ORDER 1. As both these appeals arise out of the same award dated 19.1.2007 passed by the III Additional Motor Accident Claims Tribunal, Bilaspur (hereinafter referred to as "Tribunal") in claim case No. 51/06, they are being disposed of by this common order. 2. Brief facts of the case are that on 23.4.2004 when the claimant was going to his workplace on his bicycle, he was dashed by a tractor-trolley bearing registration No. CG 11 ZC 2553 and CG 11 ZC 2554 respectively (hereinafter referred to as "offending vehicle"), which at the relevant time was being owned by non-applicant No. 2 Shyam Sunder Rathore, rashly and negligently driven by non-applicant No. 1 Bhuneshwar Sahu and duly insured with non-applicant No. 3 United India Insurance Co. Ltd. As a result thereof, the claimant sustained number of grievous injuries, including injuries on his right leg, private part, hip and hand. 3. A claim case was filed by the injured-claimant for compensation of Rs. 15.20 lacs, inter alia, pleading that at the time of accident he was working as helper with Prakash Sponge Iron, was earning Rs. 4,200/- per month, was aged about 25 years, on account of accident caused due to rash and negligent driving of the offending vehicle, he has suffered 40% permanent disability and therefore, is entitled for compensation as claimed. 4. The respondents/driver & owner of the offending vehicle filed their written statements and contested the case on the ground that the accident occurred when the claimant was forcibly trying to board the tractor-trolley and suddenly fell down and as such, there was no negligence on the part of the driver. The insurance company while contesting the case took a specific defence that it is the claimant who was responsible for the accident as he was riding his bicycle on the mid of the road and as such, he was contributory negligent in causing the accident. 5. However, by the impugned award the Tribunal has awarded a total compensation of Rs.1 lac, including Rs. 41,711 towards medical expenses, in favour of the claimant with interest @ 7½% p.a. from the date of filing of claim petition till realization. 6. M.A.C. No. 404/07 has been preferred by the claimant for enhancement of the award whereas M.A.C. N0. 505/07 has been preferred by the insurance company challenging the award on the point of liability. 7. 41,711 towards medical expenses, in favour of the claimant with interest @ 7½% p.a. from the date of filing of claim petition till realization. 6. M.A.C. No. 404/07 has been preferred by the claimant for enhancement of the award whereas M.A.C. N0. 505/07 has been preferred by the insurance company challenging the award on the point of liability. 7. M.A.C. No. 404/07 : Learned counsel for the appellant/claimant submits that the amount awarded by the Tribunal is very much on the lower side and is required to be enhanced suitably on the following grounds: (i) that while assessing compensation the Tribunal has completely ignored the fact that the injured has suffered 40% permanent disability vide Ex.P/138 - a certificate issued by the duly constituted board and thus, he is entitled for compensation under the head "loss of future earning due to permanent disability"; (ii) that under various heads like, pain & suffering, loss of earning during laid up period attendant, transportation, nutritional diet, loss of amenities, loss of expectation of life, future treatment etc. the Tribunal has not awarded any compensation; (iii) that from the photographs attached with the record at page No. 27, 28 & 29, it is apparent that the claimant is under catheter permanently and once permanent catheter is there, it can be held that in future the claimant would be deprived of reasonable enjoyments of his life, including his sexual life. 8. On the other hand, supporting the impugned award so far as it relates to quantum of compensation it has been argued on behalf of learned counsel for the insurance company that considering the social status of the claimant the injuries sustained by him and the fact that the claimant has utterly failed to prove his permanent disability as claimed, the compensation awarded by the Tribunal is just and proper and calls for no enhancement. However, he submits that the Tribunal was not justified in imposing penal interest. 9. However, he submits that the Tribunal was not justified in imposing penal interest. 9. M.A.C. No. 505/07 : Learned counsel for the insurance company has assailed the award on the point of liability for the following reasons : (i) that there is a delayed FIR and as such, presumption is against the claimant; (ii) that bicycle of the claimant has not been seized by the police; (iii) that the claimant himself is responsible for causing the accident as he was forcibly trying to board the tractor; (iv) that the claimant was contributory negligent for causing the accident; (v) that the driver of the offending vehicle was not having a valid and effective driving licence on the date of accident. 10. Replying to the above arguments, it has been contended on behalf of the claimant that considering the grievousness of the injuries sustained by the claimant and his period of hospitalization i.e. about 22 months, delay in lodging FIR is of no help to the insurance company. The insurance company has not adduced any evidence in support of its pleading that driver of the offending vehicle was not having a valid and effective driving licence and likewise on the point of contributory negligence also no evidence has been adduced by it. He submits that in the written statement the insurance company has taken a specific defence that the accident occurred on account of claimant riding the bicycle on the mid of the road and thus, it can not take a defence contrary to its pleading that the accident occurred while the claimant was forcibly trying to board the tractor. 11. So far as appeal (MAC. No. 505/07) preferred by the insurance company is concerned, though the insurance company has not led any evidence nor has filed proper written statement, but surprisingly arguments have been advanced contrary to its pleadings and evidence. In the written statement, it has been specifically pleaded by the insurance company that the accident occurred when the claimant was riding his bicycle on the mid of the road. It has not taken any such defence that the claimant suffered injuries while he was forcibly trying to board the tractor. If some defence has been taken by the driver and owner, the same is not available to the insurance company unless specifically pleaded and proved by it. It has not taken any such defence that the claimant suffered injuries while he was forcibly trying to board the tractor. If some defence has been taken by the driver and owner, the same is not available to the insurance company unless specifically pleaded and proved by it. Moreover, in the present case, the defence of the insurance company is entirely different from that of owner and driver of the offending vehicle. Thus the onus lies on the insurance company to prove its case by not only specifically pleading but by adducing proper evidence in support thereof. The insurance company has not bothered to examine any witness to substantiate its pleading. Most importantly, if cross-examination of the witnesses on behalf of the insurance company is seen, it is apparent that no attempt was made by the insurance company to prove that the claimant was forcibly trying to board the tractor. The tenor of the cross-examination makes it clear that from the very beginning defence of the insurance company is that the claimant was negligent in causing the accident. Likewise no evidence has been adduced by the insurance company in support of its pleading that driver was not having a valid and effective driving licence. In fact, whatever has been argued before this Court on behalf of the insurance company has not been specifically pleaded and proved by it. 12. So far as order of the Tribunal imposing penal interest @ 8% is concerned, in view of the judgment of the Apex Court in the matter of National Insurance Co. Ltd. Vs. Keshav Bahadur and others (2004)2 SCC 370 , the imposition of penal interest, as has been done by the Tribunal, can not be allowed to stand and the same is hereby set aside. 13. As regards appeal (M.A.C. No. 404/07) preferred by the claimant, in his statement, the claimant has categorically stated that on the date of accident when he was going on his bicycle on the correct side of the road, he was dashed by the offending vehicle which was rashly and negligently driven by its driver. He has further stated that after being hit, he fell down on the road and wheel of the tractor ran over him, as a result of which he sustained number of injuries on his hip, thigh and private part, including fracture. He has further stated that after being hit, he fell down on the road and wheel of the tractor ran over him, as a result of which he sustained number of injuries on his hip, thigh and private part, including fracture. He was immediately taken to Mission Hospital where he remained for about 15 days and thereafter, was taken to other hospital at Champa and there also he was hospitalized for about two months. He has further stated that since last two years he is taking treatment at Govt. Medical College, Bilaspur, during this period he has been operated four about 6-7 times and a permanent catheter has been put, and at the time of recording his statement this fact was also noticed by the Tribunal. He has also stated that he has suffered permanent disability, has been removed from the job and is not doing anything. 14. The permanent disability certificate filed and proved by the claimant is Ex.P/138, according to which he has suffered 40% permanent disability. Dr. S.S. Bhatia (AW-2), a member of the Medical Board, who had issued the permanent disability certificate, while supporting the case of the claimant has stated that in the accident the claimant has suffered fracture of femur bone; on account of accident head of his femur bone has dried up and there is shortening of his right leg by 2½ inch. He has further stated that due to accident, claimant's right hip joint has got unstable as a result of which his movements have also been affected and his permanent disability is 40%. He has further stated that even if a rod is inserted by again operating the claimant, then also his permanent disability would remain at least 30%. 15. As per certificate Ex.P/138, the claimant has suffered permanent disability to the extent of 40%. Some of the photographs attached to the record at page No. 27 to 29 goes to show number of injuries on the private part of the claimant and the fact that he has been permanently catheterized. Thus, considering the totality of the case, the pleadings and evidence on record, it can safely be held that on account of the accident, the claimant has suffered 40% permanent disability. 16. According to the claimant, at the relevant time he was earning Rs. 4,200/-. Thus, considering the totality of the case, the pleadings and evidence on record, it can safely be held that on account of the accident, the claimant has suffered 40% permanent disability. 16. According to the claimant, at the relevant time he was earning Rs. 4,200/-. However, the claimant has not proved his income as pleaded by adducing any evidence in the form of pay-slip or certificate. Thus considering the fact that he was working as helper with some private firm, in the absence of any legally admissible evidence with regard to income, his income can safely be assessed as Rs. 3000/- per month on notional basis, which comes to Rs. 36,000/- per year. As the claimant has suffered 40% permanent disability, therefore, his annual loss of income comes to Rs. 14,400. Considering the age of the claimant, the appropriate multiplier would be 18. After applying this multiplier, the total loss of future earning due to permanent disability comes to Rs.2,59,200/-. 17. As regards medical expenses, the Tribunal has awarded Rs. 41,711/- towards this head, which considering the documents and evidence available on record seems to be just and proper and is, therefore, hereby maintained. In addition to this, the claimant is also entitled for suitable compensation under other heads, such as pain and suffering; transportation/traveling expenses as he had to go from Janjgir-Champa to Bilaspur on number of occasions for his treatment; future treatment; nutritional diet; attendant; loss of expectation of life; loss of amenities and discomfort as he at the age of 25, years has been permanently catheterized as well as for loss of income during the period of treatment, which is about 22 months. Thus, the claimant is entitled for compensation under the other conventional heads in the following manner: (i) Pain & suffering : Rs. 50,000/- (ii) Transportation : Rs. 25,000/- (iii) Future medical expenses : Rs. 25,000/- (iv) Nutritional diet : Rs. 25,000/- (v) Attendant : Rs. 15,000/- (vi) Loss of expectation of life : Rs. 25,000/- (vii) Loss of amenities and discomfort : Rs.75,000/- (viii) Loss of income during treatment (for 22 months @ Rs.3,00/- p.m.) : Rs.66,000/- Total : Rs. 3,06,000/- 18. In view of what has been discussed above, the appellant/claimant is held entitled for compensation of Rs. 6,06,911/- (Rs. 2,59,200/- + Rs.3,06,000/- + Rs. 41,711/-) and since the Tribunal has already awarded Rs. 3,06,000/- 18. In view of what has been discussed above, the appellant/claimant is held entitled for compensation of Rs. 6,06,911/- (Rs. 2,59,200/- + Rs.3,06,000/- + Rs. 41,711/-) and since the Tribunal has already awarded Rs. 1 lac, after deducting the same the appellant is entitled for enhancement of Rs. 5,06,911/- with interest @ 6% p.a. from the date of filing of claim petition till realization. 19. With the aforesaid modification in the impugned award, both the appeals (M.A.C. Nos. 404/07 & 505/07) stand disposed of. Appeal Partly Allowed.