JUDGMENT & ORDER : Mir Alfaz Ali, J. Heard Mr. A Ahmed, learned counsel for the appellant and Mrs. R Choudhury, learned amicus curie. 2. This is an appeal under section 173 of the Motor Vehicles Act, 1988, filed by the appellant, New India Assurance Company challenging the judgment and award dated 24-01-2003 passed by the MACT, Tezpur in M.A.C Case No. 465/2008. 3. The brief facts of the case is that, the claimant sustained grievous injury on his hand in a vehicular accident involving the motor vehicle bearing registration No. AS-12 C/9753, owned by respondent No. 2 and insured with the appellant. As a result of the injury, the right thumb of the claimant had to be amputated. The claimant filed an application before the MACT, Tezpur seeking compensation for sustaining injury and the learned Tribunal passed an award of Rs. 6,22,000/- in favour of the claimant and directed the appellant/ insurance company to satisfy the award with interest @9% from the date of filing of the claim petition. 4. Aggrieved, the insurance company has preferred the instant appeal. 5. The learned counsel for the appellant submits that though a disability certificate was proved, showing 40% disability of the claimant due to the injury, the doctor issuing the certificate was not examined. On the basis of the said disability certificate, the learned Tribunal assessed the compensation assuming 100% loss of earning capacity, without any evidence on record. Further contention of the learned counsel is that loss of one thumb, as per the Employees Compensation Act, 1923, results in loss of earning capacity of 30% and therefore, awarding compensation taking 100% loss of earning by the Tribunal was erroneous. 6. Refuting the arguments of learned counsel for the appellant, Mrs. R Choudhury, learned amicus curie submits that the claimant is a daily labourer, and because of loss of right thumb he has become fully jobless and therefore, the Tribunal rightly assessed the compensation by taking 100% loss of earning. 7. From the rival submission of both the parties, the sole question falls for consideration in this appeal is whether the claimant suffered 100% loss of earning capacity because of the injury sustained in the accident? If not, what is the loss of earning suffered by him. 8. 7. From the rival submission of both the parties, the sole question falls for consideration in this appeal is whether the claimant suffered 100% loss of earning capacity because of the injury sustained in the accident? If not, what is the loss of earning suffered by him. 8. It is now settled position that while computing just and reasonable compensation in a claim under Section 166 of the Motor Vehicles Act, the Tribunal is not bound by the limit of the loss of earning capacity mentioned in the schedule of the Employees Compensation Act. What the tribunal is required to assess is the functional disability i.e. the impact of the injury on the earning capacity of the victim or in other words, to what extent profession or earning has been affected as a result of the injury. Therefore, necessarily extent of loss of earning may not always be the same or equal to the percentage of physical disability. It may differ depending on the facts and circumstances of each case. There may be cases where functional disabilities may be higher than the physical disability. There may be cases where functional disability may be lower than the physical disability. There may also be cases where physical disability may not involve functional disability at all. Therefore, the functional disability or the impact of the injury or physical disability on the earning capacity of the injured, is the real yardstick for determining the extent of loss of earning. 9. The Hon'ble Supreme Court in the case of G. Dhanasekar v. Managing Director, Metropolitan Transport Corporation Ltd reported in (2014) 14 SCC 391 while confronted with the issue of computing just compensation for the injured suffering disability due to injury, formulated the following question. Whether an accident victim is entitled to get compensation for functional disability? If so, what is the method for computation of compensation? The Apex Court answered the question as under. 3. In Rekha Jain Case, this Court following National Insurance Co. Ltd v. Mubasir Ahmed, developed a very important principle of functional disability while fixing the compensation. Rekha Jain, a cine artist suffered an injury in a motor accident at the age of 24 years on account of which she suffered 30% permanent partial disability which included disfigurement of her face, chance in the physical appearance, etc. Ltd v. Mubasir Ahmed, developed a very important principle of functional disability while fixing the compensation. Rekha Jain, a cine artist suffered an injury in a motor accident at the age of 24 years on account of which she suffered 30% permanent partial disability which included disfigurement of her face, chance in the physical appearance, etc. it was found that on account of such development, she could no more continue her avocation as an actress and, hence, it was held that she had suffered 100% functional disability. Hence, this Court awarded compensation following the principles laid down in Sarla Verma v. DTC. 4. As far as compensation for functional disability is concerned, it has to be borne in mind that the principle cannot be uniformly applied. It would depend on the impact caused by the injury on the victim's professional career. To what extent the career of the victim has been affected, thereby his regular income is reduced or dried up will depend on the facts and circumstances of each case. There may be even situations where the physical disability does not involve any functional disability at all. 10. Keeping in view the above principle, let me now turn to the factual matrix of the case. The claimant testifying himself as a witness deposed that he was a daily labourer and because of the loss of right thumb, he could not do work after the accident. He has also proved the disability certificate issued by the Social Welfare Department (exhibit-2) and medical certificate and prescription being exhibit-3(1) and 3(2) issued from the Civil Hospital. No doubt, the doctor was not examined in the instant case. However, the amputation of the right thumb of the claimant as a result of the injury has not been disputed. Therefore, non-examination of the doctor is of no consequence in the present case. The claimant further deposed that he used to get engagement for about 25 days in a month. He has not stated anything in his evidence as to what type of work he used to do as daily labourer. Since no evidence has been brought on record as to the nature of work the claimant was usually undertaking before the accident, it cannot be held merely on surmise and conjectures that because of loss of thumb he has suffered 100% loss of earning capacity or functional disability. Since no evidence has been brought on record as to the nature of work the claimant was usually undertaking before the accident, it cannot be held merely on surmise and conjectures that because of loss of thumb he has suffered 100% loss of earning capacity or functional disability. Be that as it may, it is not difficult to understand that day labourers are usually engaged for physical labour. Since the claimant was a daily labourer, taking into consideration the nature of job, usually any day labourer is supposed to perform, it is difficult to accept in absence of evidence, that due to loss of thumb, claimant has become totally incapable of earning anything. However, considering the injury i.e. loss of right thumb, it is not difficult to understand that loss of right thumb had significantly affected the efficiency of his right hand and thereby reduced the ability to undertake physical work, though, it might not have rendered the claimant totally disabled causing 100% functional disability. 11. The learned Tribunal while determining the compensation, though assumed 100% loss of earning, no reason has been assigned in the award as to why the loss of earning has been taken as 100%, where disability as per doctor's certificate was 40%. In absence of evidence as to the nature of job, the claimant was doing, there cannot be a presumption that claimant suffered 100% loss of earning capacity because of the injury suffered due to accident. Keeping in view the physical works usually undertaken by any daily labourer, it is not difficult to understand that because of the injury i.e. loss of thumb, claimants loss of earning capacity, could not be less than 50% and therefore, I am of the considered view that loss of earning capacity in the instant case due to the injury should be taken at least 50%. 12. The income of the claimant, his age as well as the multiplier adopted by the Tribunal are not in dispute. Thus, with the admitted income of Rs. 3,000/- per month, loss of earning being 50% because of the injury, total loss of income would come to (1500×12×17)=3,06,000. The claimant shall also be entitled some amount of non-pecuniary damages towards pain and suffering and loss of amenities in life due to disabilities. Thus the compensation to which the complaint would be entitled is computed as under: Loss of income Rs. The claimant shall also be entitled some amount of non-pecuniary damages towards pain and suffering and loss of amenities in life due to disabilities. Thus the compensation to which the complaint would be entitled is computed as under: Loss of income Rs. 3,06,000/- Pain and suffering Rs. 50,000/- Loss of amenities Rs. 70,000/- Total Rs. 4,06,000/- 13. The appellant, New India Assurance company Ltd., shall satisfy the award of Rs. 4,06,000/- (four lakhs six thousand) with interest @ 9% from the date of filing of the claim petition, by depositing the awarded amount with the M.A.C. Tribunal, Tezpur within 2 (two) months from this day of judgment and order. 14. The appeal is allowed with the modification as indicated above. 15. Send back the LCR.