JUDGEMENT Dev Darshan Sud, J (oral) The appellant-claimant has preferred this appeal against the award of learned Motor Accident Claims Tribunal praying for enhancement of compensation, which was awarded to her for the injuries sustained by her in the accident caused by rash and negligent acts of the driver of bus No. HP-33-3918 owned by the Himachal Road Transport Corporation (HRTC). 2. The facts necessary for adjudication in this appeal are that the claimant who is a housewife was aged about 56 years. She was travelling with her husband in the maruti car owned by him from Shimla to the native village of her husband at Pathan. At around 4.15 PM on 17th October, 2003, when the car was negotiating a curve near Dagsech Sarak on Shimla-Bilaspur road, the offending bus came at a high speed from the opposite side and struck against the car. The husband of the claimant tried to save them, but because of the rash and negligent manner in which the bus was being driven he could not avert the accident and the bus rammed into the car. Both husband and wife suffered injuries. First Information Report was lodged in Police Station, Barmana. 3. The claimant claimed ‘ 5 lacs as damages on various counts. It is submitted that she was treated at Government Hospital, Bilaspur, Indus Hospital, Shimla where she remained hospitalized from 17/18.10.2003 to 27.10.2003, thereafter at Shanti Mukand Hospital, Delhi from 26.1.2004 to 31.1.2004. She stated that she was still undergoing medical treatment. ‘ 2 lacs were claimed by her on account of medicines, hospitalization charges and consultation fee etc., ‘ 25,000/- on account of special diet, ‘ 50,000/- on account of transportation charges for going to various hospitals for treatment and follow up and ‘50,000/- on account of boarding and lodging charges at Delhi. 4. The petition was contested by the respondents on a number of grounds including the fact that the income of the claimant could not be ‘ 2000/- per month. 5. Two issues were settled by the learned Tribunal. The first related to the fact as to whether the accident was the result of rash and negligent driving of the driver of the bus and secondly the quantum of damages. 5. Two issues were settled by the learned Tribunal. The first related to the fact as to whether the accident was the result of rash and negligent driving of the driver of the bus and secondly the quantum of damages. On both issues, the Tribunal held in favour of the claimant and awarded a sum of ‘ 1,20,000/- under the following heads: i) Medical expenses &‘ 80,000/- Expenses of future Treatment ii)Transportation Expenses ‘ 10,000/- iii)Attendants expenses‘ 5,000/- iv)Special diet & nutrition‘ 5,000/- v)Pain and suffering ‘ 10,000/- vi)Loss of amenities of life‘ 10,000/- vii)Actual loss of income Nil viii) Estimated future loss of Income Nil ‘ 1,20,000 6. Learned counsel appearing for the appellant submits that the amount of compensation awarded to the claimant is meager and is not commensurate with the injuries suffered by the claimant and the future loss/incapacity of the claimant to perform her household duties which has been corroborated by none other but by Dr. Ravinder Mokta, PW8 who proved on record the disability certificate Ext.PW4/A. He submits that the Tribunal is not correct in awarding ‘ 10,000/- on account of pain and suffering and totally ignored the fact that the claimant was entitled to the damages for incapacity to perform any household work after the accident. 7. Learned counsel appearing for the respondents submits that no compensation under the head of pain and suffering could be awarded to the claimant as urged by the learned counsel appearing for the appellant for the reason that PW8 Dr. Mokta himself admits in cross examination that the earning capacity of the appellant has not been impaired and there is no evidence of the loss of income by the appellant. In these circumstances, appeal requires to be dismissed. 8. Reliance has been placed by the appellant on anumber of decisions of the Supreme Court. In support of his contention that the datum figure of loss of contribution by a housewife should and ought to be ‘ 3000/- per month, learned counsel appearing for the appellant places reliance on the decision of the Supreme Court in Lata Wadhwa and others vs. State of Bihar and others, AIR 2001 SC 3218 holding that: “10 It is true that the claimants, who ought to have given dates for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration, the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs. 3000/- per month and Rs. 36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be re-calculated, taking the value of services rendered per annum to be Rs. 36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs. 50,000/- instead of Rs. 25,000/- given under the report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs. 10,000/- per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the value of services rendered at Rs. 10,000/- per annum, cannot be held to be just and, we therefore, enhance the same to Rs. 20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs. 20,000/- per annum and then after applying the multiplier, as already applied and thereafteradding Rs. 50,000/- towards the conventional figure.” (at p.3225) This decision has been subsequently re-affirmed in Arun Kumar Agrawal and another vs. National Insuance Company Limited and others, (2010)9 SCC 218 in which, Hon’ble Justice A.K. Ganguly holds that the figure at ‘ 3000/- cannot be accepted, but must be at least ‘5000/- per month. 9. Learned counsel also reiterates his submission by urging that in Laxman alias Laxman Mourya vs. Divisional Manager, Oriental Insurance Company Limited and another (2011)10 SCC 756 the Supreme Court has laid down the guiding principles for assessing non-pecuniary damages. In particular, he places reliance on: “15. The ratio of the abovenoted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earning and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. 16. 16. In the light of the above, we shall now consider whether the compensation awarded to the appellant is just or he is entitled to enhanced compensation under any of the following heads: (i)Loss of earning and other gains due to the accident. (ii)Loss of future earning on account of the disability. (iii)Expenses for future treatment.(iv) Compensation for pain, suffering and trauma caused due to the accident.(v)Loss of amenities including loss of the prospects of marriage.(vi)Loss of expectation of life. 17. In the affidavit filed by him before the Tribunal, the appellant categorically stated that due to accident he had suffered injuries on the abdomen and other parts of the body; that he was shifted to Bowring and Lady Curzon Hospital, where he remained for 15 days; that thereafter, he went to his native place at Gorakhpur and remained admitted in Royal Hospital from 29-9-2003 to 10-10-2003; that he had also taken treatment at Sri Krishna Hospital and Urology Centre as indoor patient (in-patient) from 12-10-2003 to 13-10-2003 and that he had spent Rs. 40,000 towards medicines, conveyance and other charges. He further stated that due to the accident, he was finding it difficult to pass urine and was having severe pain in the lower part of the abdomen; that the doctors had advised him to undergo an operation to set right the problem but due to financial constraint he was not in a position to undergo the surgery. As regards his earning, the appellant gave out that at the time of accident, he was working as a Carpenter and was earning Rs. 5,000/- per month and that after the accident he was not in a position to work as carpenter.” (at pp.762-763) He submits that in this case, a sum of ‘ 1,50,000/- was granted for pain and suffering amongst other damages. 10.Learned counsel appearing for the respondent places reliance on the decision of the Supreme Court in Raj Kumar vs. Ajay Kumar, 2011 Raj Kumar vs. Ajay Kumar & another , 2011 ACJ 1 to urge that the principles are now well settled and in absence of any evidence on two counts as claimed by the appellant, no damages can be awarded. The Court holds:“6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. The Court holds:“6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he would perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (‘Disabilities Act’ for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.7. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45 per cent of the left lower limb, it is not the same as 45 percent permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to the extent of disability of the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to the extent of disability of the whole body. If there is 60 per cent permanent disability of the right hand and 80 per cent permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140 per cent (that is 80 per cent plus 60 per cent.) If different parts of the body have suffered different percentage of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100 per cent. 8. 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 per cent as the permanent disability, will hold that there is 45 per cent 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 permanent 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 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 the 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, Tribunal will adopt the said percentage for determination of compensation. (See for example the decision of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd., 2010 ACJ 2867 (SC) and Yadava Kumar v. Divisional Manager, National Insurance Co. Ltd., 2010 ACJ 2713 (SC)). 9. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. This means that Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 11. 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 the permanent ability (sic disability) (this is also relevant for awarding compensation under the head 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 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. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60 per cent. 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 per cent as in the case of a driver or carpenter, nor 60 per cent 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 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. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100 per cent (or even anything more than 50 per cent), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 12. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an inquiry into the claim for determining the just compensation. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ‘just compensation.’ While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, Tribunal will have to seek the doctor’s opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. 13. We may now summarise the principles discussed above: (i)All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii)The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii)The doctor who treated an injured-claimant or who examine him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with referent to the evidence in entirety. (iv)The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” (at pp. 5-9) 10.On the question of assessment of non-pecuniary damages, reliance has been placed on the decision of the judgment of the Andhra Pradesh High Court in P. Satyanarayan represented by his wife, P. Mahalakshmi vs. I. Babu Rajendra Prasad and another, 1988 ACJ 88 holding: “(a) Non-pecuniary losses for similar injuries-can be compared and reviewed: 19. Over a long course of years, courts have attributed- in a rough and ready fashion-a particular conventional amount for each particular type of injury. There is, no doubt, no special rationale about this quantum except that the more serious or severe injuries attract higher compensation-on a comparative basis. Over a long course of years, courts have attributed- in a rough and ready fashion-a particular conventional amount for each particular type of injury. There is, no doubt, no special rationale about this quantum except that the more serious or severe injuries attract higher compensation-on a comparative basis. After all, some compensation has to be paid for non-pecuniary losses, such as, loss of expectation of life, loss of amenities of life and for pain and suffering, both past and present. Today, the process of computation of damages for these non- pecuniary losses consists mainly in standardizing the amounts and in upgrading past awards, in keeping with inflation, to meet current values of money. That is how the principle of awarding conventional amounts on a comparative basis and in renewing them periodically to offset inflation has today become the principal process of computation of damages for non-pecuniary losses. In Bird v. Cooking & Sons Ltd., 1951(2) TLR 1260, Brikett, LJ explained this method as follows: “Although there is no fixed and unalterable standard, the courts have been making these assessments for many years, and I think they from some guide to the kind of figure which is appropriate....when, therefore, a particular matter comes for review, one of the questions is, how does this accord with the general run of assessment made over the years in comparable cases.” This method was approved in H.West & Son Ltd. V. Shephard, 1958-65 ACJ 504 (HL, England) and also by the Judicial Committee in Singh Toong Fong v. Omnibus Co. Ltd.,, 1964 (3) All ER 925. The word ‘conventional’ used by the higher courts does not mean that the amount is arbitrary but rather means that it is arrived at by general custom and agreement. It does not mean ‘token’ damages but means the ‘standard’ level of damages (Munkman, p. 21). It is a figure derived from experience and from awards in comparable cases. (at p. 96) This is the settled principle, which does not call for re examination. 10A.What has to be considered is as to whether in the facts and circumstances of the present case, the Tribunal was justified for denying the compensation to the claimant herein for loss of amenities and earning capacity. 11. It is undisputed that in the evidence of PW8 Dr. 10A.What has to be considered is as to whether in the facts and circumstances of the present case, the Tribunal was justified for denying the compensation to the claimant herein for loss of amenities and earning capacity. 11. It is undisputed that in the evidence of PW8 Dr. Mokta, he clearly states that “The petitioner will not be able to do the house hold work and lift the weight due to the disability.” This is fortified by cross examination, where he states: “It is incorrect to suggest that the disability will improve with the passage of time.” There is no doubt in my mind that the petitioner is permanently disability certificate Ext.PW8/A states that the petitioner suffers 40% disability. Some metal plates have been inserted in her shoulder and she has been rendered unfit for performing any household duty. Adverting to the decision of Lata Wadhwa’s case supra the income of a housewife has been assessed by the Supreme Court at ‘ 3000/- per month. In other words, the housewife would be deemed contributing the services which could be quantified roughly as ‘ 3000/- per month. I do not see any reason as to why the Tribunal did not adopt the ratio as laid down by the Supreme Court in Lata Wadhwa’s case. Such figure is to be increased at ‘3000/-. In these circumstances, I hold that the loss of amenities to the petitioner would be ‘ 3000/- per month, which comes to ‘12000/- per annum. Considering that she is aged about 56 years, the multiplier of 9 is to be applied. Therefore, she would be entitled for ‘ 1,29,600/- under this head. 12. Adverting to the question of pain and suffering, no hard and fast formula can be adopted as stated by the Supreme Court. But the claimant is permanently disabled to the extent of 40%, it would be reasonable in the fitness of things that a sum of ‘ 30,000/- be awarded under this Head. In other words, an additional sum of ‘ 20,000/-. Submission made by the learned counsel appearing for the appellant that decision of the Supreme Court in Laxman alias Laxman Mourya vs. Divisional Manager, Oriental Insurance Company Ltd. and another (2011)10 SCC 756 cannot be accepted because the nature of injuries suffered by the claimant therein cannot be compared with the injuries suffered by the claimant herein. This appeal is accordingly allowed. This appeal is accordingly allowed. The award passed by the learned Tribunal is modified accordingly. I direct that in addition to the award made by the learned Tribunal, the claimant herein shall be entitled to an additional sum of ‘ 1,29,600/- for loss of amenities and additional sum of ‘ 20,000/- for pain and suffering, in all a sum of ‘1,49,600/-. This amount shall carry interest at the rate awarded by the learned Tribunal from the date of award till its satisfaction. Appeal stands disposed of.