JUDGMENT : 1. Heard Mr. B.K. Jain, the learned counsel for the appellant as well as Mr. K.K. Dey, the learned counsel appearing for the respondent No. 1. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Act”) is preferred against the judgment and award dated 12.02.2010, passed by the learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati in MAC Case No. 1456/2002. This appeal has been filed for enhancement of award. 3. The case of appellant in brief is that on 04.05.2001 while he was proceeding from Ganeshguri towards Zoo Road Tiniali at Guwahati on his motorcycle bearing registration No. AS-01-B-9905, near Sundarpur, suddenly a Matiz Car bearing registration No. AS-25-B-2277, which was coming from the same direction at a high speed in a rash and negligent manner, hit the motorcycle of the appellant from behind. As a result of the accident, the appellant had suffered multiple injuries and he was taken to GMC Hospital. Later on, he was shifted to Patna for better treatment. In his written statement, the appellant had stated that he had sustained permanent disablement to the extent of 50% and had also suffered loss of earning capacity more than 70%. It was projected that prior to the accident, the appellant had used to earn Rs.8,000/-to 10,000/-per month. The respondents No. 1 and 2 had contested the claim case by filing their written statement. The respondent No. 3 i.e. United India Insurance Co. Ltd., had denied its liability as well as the statements made in the claim petition on the ground that the amount of compensation claimed by the appellant was highly exaggerated and the respondent No.3 had put the appellant to strict proof of his claim. 3. In respect of the claim petition, the appellant had examined himself as (PW.1) and had also examined the doctors as PW.2 and PW.3. The appellant had exhibited following documents, viz., Accident Information Report (Ext.1), Certified copy of the FIR (Ext.2), Discharge slip (Ext.3) Medical/pathology/diagnosis reports [Ext.4(1) and 4(2)], Medical prescriptions [Ext.5(1) to 5(3)], Cash memos and vouchers [Ext.6(1) to 6(93)], Railway Ticket [Ext.7(1) to 7(3)], Medical certificate and other medical papers [Ext.8(1) to 8(4)], Disability Certificate (Ext.9) and Charge-sheet (Ext.10). The respondents had not adduced any rebuttal evidence. 4. The respondents had not adduced any rebuttal evidence. 4. On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication: (i) Whether the alleged accident took place due to the rash and negligent driving of the driver? (ii) To what extent the claimant is entitled to receive compensation and by whom payable? 5. On the basis of the evidence on record, the learned Tribunal had held in respect of issue No.1 that the accident causing injury to the appellant had occurred due to rash and negligent driving of the offending vehicle and it was further held that the offending vehicle was insured with respondent No. 3 and, as such, the issue No.1 was decided in favour of the appellant. 5. In respect of issue No. 2, the learned Tribunal had held that on account of medical treatment, the appellant had incurred approximately an amount of Rs.58,000/-. Relying on the ‘disability certificate’ (Ext.9), it was held that the doctor (PW.2) had certified that the appellant had suffered permanent disability at 40% due to muscular weakness in left leg, pain and restriction of all movements in both knee and ankle following fracture. It was further held that the disability in the instant did not come under any of the clauses of Schedule-I of the WC Act. It was held that the appellant had not adduced any cogent evidence regarding his source of earning or as to how his earning has been affected and it was held that since the appellant was suffered partial disability of his leg, it would certainly have some adverse effect on is earning capacity and the appellant was held to be entitled to get some amount of pecuniary damages for disability alleged, besides medical expenses and, as such, the compensation was computed as follows: Pecuniary damages Medical expenses - Rs. 52,000/- Permanent Disability - Rs. 50,000/- Non-pecuniary damages Pain, shock & suffering - Rs. 20,000/- Loss of amenities of life - Rs. 20,000/- Total - Rs.1,42,000/- Therefore, a sum of Rs.1,42,000/- (Rupees One lakh forty two thousand only) was awarded in favour of the appellant together with interest at the rate of 6% from the date of filing of the claim petition, i.e. on 06.08.2002 till payment. The respondent No. 3 i.e. the United India Insurance Co. 20,000/- Total - Rs.1,42,000/- Therefore, a sum of Rs.1,42,000/- (Rupees One lakh forty two thousand only) was awarded in favour of the appellant together with interest at the rate of 6% from the date of filing of the claim petition, i.e. on 06.08.2002 till payment. The respondent No. 3 i.e. the United India Insurance Co. Ltd. was directed to pay the award within a period of 60 days from the date of order. 6. The learned counsel for the appellant submits that the appellant was 44 years of age on the date of the accident and he was doing business of supplying stone chips and sand and though he had no documents to prove such income, but his statement in the claim petition as well as in his evidence that he had an earning of Rs.8,000/- per month had not been disputed or disproved. It is submitted that as a result of the accident, the appellant had suffered 40% disability due to muscular weakness in left leg, pain & restriction of all movements in both knee and ankle following fracture. It is submitted that however, the learned Tribunal remained oblivious to the fact that in order to do business of stone chips and sand, it was required by the appellant to visit the suppliers as well as to visit the construction site where such materials were required to be dumped and he was required to visit various offices and work site to collect his payments and also to visit his suppliers to make payment. Therefore, with the suffering of 40% disability, not only he was entitled to the compensation, but the court was required to also consider the future prospects and the loss of earning, but the learned Tribunal had arrived at a finding that the appellant had not adduced any cogent evidence regarding his source of income or as to how his earning has been affected. Hence, he was held to be entitled to reimbursement of medical expenses of Rs.52,000/-and for permanent disability he was awarded a lump sum amount of Rs.50,000/-and towards pain, shock and suffering, he was awarded only Rs.20,000/-and on account of loss of amenities of life, he was awarded a sum of Rs.20,000/-only. 7. By referring to the case of Sanjay Verma Vs. 7. By referring to the case of Sanjay Verma Vs. Haryana Roadways, (2014)3 SCC 210 , it is submitted that victim in that case was held to be entitled to addition to the income on account of future prospects. It is submitted that a similar view was taken by the Hon’ble Apex Court in the case of V. Mekala Vs. M.Malathi & Anr, (2014)11 SCC 178 . By referring to the case of Sayed Sadique & Ors. Vs. D.M., United India Insurance Co. Ltd., (2014) 2 SCC 735 , it is submitted that not only the Hon’ble Apex Court had held the victim to be entitled to 50% increment in future prospects, but also held that a vegetable vendor in that case was not expected to provide document to prove his monthly income and, as such, it was held that the vegetable vendor in the said case was capable of earning Rs.6,500/-per month and by holding that the selling of vegetable includes procuring and retailing, requiring 100% mobility, the Hon’ble Apex Court had assessed functional disability at 85% for determining the loss of income. Referring to the case of Minu Raut & Anr. Vs. Satya Pradyumna Mohapatra & Ors., (2013)10 SCC 695 , it is submitted that the non-production of any documentary evidence to prove the monthly income of a driver, who was killed in the accident, the oral evidence of PW.1 was not accepted because he was not produced the evidence, was held to be erroneous and the Hon’ble Apex Court had held that the actual entitlement of salary of the deceased driver should have been taken at Rs.6,000/-per month. By also referring to the case of Narendra Singh Vs. Nishant Sharma, (2015)14 SCC 353, it is submitted that although the victim therein had claimed that he was earning a sum of Rs.2,000/-per month by imparting tuitions, the Hon’ble Apex Court arrived at a finding that minimum wage earned by skilled worker can be taken to be Rs.7,000/-per month and accordingly, the monthly income of the victim was taken to be Rs.7,000/-per month. It is submitted that a similar view was taken by the Hon’ble Apex Court in the case of Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmadabad Municipal Transport Service, (2013)16 SCC 719 , by holding that there is no restrictions that compensation could be awarded only up to the amount claimed by the claimant. It is submitted that a similar view was taken by the Hon’ble Apex Court in the case of Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmadabad Municipal Transport Service, (2013)16 SCC 719 , by holding that there is no restrictions that compensation could be awarded only up to the amount claimed by the claimant. Although in the said case, the claimants had claimed a compensation that the deceased was earning between Rs.4,000/-to Rs.5,000/-per month and the Hon’ble Apex Court had considered the income of the claimant to be Rs.5,000/-per month and a total compensation of Rs.16,96,000/-was awarded by considering compensation under various heads. 8. By referring to the following cases, (i) MCD Vs. Uphaar Tragedy Victim Association, (2011) 14 SCC 481 , (ii) Minu Raut & Anr. Vs. Satya Pradyumna Mohapatra & Ors., (2013) 10 SCC 695 , (iii) Josphine James Vs. United India Assurance Co. Ltd. & Anr., (2013) 16 SCC 711 , (iv) Sayed Sadique & Ors. Vs. D.M. United India Insurance Co. Ltd., (2014) 2 SCC 735 , (v) V. Mekala Vs. M. Malathi & Anr., (2014) 11 SCC 178 , (vi) Kalpana Raj & Ors. Vs. Tamil Nadu State Transport Corporation, (2015) 2 SCC 764 , (vii) Ashvinbhai Jayantilal Modi Vs. Ramkaran Ramchandra Sharma & Anr., (2015) 2 SCC 180 , (viii) Narendra Singh Vs. Nishant Sharma, (2015) 14 SCC 353, (ix) Golap Lata Goswami & Anr. Vs. Ajit Deka & Ors., 2016 (2) GLT 809, (x) Smti Paravabi Goswami (Sharma) & Ors. Vs. Nabiruddin Ahmed, 2015 (2) GLJ 289 and unreported case of Smt. Latika Choudhury & 3 Ors. Vs. Md. Imran Hussain & 2 Ors., MAC Appeal No. 192/2014 (date of order 09.08.2017), it is submitted that the Hon’ble Apex Court as well as this Court had enhanced the interest from 6% to 9%. By referring to the case of V. Mekala (supra) and Sayed Sadique (supra), it has been submitted that the Hon’ble Apex Court had held the claimant to be entitled to cost of litigation and therefore, the learned counsel for the appellant has also prayed for the cost of appeal. Therefore, the learned counsel for the appellant prays for enhancement of the award in accordance with the ratio laid down by the Hon’ble Apex Court as referred herein before. 9. Therefore, the learned counsel for the appellant prays for enhancement of the award in accordance with the ratio laid down by the Hon’ble Apex Court as referred herein before. 9. Per-contra, the learned counsel appearing for the respondent No. 3 has submitted that there was no evidence at all from the appellant to prove his entitlement to any further compensation. It is submitted that the doctor (CW.2) had not treated the appellant. At the relevant time, he was merely working as a Casualty Officer and he referred the patient to the orthopedic wards and hence, his evidence was not at all relevant for the purpose of enhancing the award. By referring to the evidence of another doctor (CW.3), it is submitted that the said doctor never gave any treatment to the appellant and therefore, he was a “ready to issue certificate” doctor, and it is submitted that as the said CW.3 had not provided any treatment to the appellant, no case was made out for enhancement of the award. It is also submitted that the appellant had received his treatment at Patna, but the doctors who had treated him at Patna were not summoned to depose in the case and therefore, there is nothing on record to show the injury suffered was not curable and hence, according to the learned Counsel for the respondent, it was not a case where any permanent disability had been suffered by the appellant. Hence, it is submitted that this is not a case for enhancement of the award. 10. The only point of determination which arises in the present appeal is WhetherthereisanyscopeforenhancementoftheawardpassedbythelearnedTribunal? 11. It is seen from the case of (i) Minu Raut(supra), and (ii) NarendraSingh (supra), although the claimants in the said cases had stated that their income was lower, but the Hon’ble Apex Court taking a overall and holistic view on the matter, held that the claimants therein were entitled to just and fair compensation and had taken a view that the Apex Court was not bound by the claim made by the claimants. In the present case in hand, as per the discharge slip (Ext.3), issued by the renowned orthopedic surgeon of Patna, the condition of appellant is recorded as follows: “A case of multiple injuries due to RTA associated with: - Compound fracture (left) tibia - Pottis fracture (right) tibia - Stitched wound over scalp (left) hand - With history of unconsciousness.” - On 10.05.2001, the appellant was treated under S/A through wound debridgement, removal of loose pieces of bone + stabilization of (left) tibia with ilizarov’s ring fixation done with upper tibirl corticotomy. On 18.05.2001, bone transport started. - On 20.07.2001, under S/A, docking of fracture side (left) tibia done.” (NB: Errors may creep in while typing medical terms from hand-written doctor’s prescription/ certificate.) 12. However, on a perusal of the medical records, the prescriptions, vouchers etc. available at Ext.3 to Ext.9, there is no record of any X-Ray or any certificate from the treating doctor showing that after the treatment was availed by the appellant there was any permanent disability. In the present case, the accident had taken place on 04.05.2001 at about 4.15 pm. A claim petition under Section 166 of the MV Act was filed on 05.08.2002. However, the certificate of disability was obtained by the appellant from the doctor (CW.3) on 24.03.2006, i.e. about 4 years after filing of the claim petition. It would be pertinent to mention herein that the appellant (CW.1) had examined himself first on 15.09.2004 by submitting his evidence-on-affidavit and on his cross-examination by the respondent No. 3, the appellant (CW.1) had stated that he was paying income tax. Hence, this is not the case where the appellant did not have any document to prove his income, but this was a case where the appellant is found to have concealed his income tax returns for the reasons best known to him. Thus, this is found to be a case where the appellant was having his income tax records, but he has withheld the same. Even in this appellate stage, there has been no attempt to produce the income tax record to show the income tax. There is also no statement on oath to state that the appellant was not paying any income tax, but that his statement made during his cross-examination was wrongly recorded. Even in this appellate stage, there has been no attempt to produce the income tax record to show the income tax. There is also no statement on oath to state that the appellant was not paying any income tax, but that his statement made during his cross-examination was wrongly recorded. After his first round of evidence, the appellant then made a prayer for his re-examination as CW.1 for further evidence, and such a prayer was allowed by the learned Tribunal by order dated 10.04.2006, and having availed adjournments on several dates, the said medical certificate (Ext.9) was obtained and thereafter, the evidence-on-affidavit of the said doctor (CW.3) was submitted. 13. However, in course of fresh evidence tendered by the appellant, the appellant had examined three witness, including himself (CW.1) and two doctors (CW.2 and CW.3). This time, the respondent No.3 did not cross-examine any of the three witnesses. Be that as it may, from the exhibits on record, it is discernable that the doctor (CW.3), who had issued the disability certificate (Ext.9) had never treated the appellant at any point of time. However, just prior to giving evidence in this case on 14.11.2007, the said CW-3 had issued the certificate on 23.04.2007 (Ext.9). Thus, this Court does not proposed to rely on the said certificate (Ext.9) as it is evident that the said certificate (Ext.9) is a tailor made certificate to suit the needs of the appellant. Without any X-Ray plate and a supporting X-Ray report by a competent radiologist, the contents of disability certificate by a doctor, who had never treated the appellant, does not inspire the confidence of this Court and, as such, the correctness of the said medical certificate is not only doubted, but the same is discarded because it was issued by a “ready-to-issue-certificate” doctor. 14. Under the circumstances, there is no material before this Court to find fault with the finding and the resultant award passed by the learned Tribunal. 15. It is seen that the Hon’ble Apex Court in the various case citations referred above has held that for few occupations, it is not possible for the claimant to produce any document to substantiate his monthly income. In the case of Sayed Sadique(supra), it was held that the victim was reasonable capable of earning Rs.6,500/-per month. 15. It is seen that the Hon’ble Apex Court in the various case citations referred above has held that for few occupations, it is not possible for the claimant to produce any document to substantiate his monthly income. In the case of Sayed Sadique(supra), it was held that the victim was reasonable capable of earning Rs.6,500/-per month. In the case of Minu Raut(supra)although the appellants were claiming for Rs.5,000/-as monthly salary, but the Hon’ble Apex Court had held that the actual entitlement should have been taken at Rs.6,000/-per month. Similarly, in the case of Narendra Singh (supra), although it was projected that the appellant was earning Rs.2,000/-per month, but the Hon’ble Apex Court had held that the skilled workers would have earned Rs.7,000/-per month and accordingly, the income of the victim there was taken to be Rs.7,000/-per month. Similarly, in the case of Sanobanu Nazirbhai Mirza (supra), the Hon’ble Apex Court took a view that the monthly income of the deceased would have Rs.5,000/-per month. Under the circumstances, in the absence of any proof of income, although the learned Tribunal had held that the appellant had an earning of Rs.5,000/-per month, but in the present case in hand, the appellant, in his cross examination in the year 2004 had clearly stated that he was income tax payee. Thus, to overcome the effect of his earlier evidence and statements made in his cross examination, the appellant had asked for re-examination, which was allowed, but the previous evidence was not expunged, as such, this Court is in no position to hold that the appellant had no document to prove his income. Moreover, in the present case, as the disability certificate (Ext.9) has been discarded by this Court, the appellant has not been able to show that he has suffered any partial disablement to the extent of 50%. Hence, this is not a case where the appellant can be said to have proved to his entitlement to any enhancement of award. 16. Considering the fact that in the claim petition filed on 06.08.2002, there was no plea in the claim petition that there has been loss/reduction of income. Even on 15.09.2004, when the appellant had first examined himself as CW.1, he had not taken the plea of loss/reduction of his income. 16. Considering the fact that in the claim petition filed on 06.08.2002, there was no plea in the claim petition that there has been loss/reduction of income. Even on 15.09.2004, when the appellant had first examined himself as CW.1, he had not taken the plea of loss/reduction of his income. Therefore, in the considered opinion of this Court, the evidence of loss of 70% income without such plea having been taken in the claim petition, cannot be accepted as a justifiable ground to enhance the compensation. As mentioned herein before, in this case, the appellant had re-examined himself as CW.1 on 02.06.2007, only after obtaining a certificate (Ext.9) from the doctor (CW.3), wherein the obliging doctor had certified that the appellant had suffered a loss of earning capacity. Therefore, five years after filing of the claim petition, at the time of his re-examination on 02.06.2007, the appellant had taken a plea on reduction of his earning capacity. There is no evidence to the effect that immediately after the accident there was any reduction of the earning capacity of the appellant. Therefore, this Court is of the view that the medical certificate (Ext.9) was a tailor made certificate so as to enable the appellant to take a plea of loss of earning capacity, which was not the case of the appellant in his claim petition. 17. Moreover, it would be pertinent to mention herein that when the appellant was first discharged from hospital, he had exhibited the said discharge slip issued on 30.07.2001 as Ext.3. However, for the reasons best known to him, the appellant has chosen not to produce the discharge slip for his hospitalization for a period from 07.03.2002 to 17.03.2002 and again on 01.06.2002 to 10.06.2002. Therefore, the condition of the appellant at the time of his discharge from the hospital at Patna is not found to be available on record. There is also no explanation why the appellant did not obtain disability certificate from the State/ District Medical Board constituted for such purpose. Therefore, the cumulative effect of the above discussions are that this Court has no material to accept the contents of medical certificate (Ext.9) as correct. There is also no explanation why the appellant did not obtain disability certificate from the State/ District Medical Board constituted for such purpose. Therefore, the cumulative effect of the above discussions are that this Court has no material to accept the contents of medical certificate (Ext.9) as correct. Therefore, in view of the foregoing discussions, the point of determination formulated above is answered in the negative and against the appellant by holding that no case is made out for interference with the impugned judgment and award and that no case is made out for enhancement of the award. 18. However, considering the fact that the appellant had suffered the accident on 12.05.2001, and that he had been under treatment at Patna between 07.03.2002 to 17.03.2002 and again on 01.06.2002 to 10.06.2002, this Court is inclined to assess the loss of income of the appellant for 13 (thirteen) months. Considering that the appellant had an income of Rs.5,000/-per month, he is found to be entitled to a sum of Rs.65,000/-(Rupees Sixty five thousand only) towards compensation for loss of income for the said 13 (thirteen) months. 19. By relying on the above referred case law citations on interest, this Court is inclined to enhance the interest from 6% to 9% per annum, which shall be calculated from expiry of 60 days from the date of judgment and order dated 12.02.2010 and not from 06.08.2002, the date of filing of the claim petition as per the award because the respondent No. 3 is not found to have caused any delay whatsoever in the disposal of the claim petition. 20. The appeal stands partly allowed by enhancing the award by Rs.65,000/-(Rupees Sixty five thousand only) as indicated above. The respondent No.3 shall deposit the enhanced award along with interest within a period of 45 (forty five) days from today. The appellant shall be entitled to adjustment of payment, if any, made on account of ‘no fault liability’, or on account of part payment of compensation and interest, etc. 21. The parties are left to bear their own cost for this appeal. 22. Let the LCR be returned back.