JUDGMENT : MR.JUSTICE A.Y. KOGJE, J. The present First Appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred by the Insurance Company-original opponent in Motor Accident Claim Petition No. 212 of 2014 decided by the Motor Accident Claims Tribunal (Main) at Dahod. 1.1 The Cross Objection is filed by the original claimant. 2. With the consent of both the parties, the First Appeal as well as the Cross Objection are taken up for final disposal. 3. The facts in brief are as under:- 3.1 The claimant-Rakesh Bachubhai Pargi was driving a vehicle being Tata Magic on 31.01.2014 and at around 8 P.M., while the claimant was passing from the Village Sagawada at Santrampur-Ukhereli Road, at that time, opponent No.1-respondent No.2 herein who was driving a tractor in a very rash and negligent manner, lost control and collided with the Tata Magic driven by the claimant causing serious injuries to the claimant including crush injuries on his right leg. On account of the accident, the claimant suffered amputation on his right leg and therefore, disability of a permanent nature. 3.2 On account of his permanent disability, the claimant having lost his earning capacity, filed a claim petition under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs.31,70,000/- (Rupees Thirty One Lacs Seventy Thousand Only) from the driver-owner of the tractor and its insurer. 3.3 The Motor Accident Claims Tribunal, after considering the evidence on record which included oral deposition of the claimant, panchnamas relating to the accident, medical needs, arrived at a conclusion that the claimant is entitled to compensation of Rs.7,71,188/-. 3.4 Aggrieved by the said award, the Insurance Company has preferred the present First Appeal. The main contention of the Insurance Company is that while awarding the compensation, the Tribunal has not taken into consideration the negligence on part of the claimant in the accident. It is submitted that though the evidence was led and the Tribunal also appreciating such evidence, concluded that the claimant is negligent to the extent of 25% in causing the accident, however no amount was deducted from the final compensation awarded towards the negligency of the claimant. It is submitted that though the evidence was led and the Tribunal also appreciating such evidence, concluded that the claimant is negligent to the extent of 25% in causing the accident, however no amount was deducted from the final compensation awarded towards the negligency of the claimant. 3.5 This Court, by order dated 14.11.2017, issued notice for final disposal of the First Appeal and in the Civil Application, directed the Insurance Company to deposit the amount of compensation awarded by the Claims Tribunal with cost and interest, thereby staying the implementation and execution of the award. 3.6 Pending this, Cross Objection is filed by the claimant contending that while awarding the compensation, the Tribunal has not taken into consideration the several aspects. 4. Learned advocate Mr. Hakim on behalf of the claimant submitted that though it was deposed by the claimant that he was working as a driver and was earning an amount of Rs.10,000/- per month, the Tribunal has assessed the minimum wage applicable to an unskilled worker. Further, the component of dearness allowance which is available to the worker fixed under the Minimum Wages Act has not been taken into consideration. It is submitted that the claimant is a driver by profession driving a passenger vehicle. The injury suffered by the claimant i.e. amputation of his leg has been certified to be disability to the extent of 85%. Thus, the Tribunal has assessed the disability at 48% and has at all not considered the functional disability on account of such amputation of right leg. It is also submitted that the Tribunal has not at all taken care of the future medical expenses which the claimant has to suffer and the amount awarded under the head of Mental Shock and Suffering of Rs.1,50,000/- is highly inadequate considering the fact that the claimant having lost his right leg, has lost amenities and enjoyment of life including loss of matrimonial prospects. He therefore referred to the evidence on record with regard to the injuries sustained, the medical certificate issued by the Doctor and Schedule-I of the Workmen’s Compensation Act which narrates list of injuries deemed to result in permanent total disablement and the percentage of loss of earning capacity. 4.1 Learned advocate Mr. He therefore referred to the evidence on record with regard to the injuries sustained, the medical certificate issued by the Doctor and Schedule-I of the Workmen’s Compensation Act which narrates list of injuries deemed to result in permanent total disablement and the percentage of loss of earning capacity. 4.1 Learned advocate Mr. Hakim for the claimant urges that as the amputation is below the hips and above the knee, the percentage of loss of earning capacity as per the Schedule is 70% to which the claimant is entitled to. He thereafter relied upon the judgment of the Apex Court in case of Raj Kumar vs. Ajay Kumar and anr.[(2011) 1 SSC 343] to emphasize his submission that while assessing the disability, the Court has to play proactive role as in the instant case, the Court has merely relied upon the purshis jointly filed by advocates for the parties before the Tribunal and applied the disability to the extent of 48%. 5. Having heard learned advocates for the rival parties, having taken into consideration the evidence produced on record and made available by the parties, it appears that the Tribunal, in computing the income of the claimant, has taken into consideration the evidence regarding educational qualification of the claimant and also the evidence on oath that the claimant was doing the work of a driver of the vehicle. Following the guidelines of the Apex Court, the Tribunal has taken into consideration the minimum wages of an unskilled worker declared by the Government for the period between 01.10.2013 to 31.03.2014 as the date of accident is 31.01.2014 and held the income of the claimant to be Rs.4053/-. 6. In absence of any evidence of earning Rs.10,000/- per month, the Court is not inclined to accept the submission on behalf of the claimant to consider his monthly income of Rs.10,000/-. However, the Court is inclined to accept the submission of Mr. Hakim that where the Court has assessed the monthly income of the claimant on the basis of minimum wage- the minimum rate of an unskilled worker declared by the Government during the relevant period, then the claimant is also entitled to the component of dearness allowance which is also part of the minimum wages available to an unskilled worker. Hakim that where the Court has assessed the monthly income of the claimant on the basis of minimum wage- the minimum rate of an unskilled worker declared by the Government during the relevant period, then the claimant is also entitled to the component of dearness allowance which is also part of the minimum wages available to an unskilled worker. Considering the observations made by the Supreme Court in case of Syed Sadiq vs. United India Insurance Company Limited [ 2014 (2) SCC 735 ], the Court is inclined to accept the monthly income of the claimant at the time of accident to be Rs.5580/- per month (Minimum Wages + Dearness Allowance) as against Rs.4053/- held by the Tribunal. 7. Considering the age of the claimant, the Tribunal has rightly applied 40% rise for the prospective future income and therefore, the monthly income of the claimant is now assessed at Rs.7812/- (Rs.5580 + Rs.2232(40%) = Rs.7812). 8. In so far as the disability is concerned, the evidence on record marked as 7/12 is the disability certificate. The disability certificate gives the opinion that the claimant has suffered 85% of the disability along with other serious injuries i.e. amputation of his right leg from knee. The certificate also shows infected (N) thigh and severe skin scarring. The Trial Court, on the basis of the Joint Purshish moved at Exh.35 which mentions that the medical certificate shows 85% of the permanent disability on right lower limb and 48% permanent disability of the body as whole be considered and thereafter, adopted the disability of 48%. The evidence Exh.13 –the deposition of the claimant himself has clearly indicated that the claimant was doing a work of a driver and was also driving a vehicle Tata Magic which belongs to his father and was earning from it. He has also deposed that on account of injuries, he was operated and his right leg was amputated below knee and thereafter, on account of injuries suffered by him, he was once again admitted in the hospital and when he was admitted for the second time, his leg was required to be amputated from the knee itself. Considering this evidence on record, it will be appropriate to refer to Schedule-I of the Workmen’s Compensation Act wherein in Part-II, list of injuries deemed to result into permanent partial disablement and percentage of loss of earning capacity is reflected. Considering this evidence on record, it will be appropriate to refer to Schedule-I of the Workmen’s Compensation Act wherein in Part-II, list of injuries deemed to result into permanent partial disablement and percentage of loss of earning capacity is reflected. Considering the fact that the amputation is below thigh to below knee, Entry No.19 in amputation cases – lower limbs gives the percentage of loss of earning capacity as 60%. Moreover, when admittedly, the claimant is a driver, the functional disability has to be taken into consideration while considering the earning capacity of an individual. The Apex Court in case of Raj Kumar (supra) has held in paragraphs 10 and 11 as under:- “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. 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. 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 and 169 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.” 9. In view of aforesaid, the Court has no hesitation in holding that the claimant has suffered the functional disability because of which he has lost the earning capacity to the extent of 60%. In view of aforesaid, the income of the claimant is now assessed at Rs.56,246/-(Rs.7812 x 60% x 12). This Court has considered the monthly income of the claimant at Rs.5580/-. In view of aforesaid, the income of the claimant is now assessed at Rs.56,246/-(Rs.7812 x 60% x 12). This Court has considered the monthly income of the claimant at Rs.5580/-. The claimant will also be now entitled to more additional compensation under the head of Actual Loss of Income which is now assessed at Rs.33,480/- (Rs.5580/- per month x 6 months). 10. Considering the evidence on record, the Court is inclined to accept the compensation awarded by the Tribunal under the head of Medical Expenses at Rs.1,75,000/- and Special Diet at Rs.25,000/-. However, the Court is not inclined to consider the submission on behalf of the claimant claiming Rs.50,000/- towards future medical expenses as no evidence is found in this regard. 11. Under the head of Mental Pain, Shock and Suffering, the Tribunal has awarded Rs.1,50,000/-. However, considering the evidence on record, it appears that the claimant was aged 25 years and was unmarried. Therefore, over and above the Mental Pain, Shock and Suffering, the claimant has also suffered loss of amenities and enjoyment of life including loss of matrimonial prospects. The Court is therefore inclined to grant additional amount of Rs.50,000/- under the head of loss of enjoyment of life and matrimonial prospects. 12. The Court has also perused the judgment of the Trial Court wherein after taking into consideration the evidence on record in the form of panchnama at Exh.20 and FIR at Exh.19, concluded that the offending vehicle tractor was largely responsible for the accident, but has found the claimant also to be responsible to some extent. The Tribunal has held in paragraph 17 that the extent of negligence on part of the claimant was 25% and that of the tractor is 75%. However, while awarding the compensation, appropriate deduction ought to have been made from the compensation calculated for the claimant. Instead, the Court in paragraph 36 has held that the opponents are severally and jointly liable to pay full compensation to the claimant. The opponents can recover 25% amount of compensation from the owner of the insurer of Tata Magic driven by the claimant. This, in the opinion of the Court, is an erroneous method adopted once having concluded the negligence on part of the claimant to the extent of 25% and appropriate deduction in that regard ought to have been made. There is no serious contest on part of the claimant on this issue. This, in the opinion of the Court, is an erroneous method adopted once having concluded the negligence on part of the claimant to the extent of 25% and appropriate deduction in that regard ought to have been made. There is no serious contest on part of the claimant on this issue. The Court therefore holds that out of the total compensation, 25% be deducted on account of negligence attributed to the claimant himself. The claimant is now entitled to the compensation as under:- Sr. Nos. Particulars Amount(Rs.) 1 Compensation for loss of future income/earning capacity 9,56,182=00 2 Loss of actual income 33,480=00 3 Medical expenses 1,75,000=00 4 Special Diet 25,000=00 5 Mental Pain, Shock and Suffering 1,50,000=00 6 Loss of amenities/enjoyment of life/matrimonial prospects 50,000=00 Total Compensation Less 25% towards Negligence 13,89,662=00 3,47,415=00 Net Compensation 10,42,247=00 13. The impugned judgment and award stands modified to the aforesaid extent only. 14. The additional amount of compensation be deposited with the Trial Court by the Insurance Company within a period of two months. 15. In view of above, both First Appeal as well as Cross Objection are disposed of.