JUDGMENT AND ORDER : 1. Both these appeals being Mac.App. No. 29 of 2014 [ The National Insurance Company Ltd. v. Sri Goutam Debnath & Others] and MAC.App. No. 57 of 2014 [ United India Insurance Co. Ltd. v. Sri Goutam Debnath & Others] are clustered for disposal by a common judgment as those appeals arise from the judgment and award dated 23.07.2012, delivered in T. S. (MAC).No. 418 of 2011. By the said judgment and award, which is under challenge in these appeals, the appellants have been directed by the tribunal to pay 50% of the awarded sum each to the respondent No. 1. 2. Heard Mr. P. Gautam, learned counsel as well as Mr. S. D. Choudhury, learned counsel appearing for the appellant insurer. Also heard Ms. S. Deb Gupta and Mr. A. Das, learned counsel appearing for the respondents. 3. The fundamental question that has been raised in these appeals is that whether the determination of income of the injured, the respondent No. 1 is supported by cogent evidence or not? Ancillary to that, another question has been urged on determination of the functional disability without any expert or without any medical evidence containing opinion. 4. However, there is hardly any discontent in this stage as regards the accident that occurred on 12.03.2011 at about 10.00 am nearby Totabari High School on Teliamura-Khowai road for the head on collision of the vehicles being Delivery Van bearing registration No. TR-01-P1816 and the bus bearing registration No. TR-01-1381 in which the respondent No. 1, the claimant was traveling with his goods and for the rash and negligent driving of both the vehicles the claimant-respondent received multiple grievous injuries. 5. Finally, the injured, the respondent No. 1, was assessed to have suffered 60% permanent disablement. By filing a claim petition under Section 166 of the MV. Act, being T.S (MAC). No. 418 of 2011, the respondent No. 1, claimed his monthly income at Rs. 15,000/- at the relevant point of time and urged for compensation of Rs. 35,00000/- as on various accounts. These are not in dispute that on 12.03.2011 the claimant respondent was admitted in the GBP Hospital and by surgical interventions on his right leg 2 still plates were fixed one on his right femur bone and another on tibia. 6. On 25.05.2011, he was again operated as the femur bone and tibia bone were mal-united. These are not in dispute that on 12.03.2011 the claimant respondent was admitted in the GBP Hospital and by surgical interventions on his right leg 2 still plates were fixed one on his right femur bone and another on tibia. 6. On 25.05.2011, he was again operated as the femur bone and tibia bone were mal-united. For the third time, the respondent No. 1 was admitted in the GBP Hospital as again it was found by the doctor that he was suffering from non-united fracture of right tibia [lower 3rd] and comminute fracture of right femur [lower 3rd] shaft. Fourth time he was operated by which ORIF with bone grafting and plating was done for right tibia and fixed with eternal fixtures in his right leg. When he filed the claim-petition he was still under medical intervention. 7. Finally, it was assessed that he has suffered Locomotor disability and shortening of leg and thus, he was assessed to be permanently disabled by 60%. The accident has been investigated by the police in connection with Kalyanpur P.S. Case No. 27 of 2011 under Sections 279/338 of the IPC. 8. Mr. P. Gautam, learned counsel appearing for the appellant has submitted that there is no evidence on income of the respondent No. 1. Whatever he has given is oral evidence which does not provide any evidentiary foundation to arrive at a definite finding in respect of income. Moreover, while he was making his submission on loss of earning capacity or for that matter, the degree of functional disability, he has quite emphatically submitted that the tribunal has on surmise determined that the respondent No. 1 has lost 95% of earning capacity though the respondent No. 1, the claimant was assessed to have suffered 60% permanent disability. 9. In this regard he has relied on a decision of the Apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed and Another, reported in (2007) 2 SCC 349 , where the Apex Court has observed as under: “Loss of earning capacity is not a substitute for percentage of the physical disablement. It is one of the factors taken into account to determining the functional disablement by aid of competent doctor who has training of determination of such loss of earning capacity of taking relevant factors in consideration, is essentially require”. 10. Mr. It is one of the factors taken into account to determining the functional disablement by aid of competent doctor who has training of determination of such loss of earning capacity of taking relevant factors in consideration, is essentially require”. 10. Mr. Gautam, learned counsel has also referred another decision of the Apex Court in Oriental Insurance Company Limited v. Mohd. Nasir and Another, reported in (2009) 6 SCC 280 . In that case, for 15% physical disability loss of earning capacity was assessed at 100%. In such background the Apex Court has decided that loss of earning capacity can only be determined on considering the various factors including loss of limb as the functional disability has relativity with loss of limb. 11. In Mohd. Nasir(supra), the Apex Court has restated the principle as laid down in Mubasir Ahmed (supra). Mr. Gautam, learned counsel has submitted that the tribunal in this case has determined the loss of earning capacity without aid of the expert as espoused by the Apex Court. Even reasons for such determination are not available in the impugned judgment. 12. Mr. S. D. Choudhury, learned counsel appearing for the appellant in MAC. App. No. 57 of 2014[United India Insurance Co. Ltd., the insurer of Delivery Van bearing No. TR- 01-P1816] has adopted the submission of Mr. P. Gautam learned counsel and urged for re-determination of just compensation under Section 168 of the MV. Act. 13. Ms. S. Deb Gupta, learned counsel appearing for the claimant-respondent No. 1 in both the appeals, has submitted that the tribunal is not prohibited from determining the loss of earning capacity on the basis of the medical reports as produced. She has submitted that the District Disability Medical Board has assessed the disability of the respondent No. 1 at 60%. It has not been disputed by the appellants that the respondent No. 1 was carrying on the business of decoration and furnishing and for the disability that he has suffered he would not be able to carry on the said business at all. 14. Ms. Deb Gupta, learned counsel has referred to the testimonies of the claimant-respondent No. 1, where he has stated that he had lost 100% working capacity as he cannot stand on his feet without support and incapable of doing the work of decorator which he used to do prior to the accident. 14. Ms. Deb Gupta, learned counsel has referred to the testimonies of the claimant-respondent No. 1, where he has stated that he had lost 100% working capacity as he cannot stand on his feet without support and incapable of doing the work of decorator which he used to do prior to the accident. She has further stated that he is unable to do any manual work. As such, he has become 100% disabled so far functionality is concerned. 15. No cross-examination against such statement of the claimant has been carried out. Thereafter, Ms. Deb Gupta, learned counsel has contended that the claimant-respondent No. 1 was carrying goods owned by him in a goods vehicle. Hence, he is entitled to realize the damages from the appellant. 16. In Ramesh Kumar v. National Insurance Co. Ltd. And Others, reported in (2001) ACJ 1565 as relied by Ms. Deb Gupta, learned counsel, the Apex Court has held thus: “8. Thus this category of cases are also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorized representative, the insurance company is liable to pay the compensation. Any compensation or part of it not paid shall be paid to the claimant by the insurance company within eight weeks of this order. Any such amount withdrawn by the claimant which was deposited by the Insurance Company on furnishing security, such security stands discharged”. 17. Reliance has further been placed for the claimant respondent No. 1 on Syed Sadiq and Others v. Divisional Manager, United India Insurance Co. Ltd., reported in 2014 ACJ 627 , where the Apex Court has held as under: “9. There is no reason, in the instant case for the Tribunal and the High Court to ask for evidence of monthly income of the Appellant/claimant. On the other hand, going by the present state of economy and the rising prices in agricultural products, we are inclined to believe that a vegetable vendor is reasonably capable of earning Rs. 6,500/- per month.” 18. Ms. Deb Gupta, learned counsel has based on the said principle has suggested that the tribunals are not precluded to come to their inference or conclusion in respect of income even when no documentary proof is laid for the claimant. 6,500/- per month.” 18. Ms. Deb Gupta, learned counsel has based on the said principle has suggested that the tribunals are not precluded to come to their inference or conclusion in respect of income even when no documentary proof is laid for the claimant. On assessment on the materials, other than the documentary one, the tribunal may come to a logical inference in respect of income. 19. Finally, Ms. Deb Gupta, learned counsel has relied on a decision of the Apex Court in Kavita v. Deepak and Others, reported in 2012 ACJ 2161 , where the Apex Court has held as under: “13. We have considered the respective submission. In R.D. Hattangadi v. Pest Control (India) Private Limited: (1995) 1 SCC 551 , this Court observed that the exercise for determination of compensation in accident cases involve some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability. But these elements are required to be considered in an objective manner. In that case, the claimant was a retired judge and practicing when he met with an accident that caused 100% disability and paraplegia below the waist. While determining compensation payable to him in a claim filed under Section, Motor Vehicles Act, 1939, this Court referred to the judgment of the Court of Appeal in Ward v. James, Halsbury's Laws of England, 4th Edition, Volume 12 (page 446) and observed: When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration." 9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment frustration and mental stress in life. 10. In cannot be disputed that because of the accident the Appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the Appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the Appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. 14. In Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Anr.: (2010) 10 SCC 254 , the Court sought to assess future earnings of a final year engineering student who received injuries to the brain among others which resulted in 70% permanent disability and he needed a helper throughout his life. The Court observed: We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The Court observed: We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. [Emphasis supplied] 15. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka: (2009) 6 SCC 1 , this Court was called upon to assess the compensation payable under the Consumer Protection Act, 1986 to the victim of medical negligence who was left completely paralyzed at the age of 20. After detailed examination of the issue, the Court observed as under: 39. We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself. 16. In Raj Kumar v. Ajay Kumar: (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the following propositions: The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitallisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Limited: (2011) 13 SCC 236 , the Court observed: 8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. 17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Limited: (2011) 13 SCC 236 , the Court observed: 8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. 9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case. 18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses. [Emphasis added] 20. Ms. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses. [Emphasis added] 20. Ms. Deb Gupta, learned counsel has added to her final statement that the monthly income as determined by the tribunal is in the lower side. A decorator by profession can easily earn a sum of Rs. 12,000/- per month as claimed by the claimant respondent No. 1. However, the tribunal has determined the monthly income at Rs. 6,000/- per month comparing his profession to that of a labourer and according to the wage index. But the claimant-respondent has not projected any grievance against such determination by filing an appeal or cross-objection. 21. This Court has scrutinized the relevant records on evidence as well as the depositions of the witnesses and thus finds that truly there is no documentary evidence relating to the income of the claimant-respondent No. 1, but this Court does not find any irrationality or presence of surmise in determining the monthly income of the claimant-respondent No. 1 and as such, this Court is not inclined to interfere with the rate of monthly income as has been assessed or determined by the tribunal. 22. The only question according to this Court requires some deliberations is whether the tribunal was right in considering the loss of earning capacity at 95% when there was no medical evidence at all. 23. In Raj Kumar v. Ajay Kumar and Another reported in 2011 ACJ 1 , the Apex Court had the occasion to propose some general principle relating to compensation in injury cases. Justice Raveendran in his imitable style has observed that the Motor Vehicles Act makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. Pecuniary damages according to Ajoy Kumar (supra) would be assessed on the following heads: (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not beenb injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses on account of Non pecuniary damages (General Damages) The person who suffered injuries and disability would be entitled to the compensation on the following heads:n (a) Damages for pain, suffering and trauma as a consequence of the injuries. (b) Loss of amenities (and/or loss of prospects of marriage). (c) Loss of expectation of life (shortening of normal longevity). 24. In Ajoy Kumar (supra) it has been also observed as under: “In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) - - depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case.” Assessment of future loss of earnings due to permanent disability 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 could 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). 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% of the left lower limb, it is not the same as 45% 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 be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 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% as the permanent disability, will hold that there is 45% loss of future earning capacity. 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% as the permanent disability, will hold that there is 45% 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 permanently 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 interns 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 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, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.: 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd.: 2010 (8) SCALE 567 . 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 the 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. 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. 10. 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 (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. 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 percent, 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. Sometimes the injured claimant may be continued in service, but may not 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% (or even anything more than 50%), 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. 11. 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 and169 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 enquiry 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 the 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 the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first 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 the percentage of permanent disability is stated with reference to a limb, the 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. 12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 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. 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 examined 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 reference 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.” [Emphasis added] 25. In this case, no medical expert appeared in the tribunal to aid the tribunal to determine the functional disability. However, the medical records have been admitted in the evidence. However, the tribunal has assessed the loss of earning as 95% and as stated by the learned counsel for the appellants, such assessment is visited by absence of adequate reasoning. 26. For such case, this Court would had remanded the case for recording further evidence and come to a finding as to the functional disability by aid of expert evidence. However, since the claimant-respondent No. 1 has suffered the accident on 12.03.2011, this Court does not find it to be appropriate to remand the matter back to the tribunal. 27. Having due regard to the injuries and assessing the disability of permanent nature and its adverse impact on the occupation of the claimant-respondent No. 1, this Court is unable to accept that the respondent No. 1 has lost 95% of the earning capacity. Taking a liberal view, this Court is of the opinion that the claimant-respondent No. 1 has suffered 60% of the loss of earning inasmuch as, he would not be able to contribute his own labour and mobility to his business. Taking a liberal view, this Court is of the opinion that the claimant-respondent No. 1 has suffered 60% of the loss of earning inasmuch as, he would not be able to contribute his own labour and mobility to his business. Taking that component into the consideration the said loss has been assessed by this Court. 28. Having regard to the decision in Syed Sadiq (supra) it is further held that the claimant-respondent No. 1 is entitled to 30% more on account of loss of future prospects. The principle enunciated in Syed Sadiq even though is the basis of Santosh Devi v. National Insurance Company Ltd. And Others reported in 2012 ACJ 1428 , but this principle has been so applied by the Apex Court on considering the nature and extent of disability. 29. Having held so, this Court would now proceed to recalculate the damage both pecuniary and special in the following manner: Income of the claimant-respondent No. 1 Rs. 6,000/- per month. After adding 30% of the said income as the loss of future prospect of income. Thus, the monthly index comes to Rs. 7,800/- per month. Annual income index: 12 x 7,800/- = 93,600/-. Multiplier 16 be added to have the projected income Rs. 14,88,000/-. For functional disability of 60% compensation would be Rs. 8,92,800/-. 30. The claimant-respondent No. 1is also entitled to Rs. 42,074/- as the cost of medicines and other charges, Rs. 72,000/- towards loss of income during the treatment, miscellaneous expenses for other Rs. 20,000/- Rs. 1,00000/- for pain and suffering and another sum of Rs. 1,0000/- for loss of amenities of life for the said accident. Thus, the total award is Rs. 12,26,874/-. The said amount shall carry interest @ 9% from the date of institution of the claim petition i.e. 31.10.2011 till the payment is made. 31. The penal interest as awarded by the impugned judgment and award is interfered with and set aside as within the authority of Section 171 of the Motor Vehicle Act., no penal interest can be awarded by the tribunal, accordingly, it is set aside. Out of the total compensation 50% along with interest shall be paid by each of the appellants. 32. The award shall be paid within a period of 2(two) months from today in the tribunal. On deducting the amount, if any already paid. 33. Out of the total compensation 50% along with interest shall be paid by each of the appellants. 32. The award shall be paid within a period of 2(two) months from today in the tribunal. On deducting the amount, if any already paid. 33. It appears from the record that the appellant United India Insurance Company Ltd., has already paid Rs. 8,89,809/- by two cheques. Similarly, the appellant, the National Insurance Company Ltd., has also deposited Rs. 8,12,641. 34. If the appellants are liable to pay any amount, they shall pay the same within the stipulated period of 2(two) months from today in the tribunal. Filing of further application would not be required 35. The respondent No. 1, the claimant, shall be entitled to get 50% of the total deposited amount from the registry on proper identification and the remaining 50% shall be maintained in a termed deposit of 5 years. For this, the respondent No. 1, the claimant, shall be at liberty to approach the tribunal, if he is compelled by the circumstances to draw some more money from such fixed deposits. In such event, the tribunal after due consideration shall make the appropriate order. With these observations and direction, the appeals are partly allowed to the extent as indicated above. There shall be no order as to costs. Copies of the judgment be supplied to the learned counsel appearing for the parties.