JUDGMENT AND ORDER : 1. In this appeal, the appellant-insurer is questioning the legality of the judgment dated 7.12.2012 passed by the learned Member, Motor Accident Claims Tribunal, Sonamura, West Tripura in TS (MAC) No. 24 of 2012 awarding a sum of Rs. 17,65,730/- together with interest @ 8% per annum to the claimant-respondent on the ground that the award is excessive and unjust. 2. The facts giving rise to this appeal may be briefly noticed at the outset. It is the case of the claimant-respondent that in the morning of 21.3.2012, the claimant-respondent was returning home from Kemtali market in an autorickshaw bearing registration number TR-01-C-2254 along Kemtali-Durlabnarayan Road. As the auto-rickshaw was driven by the driver in a rash and negligent manner on the wrong side of the road and pushed the brake which forced his leg out of the vehicle as a result of which the leg guard of the motor bike coming from the opposite direction struck at his right leg knee. Consequently, he sustained grievous injuries on his right leg. He was immediately taken to GB Hospital, Agartala and was admitted there. Due to the accident, he suffered fracture of right femur shaft along with vascular injury. When his condition did not improve, on, he was referred and taken to SSKM Hospital, Kolkata for better treatment, but due to non-availability of bed, he was ultimately admitted AMRI Hospital, Kolkata and treated there as indoor patient from 29.3.2012 to 4.4.2012. He underwent major surgery leading amputation of his right leg above the knee. Even after discharge, he continued his treatment. As a result of the accident, he was certified by the District Disability Board to suffer physical disability to the extent of 80%. In connection with the said accident, the police registered Melaghar PS Case No. 67 of 2012 U/s 279/338 IPC against the driver of the Auto-Rickshaw. He, therefore, claimed a compensation of Rs. 38,04,000/-. 3. The claim petition was contested by the owner of the vehicle (respondent No. 2 herein), the owner of the bike (respondent 3 herein) and the appellant-insurer (respondent No. 4 herein) by filing their respective written statements. The stance taken by the respondent No. 2 is that the Autorickshaw was driven by an authorized driver having a valid driving license and that there was no rash and negligent driving of the Auto-rickshaw. The stance taken by the respondent No. 2 is that the Autorickshaw was driven by an authorized driver having a valid driving license and that there was no rash and negligent driving of the Auto-rickshaw. As the vehicle was insured with the appellant-insurer, the liability for payment of compensation, if so found, should be satisfied by the appellant-insurer. The respondent No. 3 in his written statement also took the stance that the accident occurred due to the rash and negligent driving of the bike and blamed the respondent No. 2 for the accident. As for the insurer, its contention is that the claim is imaginary and excessive. On the pleadings of the parties, the Tribunal framed the following issues: (1) Whether the claimant-petitioner sustained any injury on 21.3.2012 at about 7/7:30 AM at Kemtali-Shitlabari on Kemtali-Durlabnarayan road under Melghar Police Station in a road traffic accident involving the vehicle bearing No. TR-01-C-2254 (Auto- Rickshaw) due to rash and negligent driving by its driver? (2) Is the claimant-petitioner entitled to get any compensation under provision of Section 166 of M.V. Act, 1988? If so, to what extent and who shall be held liable to pay the same? 4. The claimant-respondent examined himself and one other witness to substantiate his claim petition and exhibited documentary evidence such the copies of the FIR, ejahar, final report, injury report, discharge certificates, referral certificate, prescriptions, cash memos, air tickets, income certificate, age proof certificate, certificate for handicapped person, etc. under Exbt. 1 series. The respondent No. 2 did not examine himself as witness but produced some photo copies of documents viz. insurance certificate, fitness certificate, registration certificate, driving licence, route permit and tax token under Exbt. A-series and Exbt.B-series. However, no oral or documentary evidence were adduced on behalf of the owner of the bike or the appellant-insurer to defend the respective stands taken by them in resisting the claim petition. At the conclusion of the trial, the impugned award was passed. Dissatisfied with the compensation so awarded as being excessive and unjust, this appeal has been preferred by the insurer. 5. Assailing the impugned award, Mr. P. Gautam, the learned counsel for insurer, submits that the Tribunal has erred in relying on the income certificate issued by Deputy Collector/ Magistrate, Melaghar Revenue Circle, which was issued without any jurisdiction and is, therefore, a nullity, in assessing the income of the claimant-respondent. 5. Assailing the impugned award, Mr. P. Gautam, the learned counsel for insurer, submits that the Tribunal has erred in relying on the income certificate issued by Deputy Collector/ Magistrate, Melaghar Revenue Circle, which was issued without any jurisdiction and is, therefore, a nullity, in assessing the income of the claimant-respondent. Moreover, argues the learned counsel, the claimant respondent, even assuming but not admitting that he used to be a fisherman prior to the accident, he could not have any regular income at all and assessing his income at Rs. 7,500/- per month is without any basis and is, therefore, perverse and has resulted in awarding unjust and punitive, which is liable to be interfered with. He also contends that the Tribunal has confused the concept of physical disability and the loss of earning capacity and did not take into account the glaring fact that in assessing the compensation payable for physical disablement, it is the loss of earning capacity, which alone is determinative of the quantum of compensation payable to the claimant. The learned counsel further submits that in determining the compensation, the Tribunal, has acted contrary to the settled law, and illegally come to the conclusion that as the leg of the claimant, who used to be a fisherman prior to the accident, was amputated, his loss of earning capacity was to the extent of 100%. In any view of the matter, contends the learned counsel, the impugned award is arbitrary, perverse and illegal and is, as such, liable to be set aside or drastically reduced so that the claimant is awarded a compensation, which is not excessive, but just, fair and reasonable. To fortify his various contentions, the learned counsel relies on the decisions of the Apex Court in Sanjay Kumar vs. Ashok Kumar and Another, (2014) 5 SCC 330 . 6. On the other hand, Mr. A. Das, the learned counsel for the claimant, maintains that the monthly income of the claimant arrived at by the Tribunal at Rs. 7,500/- cannot be said to be perverse or arbitrary when the insurer did not deny that he was a fisherman by occupation at the time of the accident. The practice of demanding documentary evidence to prove the monthly income from self-employed people such as the claimant herein, who belongs to an unorganized sector, has been deprecated by the Apex Court from time to time. The practice of demanding documentary evidence to prove the monthly income from self-employed people such as the claimant herein, who belongs to an unorganized sector, has been deprecated by the Apex Court from time to time. According to the learned counsel, as long as the income asserted by the income is not exorbitant by any standard and reflective of ground realities, which is the case here, such claim has to be accepted. It is also the contention of the learned counsel that the claimant, who was a fisherman before the accident and whose right leg has been amputated resulting from the vehicular accident can hardly continue his said occupation now or find an alternative gainful employment elsewhere in his present disability condition to sustain his livelihood and that of his family members. He, therefore, submits that the impugned award does not warrant the interference of this Court and that the appeal is liable to be dismissed. Strong reliance is placed by him on the decision of the Apex Court in Syed Sadiq and Others vs. Divisional Manager, United India Insurance Company Ltd. (2014) 2 SCC 735 to support his various contentions. 7. After giving my anxious consideration to the rival submissions advanced by the learned counsel appearing for both the parties, the first point for consideration is whether the Tribunal is correct in holding that functional disability or loss of earning capacity of the claimant, who is certified to have sustained physical disability to the extent of 80%, has correspondingly sustained loss of earning capacity to the extent of 100%? The crucial findings of the Tribunal are as follows: “.........Due to the accident, the petitioner suffered fracture of right femur shaft along with vascular injury and by an operation his right leg above knee has been amputated. The Tribunal had an occasion to look at the petitioner when he appeared before the Tribunal to get him cross-examined by the opposite parties. On a bare look at the right leg it appears that he cannot pass his rest of life without help of scrutch. He was produced before the Tribunal being accompanied by escorts. It is presumed that due to damage of his right leg, the burden of his right leg will be carried out by a scrutch for the rest of his life. He was produced before the Tribunal being accompanied by escorts. It is presumed that due to damage of his right leg, the burden of his right leg will be carried out by a scrutch for the rest of his life. The profession of a fisher/cultivator is not an office work that once he has been sited (?) in the chair, he will continue his table work. A fisher/cultivator requires to move hither and thither for the sake of his profession. From practical point of view it seems that this type of profession requires frequent movement. This Tribunal feels that damaged of one leg of a person like a fisher/cultivator would be the end of the road in so far as his earning capacity is concerned which is a very traumatic effects on one’s personal, family and social life. Since due to the accident, the right leg of the petitioner became permanently disabled, he will not be in a position to continue his profession for ever and, therefore, he lost his 100% earning capacity permanently.........” 8. As already noticed, the soundness of the above findings has been seriously questioned by the learned counsel for the insurer. The principles for ascertaining the loss of earning capacity of a claimant who suffers from permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings were laid down by the Apex Court in Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 as under: “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 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%. 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. 9. In Syed Sadiq case (supra), the appellant was working as a vegetable vendor, aged about 24 years sustaining injuries to lower end of right femur, left upper arm and his right leg had to be amputated. 9. In Syed Sadiq case (supra), the appellant was working as a vegetable vendor, aged about 24 years sustaining injuries to lower end of right femur, left upper arm and his right leg had to be amputated. It was held by the Apex Court that the occupation of vegetable vending is not confined to selling vegetables from a particular location but involves procuring vegetables from wholesale market or farmers and then selling it in retail market, often in cart which requires 100% mobility and his functional disability was, therefore, estimated at 85% for determining loss of income. In Sanjay Kumar (supra), the claimant was found to be an embroiderer, and his right leg above the knee had to be amputated due to the injuries sustained by him in a vehicular accident. The Apex Court did not interfere with the assessment of the loss of earning capacity of the claimant at 70%. In the instant case also, the right leg of the claimant above the knee was amputated as a result of the said vehicular accident. He is found to be a fisherman prior to road accident. In my opinion, a person whose right leg has been amputated can hardly continue his occupation inasmuch as 100% mobility is required in such occupation. However, it could not be said that he would have to entirely abandon his occupation; he could still earn some income though it may not be to the extent to which he used to earn before the accident. Therefore, after taking all aspects into consideration, I am of the opinion that the assessment of the functional disability of the claimant by the Tribunal to the extent of 100% cannot be sustained and that his functional disability should, therefore, be confined to 80%. 10. Coming now to the income of the claimant, which is assessed at Rs. 7,500/- on the basis of the income certificate issued by the Deputy Collector & Magistrate, Melaghar/Revenue Circle inasmuch as no dispute was raised to this effect. In his examination-in-chief by affidavit, the claimant as PW-1 categorically stated that he was 34 years old at the time of the accident and used to catch, collect and sell fish in the market and cultivate lands and earn Rs. 12,000/- per month. His evidence is corroborated by his co-passengers, who were examined as PW-2 and PW-3. In his examination-in-chief by affidavit, the claimant as PW-1 categorically stated that he was 34 years old at the time of the accident and used to catch, collect and sell fish in the market and cultivate lands and earn Rs. 12,000/- per month. His evidence is corroborated by his co-passengers, who were examined as PW-2 and PW-3. The insurer in the cross-examinations of these witnesses never disputed that the claimant was a fisherman or used to cultivate lands. Though the Tribunal had assessed the monthly income of the claimant at Rs. 7,500/- in the absence of better evidence coupled with the fact that the nature of the occupation carried on by him for which regular income was hardly possible, I am inclined to believe that a fisherman like the claimant was reasonably capable of earning Rs. 6,500/- per month, as that would be nearer to the ground realities. The guidelines and heads for awarding compensation in cases of disability due to motor accidents have been succinctly explained by the Apex Court in Raj Kumar case (supra) at para 6 and 7 of the judgment, which are in the following terms: “6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, 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. 7. 7. 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. Decisions of this Court and the 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.” 11. Against pecuniary damages, the Tribunal awarded Rs. 92,333/- which does not need any interference. Another sum of Rs. 3,000/- was awarded towards the cost of attendant for 15 days @ Rs. 200/- per day, which is also not liable to be interfered with. Another sum of Rs. 70,944/- was awarded towards purchase of airfares to and fro journey of Agartala- Kolkata for further and better treatment of his injuries. There is no infirmity in this award. Another sum of Rs. 1,950/- was awarded as consultation fees for a private medical practitioner. Another sum of Rs. 10,000/- was awarded as conveyance allowance for his transportation charges. As for loss of earning, as the monthly income of the claimant is found to be 6,500/- which, if multiplied by 12 months, would come to Rs. 78,000/- to make it his annual income. The claimant would also be entitled to 30% increment in the future prospect of income based on the principles laid down in Sarla Verma and Others vs. DTC, (2009) 6 SCC 121 . The claimant will also be entitled to Rs. 1,00,000/- for loss of pain and suffering as his leg was amputated. Thus, the total amount of compensation due to loss of earning capacity along with future prospects in income will come to Rs. 6500 x 80/100 x 12 x 16 = 9,98,400/-. Therefore, the claimant will be entitled to a compensation of Rs. 9,98,400 + Rs. 1,00,000 + Rs. 92,233 + Rs. 3,000 + Rs. 70,944 + Rs. 1,950 + Rs. 10,000 = Rs. 12,76,527/-. 6500 x 80/100 x 12 x 16 = 9,98,400/-. Therefore, the claimant will be entitled to a compensation of Rs. 9,98,400 + Rs. 1,00,000 + Rs. 92,233 + Rs. 3,000 + Rs. 70,944 + Rs. 1,950 + Rs. 10,000 = Rs. 12,76,527/-. In addition to this, the claimant will be entitled to interest @ 8% per annum with effect from the date of the claim petition. There shall, however, be no penal interest. 12. Resultantly, this appeal partly succeeds. The appellant-insurer shall deposit a sum of Rs. 12,76,527/- together with interest @ 8% per annum from the date of the claim petition with the Registry within two months from the date of receipt of this judgment. As and when the amount is deposited, the same shall be released to the claimant-respondent No. 1 without further reference to this Court. Needless to say, any amount already deposited by the appellant or paid to the claimant shall be adjusted accordingly. Conversely, any amount already deposited by the appellant or paid to the claimant in excess of the amount awarded herein shall be refunded to the appellant without further reference to this Court after satisfying the usual formalities. The impugned judgment stands modified in the manner and only to the extent indicated above. No cost.