JUDGMENT Hon’ble Amitava Lala, J.—This appeal has been preferred by the Insurance Co. challenging the judgment and order passed by the concerned Motor Accident Claims Tribunal dated 4th February, 2008 awarding a compensation of Rs. 2,00,400/- on account of 40% disablement and/or loss of earning capacity of the injured. Out of the total awarded amount of Rs. 2,00,400/- a sum of Rs. 66,000/- is arising out of medical treatment and mental shock and pain. The real dispute was in respect of Rs. 1,34,400/- although belatedly learned Counsel appearing for the Insurance Company contended before this Court that on account of shock and pain there should be a fixed amount of compensation of Rs. 5,000/- as per the Second Schedule of the Motor Vehicles Act under Section 163-A of the Motor Vehicles Act, 1988. 2. However, the decision of the Tribunal is based on a medical certificate given by the concerned Medical Board headed by Chief Medical Officer fixing disability of 40%. The claimant adduced his evidence about his injury on the head as well as on the leg and ultimately said before this Court that he had to stay in the hospital for 17-20 days due to the injury which was grave in nature particularly on his leg so he cannot be move properly. He is walking with the help of stick. From the deposition we further find that he was a rickshaw puller. 3. In the appeal the Insurance Company, it has taken a plea that the disability certificate given by the Medical Board is contained disability of 40%. Such disability neither speaks it is partial disablement nor permanent disablement. That apart loss of earning capacity and disablement are altogether different in nature. Doctor should have been called to examine the nature of injury. He relied upon a Supreme Court judgment reported in 2005(12) SCC 189, A.P. S.R.T.C. v. P. Thirupal Reddy to establish that the Doctor was examined for the purpose of fixation of liability. He also said on the basis of Supreme Court judgment reported in 2007(2) T.A.C. 3 (SC), National Insurance Co. Ltd. v. Mubasir Ahmed and another, that loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors, which can be taken into account. He also said on the basis of Supreme Court judgment reported in 2007(2) T.A.C. 3 (SC), National Insurance Co. Ltd. v. Mubasir Ahmed and another, that loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors, which can be taken into account. However the Supreme Court came to a conclusion in the judgment that since no basis was indicated in support of conclusion the same cannot be maintained. 4. According to us there is a fallacy in the argument of the appellant. The disablement certificate issued by the Medical Board of a Government Medical College is a public document. Therefore, the submission on behalf of the appellant Insurance Company that the concerned doctor was not examined to prove the document cannot be said to be acceptable proposition as alleged or at all. Disablement of 40% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate Court of law. The injured has given a detailed evidence about his nature of injury and loss of earning capacity to which we do not find any nature of rebuttal or denial to establish the cause of the Insurance Company. No independent witness was called upon to examine on their part. It is not the obligation of the Court to confront the oral evidence on the part of claimant suo moto but at the instance of the Insurance Company who were defending the cause. It is to be remembered that principle of civil Court is to be followed. Development of the case at the stage of first appeal cannot be an excuse for not proving the case by the Insurance Company in the Tribunal. Therefore, the benefit will be given to the beneficiaries following the Maxim porior est conditio possidenties meaning thereby possessor’s condition is better. 5. So far as the amount of Rs. Development of the case at the stage of first appeal cannot be an excuse for not proving the case by the Insurance Company in the Tribunal. Therefore, the benefit will be given to the beneficiaries following the Maxim porior est conditio possidenties meaning thereby possessor’s condition is better. 5. So far as the amount of Rs. 20,000/- is concerned for shock and pain, the same is solatium by its nature which the Court can grant on the basis of the available case particularly when the claim petition has been filed under Section 166 of the Act to arrive at “just” compensation unlike the cases under Section 163-A of the Act where there is no necessity on the part of the claimant to prove any wrongful act or neglect or default on the part of the owner or Insurance Company. The only requirement of this Court is to see whether arriving at “just” compensation by the Tribunal is absurd in nature or not. This is not such a case hereunder. 6. Therefore, we are not keen into admit the appeal having no cogent ground. The appeal is dismissed, however, without imposing any cost. 7. Incidentally, the appellant-Insurance Company prayed that the statutory deposit of Rs. 25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust the same with the amount of compensation to be paid to the claimants, however, such prayer is allowed. Hon’ble Shishir Kumar, J.—I agree. ————