JUDGMENT : Abdullah Gulamahmed Uraizee, J. 1. The First Appeal No. 1330 of 2014 preferred by the appellant-Insurance Company and the X-OBJ No. 113 of 2014 preferred by the claimant arising from the selfsame judgment and award dated 7.02.2014 passed by the Motor Accident Claims Tribunal, Ahmedabad (Rural) at Mirzapur in MACP No. 2112 of 2008. 2. The Insurance Company has questioned the quantum of compensation awarded by the Tribunal while the claimant by filing X-OBJ is seeking enhancement in the compensation. 3. The facts in brief giving rise to the present appeal are that the respondent No. 1, who was driving the motorcycle bearing registration No. GJ-2-AK-9069 on 07.08.2008. Ashokjibhai was the pillion riding. When the motorcycle was passing through the Government Bore located at Nadipur-Mokhasan approach road, the respondent No. 2 came with truck bearing registration No. GJ-1-AT-1787 from the opposite direction and the motorcycle with the respondent No. 1 original claimants was driven dashed with the said truck. As a result, the respondent No. 1 sustained serious injuries all over his body while Ashokjibhai, who was pillion riding sustained fatal injuries and died. The respondent No. 1 preferred MACP No. 2112 of 2008 before the Motor Accident Claims Tribunal, Ahmedabad (Rural) at Mirzapur to recover Rs. 35 lac as compensation from the respondent No. 2-driver of the offending truck, respondent No. 3-owner of the offending truck and the appellant being insurer of the offending truck. The tribunal has by the impugned judgment and award partly allowed the Claim Petition and directed the appellant and the respondent Nos. 2 and 3 to pay a sum of Rs. 18,53,000/- with 9% interest and proportionate costs jointly and severally to the respondent No. 1. 4. We have heard Mr. Palak Thakkar, learned advocate for the appellant-Insurance Company and Mr. Hiren Modi, learned advocate for the claimant. There is no representation on behalf of the respondent Nos. 2 and 3 despite service of notice of appeal. 5. Mr. Thakkar, learned advocate for the appellant-Insurance Company had vehemently urged that looking to the manner in which the accident happened as is emerging from the panchnama of place of the accident, the Tribunal committed to have 50% negligence on the part of the respondent No. 1. 2 and 3 despite service of notice of appeal. 5. Mr. Thakkar, learned advocate for the appellant-Insurance Company had vehemently urged that looking to the manner in which the accident happened as is emerging from the panchnama of place of the accident, the Tribunal committed to have 50% negligence on the part of the respondent No. 1. He relied upon the decision of the Supreme Court in the case of Raj Kumar v. Ajay Kumar, reported in 2011 (1) SCC 343 , that in fact the respondent No. 1-original claimant had not suffer any economic loss owing to the disability on account of the injuries, and therefore, the Tribunal ought not to have awarded any compensation for future loss of income. He would also submit that the compensation awarded under the head of amenities of life, pain shock and suffering is also on a very higher side. He, therefore, urges that the appeal preferred by the appellant-Insurance Company may be allowed and compensation awarded by the Tribunal may be reduced accordingly. 6. Per contra, Mr. Hiren Modi, learned advocate for the respondent No. 1 submits that the Tribunal ought to have assessed the disability at 100% in place of 47% as deposed by Dr. Hiren P. Maniar as the respondent No. 1 has lost his job because of the injuries and disability suffered by him. It is his further submission that the compensation awarded under the head of amenities of life and pain shock and suffering is on lower side considering the nature and number of injuries suffered by the respondent No. 1. He would also submit that the Tribunal has reimbursed the medical expenses as per the medical bills produced by the respondent No. 1, but, in fact, the respondent No. 1 had incurred much more expenses and many of medical bills or could not have produced in the Tribunal as they were lost or misplace. He, therefore, urges that Rs. 9,00,000/- claimed in the Claim Petition may be awarded for medical expenses. He, therefore, urges that the appeal preferred by the appellant-Insurance Company may be dismissed and X-OBJ may be allowed. 7. We have given our thoughtful consideration to the rival contentions canvassed by the learned advocates. We have also perused the record of the Tribunal. 8. 9,00,000/- claimed in the Claim Petition may be awarded for medical expenses. He, therefore, urges that the appeal preferred by the appellant-Insurance Company may be dismissed and X-OBJ may be allowed. 7. We have given our thoughtful consideration to the rival contentions canvassed by the learned advocates. We have also perused the record of the Tribunal. 8. The Supreme Court in the case of Raj Kumar V. Ajay Kumar (supra) has considered the observations and the fact of permanent disability on the earning capacity in paragraph No. 13 and has summarized the principals in that regard in paragraph No. 19. We deem to extract both the paragraphs as infra:- "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 10 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. 19. 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). 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." 9. It appears from the complaint at Exhibit-36 that the offending truck driven by the respondent No. 2 had come from the opposite direction and the motorcycle driven by the respondent No. 1-original claimant had dashed with the rear portion of the offending truck. It further emerges that the offending truck was big truck, and therefore, it was expected of respondent No. 2 to have driven the truck with all care and cause at moderate speed to avoid any accident. Mr. Thakkar, learned advocate for the appellant - Insurance Company has placed heavy emphasis on Exhibit-37 panchnama of place of the accident to convince this Court to attribute at least 50% negligence on the part of the respondent No. 1 herein on the ground that at the time of drawing the panchnama the offending truck was found on the edge of the road, and therefore, the truck was on the correct side of the road. We are not inclined to accept this submission. It is the matter of common knowledge that after the accident, the position of vehicle involved in the accident do not remain the same and many a times with a view to clear the road the vehicles are shifted on one side of the road to facilitate free flow of traffic. 10. The nature of damages stated at Exhibit-37 panchnama would leave no room for doubt that the respondent No. 2 herein who was driving the offending truck at a very high speed and in a negligent manner. As a result, the accident had happened. 10. The nature of damages stated at Exhibit-37 panchnama would leave no room for doubt that the respondent No. 2 herein who was driving the offending truck at a very high speed and in a negligent manner. As a result, the accident had happened. In the accident, the motorcycle driven by the respondent No. 1 herein was turned for same distance which demonstrate the high speed of the offending truck. We, therefore, of the opinion that the Tribunal has rightly recorded the conclusion that it was the respondent No. 2 driver of the offending truck who was solely responsible for happening of the accident and no contradictory negligence can be attributed to the respondent No. 1 herein. 11. It was the case of the respondent No. 1 that at the time of accident he was working as a Clerk in a school and had to sustained treatment for two years during which he was confine to bed to imminently taking patient treatment in various hospitals. It is his further case that his services as a clerk in a school came to be terminated as he was unable to work of the clerk. Exhibit-33 Certificate issued by the school is placed on record to show that his services were terminated on account of injuries suffered by him in the vehicular accident. 12. Dr. Maniar, who has given the Disability Certificate (Exhibit-35) stated in his oral evidence that as per the principals of Doctor he has assessed permanent disability at 47.5% body as a whole and in this regard he has given Disability Certificate (Exhibit-35). Disability Certificate reveals that apart from other difficulties, the respondent No. 1 has pain in his right wrist and cannot be moved the right wrist and four arm has fully broken. 13. It further stated in Disability Certificate that the respondent No. 1 cannot be group object formally or lift more than 4-5 k.g. Weight with right hand. He has default left wrist and left form with deviation to one side and cannot be move wrist and form normally and cannot huge activity of daily line. It further emerges from the certificate that the respondent No. 1 is left handed. 14. He has default left wrist and left form with deviation to one side and cannot be move wrist and form normally and cannot huge activity of daily line. It further emerges from the certificate that the respondent No. 1 is left handed. 14. Shri Jaideep Chawda, who was the Vice Principal in K.B. Dave College and examined by the respondent No. 1 and has stated in his oral evidence that the service of the respondent No. 2 came to be terminated after the accident. He could not attend his duties and was not able to write with his right hand. It is thus, eminently clear from the oral as well as documentary evidence produced by the respondent No. 1 that his service is of a clerk came to be terminated as he was not able to work as a clerk. The Tribunal has refused to consider the disability of the respondent No. 1 at 100% only on the premises that the Dr. Maniar has in his Disability Certificate at Exhibit-35 has assessed the permanent disability at 47%, but, since the documentary and oral evidence obtainable on the record demonstrate that the respondent No. 1 is not able to do the work which he was doing before the accident. We are of the opinion that the functional disability suffered by the respondent No. 1 for the purpose of determining the loss of earning capacity should be assessed at 100%. In our opinion the Tribunal has assessed the monthly income of the claimant at Rs. 7400/- which does not warrant interference. Therefore, the loss of future income would be 7400 x 12 x 17 = Rs. 15,09,600/-. 15. The Tribunal has awarded a sum of Rs. 1,00,000/- under the head of pain shock and suffering. We are of the view that this is a just compensation considering the number and nature of injuries and length of treatment which the respondent No. 1 had to take and the same does not warrant any interference in this appeal. 16. As far as Rs. 2,00,000/- awarded by the Tribunal under the head of loss of amenities of life is concerned. We feel that the Tribunal has awarded this compensation without elaborating and seems to be a little of higher side. Considering the overall facts and circumstances of the case, we are of the view that the reasonable compensation under this set would be Rs. 2,00,000/- awarded by the Tribunal under the head of loss of amenities of life is concerned. We feel that the Tribunal has awarded this compensation without elaborating and seems to be a little of higher side. Considering the overall facts and circumstances of the case, we are of the view that the reasonable compensation under this set would be Rs. 1,00,000/- in place of 2,00,000/- as awarded by the Tribunal. The compensation under the head of diet, transportation and attendant charges needs to be scale down Rs. 40,000/- from Rs. 60,000/- awarded by the Tribunal. 17. The outcome of the aforesaid discussion is that the claimant is entitled to the compensation as per the following table:- S. No. Head Amount 1 Loss of Future Income Rs. 15,09,500/- 2 Pain Sock and Suffering Rs. 1,00,000/- 3 Loss of amenities Rs. 1,00,000/- 4 Medical Expenses Rs. 7,40,000/- 5 Diet and Transportation Attendant Charges Rs. 40,000/- Total Rs. 24,89,600/- 18. The Tribunal has awarded Rs. 18,53,000/- as total compensation with 9% interest. The claimants is therefore entitled to Rs. 6,36,000/- as additional compensation with 9% interest. 19. For the foregoing reasons, the appeal preferred by the appellant-Insurance Company and the X-OBJ preferred by the respondent No. 1 is partly allowed. The judgment and award of the Tribunal is hereby modified and the respondent No. 1 is held entitled to Rs. 24,89,600/- with 9% interest in place of Rs. 18,53,000/- awarded by the Tribunal. 20. The appellant-Insurance Company is directed to deposit a sum of Rs. 6,36,600/- with 9% interest in the Tribunal within two months of the receipt of the certified copy of this judgment. 21. Facts of the case the parties are left to bear their own costs. 22. Record and Proceedings be remitted back to the Tribunal forthwith.