JUDGMENT AND ORDER : 1. The appeal being MAC. App. No. 115 of 2013 [National Insurance Co. Ltd. vs. Biswajit Roy & Another] and Cross Objection being CO (FA) No. 03 of 2014 [Sri Biswajit Roy vs. Smti. Sushmita Sarkar (Dasgupta)] are clustered for disposal by a common judgment as this appeal and the cross objection arise from the judgment and award dated 15.05.2013 delivered in T.S. (MAC) No. 161 of 2012 by the Motor Accident Claims Tribunal, Court No. 4, West Tripura, Agartala. 2. Heard Mr. P. Gautam, learned counsel appearing for the appellant as well as Mr. S. Pal, learned counsel appearing for the respondent/cross-objector. 3. In this appeal and the cross objection, the fundamental facts of the road traffic accident are not in dispute. The cross-objector, hereinafter referred to as the victim, while proceeding towards Krishnagar by riding his motor bike on 22.02.2012 at about 9.30 pm near the BOC at Bardowali he was dashed by a speeding vehicle bearing No. TR-01-C-3378 (Tata Sumo) and from the said accident he received serious injuries on his person, particularly in the lower limb. He was immediately rushed to the GBP Hospital, Agartala but considering the seriousness of the injuries he was taken to the Apollo Hospital, Kolkata where he was treated as an indoor patient w.e.f. 23.02.2012 to 02.03.2012. He sustained injuries on his leg, chest, head and other parts of his body. After discharge from the hospital the victim was under regular medical care. 4. According to the victim, the accident could occur for rash and negligent driving of the said vehicle by its driver. He claimed for compensation to the extent at Rs. 28,00000/-. The tribunal after recording the evidence and making the purported inquiry awarded a sum of Rs. 16,14,980/- with interest @ 7% per annum from the date of filing of the claim petition i.e. 19.04.2012 till the final payment is made. 5. It has been further directed that failing in payment in time i.e. within a period of 2 months from the date of the judgment, the said sum shall carry interest @ 9% per annum from the date of filing of the claim petition. 6. Mr. Gautam, learned counsel appearing for the appellant has raised two fundamental objections viz. 5. It has been further directed that failing in payment in time i.e. within a period of 2 months from the date of the judgment, the said sum shall carry interest @ 9% per annum from the date of filing of the claim petition. 6. Mr. Gautam, learned counsel appearing for the appellant has raised two fundamental objections viz. the assessment of income of the victim is not based on correct procedure and reliance on one income tax return for the year 2010-2011 is unacceptable inasmuch as this income tax return is not for the relevant year. That apart, to assess the income of a business man based on the return of one year is always subject to question. 7. Mr. Gautam, learned counsel has further submitted that even the assessment of tribunal in respect of the disability is unacceptable as 85% disablement as recorded in the disability certificate is conditional and temporary one. For the method that has been followed by the tribunal, to consider the disablement as the permanent disablement the entire assessment has been vitiated. 8. Mr. Gautam, learned counsel has submitted that the Apex Court has clearly laid down the law how to assess the disability vis-a-vis the functional disability to assess the loss of earning in Raj Kumar vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343 . According to him, 40% disability of the lower limb cannot be treated as the functional disability of the entire body. The percentage of such disability has to be related to disability of the body as a whole. Such disability on doubt takes away the functional capacity but that is not of equal proportion. 9. Thereafter, Mr. Gautam, learned counsel has submitted that the compensation as awarded by the tribunal cannot be sustained. In the last lap of his submission, Mr. Gautam, learned counsel has submitted that award of penal interest @ 9% is entirely unsustainable inasmuch as the Apex Court has clearly laid down the law that under Section 171 of the Motor Vehicles Act, the tribunal does not have any authority to impose penal interest with retrospective effect. 10. From the other side, Mr. S. Pal, learned counsel appearing for the victim (the cross-objector) has submitted that the tribunal did not pay the appropriate cost of conveyance. The amount that has been paid is not only inadequate but grossly unreasonable. 10. From the other side, Mr. S. Pal, learned counsel appearing for the victim (the cross-objector) has submitted that the tribunal did not pay the appropriate cost of conveyance. The amount that has been paid is not only inadequate but grossly unreasonable. He has further submitted that the documents filed in this regard such as the air tickets, Annexure-1 series have not been considered by the tribunal. 11. It appears from the invoices of the air tickets that on 23rd February, 2012 air tickets were purchased for travelling from Agartala to Kolkata paying a sum of Rs. 43,758/-. Thereafter, air ticket was purchased for the doctor to return to Agartala on payment of Rs. 3,729/-. On 15.05.2012 for travel of the victim and his escort air tickets were purchased on paying a sum of Rs. 7,280/- . 12. Thus, the total amount paid for the air travel, as supported by the documents, comes to Rs. 54,676/-. Mr. Pal, learned counsel appearing for the cross-objector has stoutly submitted that the petitioner is entitled to get the said amount. On the face of the objections as raised by the learned counsel appearing for the parties, this Court has scrutinized the records and also recorded the evidence of the doctor in particular in terms of the order dated 08.09.2016. 13. In the examination-in-chief on recall, the medical expert, Dr. Dipti Bikash Roy, has categorically stated that “according to our opinion he sustained functional disability of 85%. After examination of the patient, Biswajit Roy we issued a disability certificate to him on 19.12.2012.” 14. In this regard no cross examination has been carried out either by the appellant or by the respondent No. 1 of the cross objection. In Raj Kumar vs. Ajay Kumar, the Apex Court has laid down the principles how to assess the functional disability having due regard to the disability suffered by the victim. 15. In the para-19 of the said judgment, the principles have been summarized as under: “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. 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.” 16. In that judgment, the Apex Court has in unambiguous words, laid down that the percentage of loss of earning capacity is not the same as the percentage of the permanent disability, but in some cases percentage of the permanent disability may be the same as that of the loss of earning capacity. The loss of earning capacity has to be assessed by the tribunal with reference to the evidence in entirety. 17. Even the same permanent disability may result in different percentages of loss of earning capacity for different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 18. In this regard, the tribunal did not have any evidence earlier but the medical experts without making any reference to the victim’s occupation has stated that the person has lost 85% of the permanent functional disability. Surprisingly, as it be, even the appellant did not cross examine the doctor to elucidate what he did mean by the word ‘functional’ disability. To lay law correctly, the loss of earning capacity or if it is stated as the functional disability has to be finally adjudicated and determined by the tribunal with particular reference to the occupation of the person who has suffered the disability. To lay law correctly, the loss of earning capacity or if it is stated as the functional disability has to be finally adjudicated and determined by the tribunal with particular reference to the occupation of the person who has suffered the disability. But here, there is no such evidence. However, from the income tax return filed by the claim petitioner it is surfaced that the cross objector is the contractor and he has business of the electronic products. 19. Mr. Pal, learned counsel has succinctly submitted that the mobility of the cross objector is one of the important assets for his business and as such when his mobility has been reduced by 85% according to the expert’s opinion, the tribunal has not committed any wrong by assessing loss of earning equal to the percentage of the disability. 20. The further objection as raised by Mr. Gautam, learned counsel appearing for the appellant is that the relevant return on the income tax was not filed. This Court has checked the original records and found that the return was filed much before the accident and the return is for the previous assessment year. That apart, the return was filed electronically. Even if, Mr. Gautam’s analogy is accepted that the return of the same assessment year should have been filed, but the assessment year would have come to its end much after the accident had occurred. So in the circumstances of this case, there is no substance in such objection. 21. Thus, according to this Court, the better evidence in this case is the income tax return of the previous assessment year. The residual capacity has been assessed at 15%. It has to be accepted that there is no mechanism to assess the damage as perfectly as beyond any suspicion. What we do make a broad assessment of the loss within the parameters of Section 168 of the Motor Vehicles Act, 1988. 22. Here in this case when this Court has found that the loss of earning capacity has been considered only for 5 years, no one can say with certainty that the nature of injury the cross-objector has suffered could only de-capacitated the victim for 5 years only, not beyond that. 22. Here in this case when this Court has found that the loss of earning capacity has been considered only for 5 years, no one can say with certainty that the nature of injury the cross-objector has suffered could only de-capacitated the victim for 5 years only, not beyond that. Thus, this Court is not inclined to interfere with the loss of income as assessed by the tribunal but is inclined to interfere with the expenses of travel as awarded by the tribunal. Thus, the amount on that account shall be enhanced by Rs. 54,707/-. 23. Since there is no objection about the other components of the award, the award shall be Rs. 16,59,686/-. This amount shall carry interest @ 7% from the date of filing of the claim petition i.e. 19.04.2012 till the payment is made. 24. Mr. Gautam, learned counsel appearing for the appellant has submitted that the insurance company-appellant has already deposited a sum of Rs. 16,14,980/- in this Court in terms of the order passed on 01.03.2014 in C.M. 544 of 2013 arising from this appeal. This Court is further of the view that the penal interest as imposed at 9% per annum from the date of filing of the claim petition cannot be sustained and accordingly, the same is interfered with and quashed. 25. Having observed thus, both the appeal and the cross objection stand partly allowed. The remaining part of the award with interest shall be paid by the appellant within a period of 2(two) months from today in the tribunal. On deposit, such amount shall be paid to the cross-objector on proper identification. Send down the LCRs forthwith.