JUDGMENT & ORDER : 1. This appeal under Section 173, Motor Vehicles Act, 1988 (“the Act”), preferred by the United India Insurance Company Ltd. (“insurer”), is directed against the judgment dated 12-3-2013 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala in Title Suit (MAC) No. 508 of 2011 awarding a compensation of Rs.9,09,362/- together with interest @ 9%per annum from the date of the claim petition in favour of the respondent No. 1. 2. The facts giving rise to this appeal may be briefly noticed at the outset. The appellant is admittedly the insurer of the offending Bus bearing No. TR-03-1272. The case of the claimant-respondent is that on 27-8-2010 at about 3.15 PM, when he was proceeding from Nagerjala Bus Stand towards Mirza by riding in the said Bus, the Bus turned turtle at a place near Steel Bridge, West Mirza under Kakraban Police Station due to the rash and negligent driving by the driver of the Bus. In that accident, the claimant sustained serious injuries and was immediately taken to Tripua Sundari District Hospital, Udaipur and thence to G.B.P. Hospital, Agartala where he was admitted as indoor patient for treatment. He was operated upon on his right leg, but ultimately became disabled. The Medical Board of Agartala Medical College and G.B.P. Hospital accordingly issued a Disablement Certificate to the claimant showing him physically disabled to the extent of 40% without any like lihood of improvement and recommending re-assessment of his disability after a period of five years. The claimant claimed that he used to work as an Assistant to a Mason and earn Rs.9,000/- per month as salary. He, therefore, filed the claim petition. 3. The claim petition was contested by both the owner of the vehicle and the appellant-insurer by filing their respective written objections in which both denied the allegations of the claimant with respect to his age, his monthly income and his functional disability. The appellant was also allowed to the contest the claim petition under Section 170 of the Act on all the grounds available to the owner of the vehicle. On the pleadings of the parties, the Tribunal framed the following issues: 1. The appellant was also allowed to the contest the claim petition under Section 170 of the Act on all the grounds available to the owner of the vehicle. On the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the vehicle bearing registration No. TR-03-1271 (Bus) met an accident on 27-8-2010 at about 3.15 PM at West Mirza near Steel Bridge on Agartala to Garjee Mirza via Belonia road under Kakraban P.S. due to rash and negligent driving of the vehicle? 2. Whether the petitioner sustained injuries as a result of that accident? 3. Whether the petitioner is entitled to get any compensation and, if so, what shall be the reasonable amount? 4. Who shall make the payment of compensation, if any? The claimant examined himself as PW 1 to substantiate his claim, but no other witness was examined. Some documents were exhibited by him as Exbt.-1 series. No evidence was, however, adduced by the appellant-insurer or owner of the offending vehicle to resist the claim petition. The Tribunal, after conclusion of the trial, passed the impugned judgment in the manner indicated earlier. 4. Unfolding his submissions, Mr. P. Gautam, the learned counsel for the insurer, contends that the Tribunal has grossly erred in law in assessing the functional disability of the claimant to the extent of 100% when his physical disability was assessed at 40% by the Medical Board, more so, when there is absolutely no evidence to show that the claimant is no longer capable of carrying on his occupation after the accident. The learned counsel maintains that the Tribunal could not differentiate between physical disability and functional disability, the determination of the letter alone would be decisive in awarding his loss of earning capacity. It is also the contention of the learned counsel that there is absolutely no evidence to prove that the claimant used to work as an Assistant to a Mason or that he used to be in that capacity earning a sum of Rs.5,000/- per month; the findings of the learned Member in this behalf is perverse, and cannot be sustained in law. To buttress his submissions, the learned counsel relies on the decision of the Apex Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . To buttress his submissions, the learned counsel relies on the decision of the Apex Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343 . He, therefore, strenuously urges this Court to set aside the impugned judgment or reduce substantially the awarded amount in accordance with the principles laid down by the Apex Court that compensation cannot take the shape of a bonanza and should be just and proportionate to the functional disability actually suffered by the claimant. 5. Per contra, Mr. Samarjit Bhattacharjee, the learned counsel for the claimant, supports the impugned judgment and submits that the same does not suffer from any infirmity keeping in mind the disability sustained by the claimant, who has lost his capacity to earn after the accident. He further submits that the claimant, whose evidence could not be demolished by the appellant in the cross-examination, has successfully established his case that he has lost the capacity to earn any income as a result of the accident. He maintains that there is no merit in this appeal, which is liable to be dismissed. 6. In the instant case, no doctor was examined as a witness to prove the nature of injuries sustained and the alleged loss of earning capacity of the clamant. It is sometimes possible to determine the loss of earning capacity of a disabled person without the assistance of medical evidence, but the instant case is not one where such exercise is possible without medical evidence due to the nature of the disability suffered by the claimant as will be evident hereafter. Loss of earning capacity is not a substitute for percentage of physical disability. The question as to whether permanent disability will have an impact on the actual earning capacity of the claimant came up for consideration before the Apex Court in Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 . The Apex Court laid down there in the following propositions of law: “12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. The Apex Court laid down there in the following propositions of law: “12. 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. 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. 13. 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 disability (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. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. 14. 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 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% 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 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.” 7. In the instant case, the Tribunal, without examination of a medical expert, proceeded to hold that due to the shortening of the right leg of the claimant, no one would like to employ him anymore and accordingly assessed his functional disability to the extent of 100%. On what basis the Tribunal came to such conclusion is difficult to understand. The Apex Court had an occasion to consider this question relating to the relation between the shortening of leg and functional disability in National Insurance Co. Ltd. v. Mubashir Ahmed and another, (2007) 2 SCC 349 and held: 8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. Ltd. v. Mubashir Ahmed and another, (2007) 2 SCC 349 and held: 8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court’s order and restore that of the Commissioner, in view of the fact situation. Coming to the question of liability to pay interest, Section 4-A(3) deals with that question. The provision has been quoted above.” 8. In the instant case, the claimant was stated to be serving as an assistant of a Mason. The question to be determined is whether the shortening of his right leg has disabled him from earning any kind of livelihood, or, in spite of shortening of his right leg, he could still effectively carry on his employment as an assistant of a Mason or whether the shortening of his right leg has prevented or restricted him 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. Sufferance of fracture by itself resulting in shortening of leg to some extent does not come within the purview of the “permanent total disablement even under the Workmen’s Compensation Act, 1923”.-See Ramprasad Balmiki v. Anil Kumar Jain, (2008) 9 SCC 492 . If that is the case, whether it could be a case of permanent partial disability is the moot point and, if so, what should be his functional disability vis-à-vis loss of his earning capacity after the accident. In order to determine these questions, medical evidence shall have to be necessarily tendered. If that is the case, whether it could be a case of permanent partial disability is the moot point and, if so, what should be his functional disability vis-à-vis loss of his earning capacity after the accident. In order to determine these questions, medical evidence shall have to be necessarily tendered. As observed by the Apex Court in Raj Kumar case (supra), the Tribunal should not be a silent spectator when medical evidence and other evidence are tendered in regard to the extent of physical disability, permanent or temporary, total or partial and their effect, in particular, on the extent of his functional disability. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. It must not be overlooked that it is ultimately the responsibility to the Tribunal and, not of the lawyers, to assess a just compensation. 9. Statutory provisions, observed the Apex Court in State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484 , clearly indicate that the compensation must be “just: and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What should be a just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. Though by use of the expression “which appears to it to be just” a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. 10. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. 10. Without examining medical expert, the Tribunal, however, proceeded to hold that a major operation was done on the right leg of the claimant, which resulted in shortening of his leg thereby making him a disabled person; that due to shortening of his right leg, no one would engage him as assistant to Mason in future even though his physical disability was certified to be only to the extent of 40% and that considering the nature of his occupation prior to the accident, the percentage of his disability (functional disability?) would be 100%. According to the Tribunal, in these days, when even a daily labourer could easily earn Rs.4,000/- to Rs.5,000/- per month, he came to the conclusion that the claimant must have earned Rs.5,000/- per month before the accident. The Tribunal also found that the claimant was 43 years old on the date of the accident. By adopting a multiplier of 14 as in Sarla Verma and others v. DTC and another, 2009 ACJ 1298 , the Tribunal computed the loss of future earning at Rs.60,000x14 = Rs.8,40,000/-, to which it added Rs.30,000/- for pain and suffering, Rs.24,362/- towards medical expenses and Rs.15,000/- for loss of income for three months. Thus, the total compensation awarded by the Tribunal comes to Rs.9,09,362/-. 11. In my opinion, the Tribunal has overlooked the principles laid down by the Apex Court in the afore-cited decisions in arbitrarily awarding a compensation of Rs.9,09,362/- ; no tangible evidence was adduced in the course of trial to prove the functional disability of the claimant resulting from the physical disability of shortening of his right leg. No shred of evidence was produced to show that the claimant would no longer be able to continue as an assistant to a Mason except his self-serving statement. The question to be considered now is as to what course of action is open to this Court at this stage considering the fact that the accident occurred as early as 27-8-2010. Allowing the appeal and quashing the award is likely to do injustice to the claimant, who is the unfortunate victim of a vehicular accident. The question to be considered now is as to what course of action is open to this Court at this stage considering the fact that the accident occurred as early as 27-8-2010. Allowing the appeal and quashing the award is likely to do injustice to the claimant, who is the unfortunate victim of a vehicular accident. After giving my anxious consideration to the facts and circumstances of this case, I am of the view that it will be more expedient to remand the case to the Tribunal for fresh trial at the stage of examination of a medical expert and some other witnesses) to corroborate his evidence with respect to the extent of his functional disability as well as his income before the accident. Before summoning a medical expert, the Tribunal must keep in mind the following observations of the Apex Court in Raj Kumar case (supra): “22. We may in this context refer to the difficulties faced by the claimants in securing the presence of busy surgeons or treating doctors who treated them, for giving evidence. Most of them are reluctant to appear before the Tribunals for obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favourable. This forces the injured claimants to approach “professional” certificate givers whose evidence most of the time is found to be not satisfactory. “23. The Tribunals should realise that a busy surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the doctors to attend the Tribunal to give evidence. Many busy surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the doctors to attend the Tribunal to give evidence. The solution lies in recognising the valuable time of doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating doctors on commission, after ascertaining their convenient timings. Secondly, if the doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 a.m. or 11.00 a.m. and wait in the court hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that courts/Tribunals show concern for litigants and witnesses.” 12. For what has been stated in the foregoing, this appeal is disposed of with the following directions: (a) The impugned judgment dated 12-3-2013 is hereby set aside; (b) The case is remanded to the learned member, Motor Accident Claims Tribunal (Court No. 1), West Tripura, Agartala for fresh trial at the stage of examination of medical expert and other witnesses to substantiate the case of the claimant with respect to the extent of his functional disability vis-à-vis his physical disability and also the nature of his business and his monthly income thereon prior to the accident keeping in mind the decisions of the Apex Court cited above. (c) The Tribunal must take a pro-active role in the course of trial for just determination of the compensation payable to the claimant and, if necessary, by asking searching questions to the witnesses being examined; after all, the ultimate responsibility for arriving at just compensation lies upon him and not upon the counsel appearing for the parties. (c) The Tribunal must take a pro-active role in the course of trial for just determination of the compensation payable to the claimant and, if necessary, by asking searching questions to the witnesses being examined; after all, the ultimate responsibility for arriving at just compensation lies upon him and not upon the counsel appearing for the parties. (d) More efforts should also be made by the learned counsel for the insurer for better cross-examination of the witnesses produced by the claimant so that the interest of the insurer is effectively protected by him/her. (e) Since the accident took place as early as 2010, an attempt will be made by the Tribunal to conclude the trial and dispose of the same within four months from the date of receipt of this judgment. (f) Both the parties are directed to appear before the Tribunal on 3-11-2016 at 10-30 AM for further proceedings. (g) Transmit the L.C. record forthwith. 13. The Registry will circulate a copy of this judgment to all the Motor Accident Claims Tribunals of the State for strict compliance with the various laws laid down by the Apex Court reproduced in this judgment while disposing of the claim cases.