Rs. 1,36,680 per annum. Upon applying multiplier of 13, total income would be Rs. 17,76,840, 80% of which will come to Rs. 14,21,472. 20. In addition to Rs. 14,21,472 towards loss of income, claimant will be entitled for Rs. 3,50,874 as medical expenses, loss of income during period of treatment for 6 months as awarded by the Tribunal of Rs. 68,340 ( Rs. 11390X6), attendant Rs. 26,500 (as awarded), Rs. 15,000 towards special diet, Rs. 1,00,000 towards pain and suffering, Rs. 14,21,472. 20. In addition to Rs. 14,21,472 towards loss of income, claimant will be entitled for Rs. 3,50,874 as medical expenses, loss of income during period of treatment for 6 months as awarded by the Tribunal of Rs. 68,340 ( Rs. 11390X6), attendant Rs. 26,500 (as awarded), Rs. 15,000 towards special diet, Rs. 1,00,000 towards pain and suffering, Rs. 10,000 towards conveyance expenses. Claimant suffered 70% permanent disability resulting in 80% loss of income, age of claimant was 46 years, he has to live with the said disability for whole of his life, may not be able to enjoy the life and participate in social activities like an ordinary man, however, compensation towards loss of amenities in life is not awarded, which I find it appropriate to be Rs. 1,00,000. Particulars Compensation Loss of earning capacity apportioning it to be 80% Rs. 14,21,472/- Medical expenses Rs. 3,50,874/- Loss of income during treatment period Rs. 68,340/- Attendant Rs. 26,500/- Special Diet Rs. 15,000/- Mental Pain and suffering Rs. 1,00,000/- Conveyance expenses Rs. 10,000/- Loss of amenities in life Rs. 1,00,000/- Total Rs. 20,92,186/- 21. Now the claimant shall be entitled for total sum of compensation of Rs. 20,92,186/- instead of Rs. 21,15,894/- as awarded by learned Claims Tribunal. It is ordered accordingly. Amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. Any amount paid to the Respondent No. 1/claimant pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Rest of the conditions as imposed by the Claims Tribunal in the impugned award shall remain intact. 22. In the result, appeal filed by insurance company allowed in part and the impugned award is modified to the extent as indicated herein-above.