JUDGMENT 1. Heard Mr. R.K. Bhatra, the learned counsel for the appellant as well as Mr. S. Chamaria, the learned counsel appearing for the respondent No.1/ claimant, as well as Mr. S.K. Borkataki, the learned counsel for respondent No.2 i.e. owner of the offending vehicle. 2. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the order and award dated 01.06.2017, passed by the learned Member, Motor Accident Claims Tribunal, Nagaon in MAC Case No. 128/2015, thereby directing the appellant to satisfy the award of Rs.13,33,202/- in favour of the respondent No.1 within 3 months, failing which the compensation would bear interest at the rate of 7% p.a. 3. The respondent No.1 is the claimant before the learned Tribunal. The case projected by the respondent No.1 was that on 18.10.2014 at about 5.20 pm while he was going towards Nagaon on his bicycle on left side of the road, the offending vehicle (truck) bearing registration No. AS-02-C-1999 knocked him from behind. It was claimed that the driver of the offending vehicle was driving in a rash and negligent manner and that as a result of the accident, the respondent No.1 had suffered grievous injuries and, as such, he filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. 4. The appellant contested the claim petition by filing written statement. The age, income and occupation of the respondent No.1 was denied. It was also stated that the driver of the offending vehicle did not have a valid licence, as such, they were not required to indemnify the owner of the vehicle. The respondent No.2 did not contest the claim petition. 5. Upon pleadings, the following issues were framed for adjudication of the claim petition:- 1. Whether the claim petition is maintainable? 2. Whether the accident occurred due to rash and negligent driving of the driver of vehicle No. AS-02/C-1999 (truck)? 3. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? 4. To what relief/ reliefs are the parties entitled to? 6. The respondent No.1 adduced his own evidence as PW-1 and he had examined the S.D.M.O. in the office of the Joint Director of Health, Nagaon as PW-2. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? 4. To what relief/ reliefs are the parties entitled to? 6. The respondent No.1 adduced his own evidence as PW-1 and he had examined the S.D.M.O. in the office of the Joint Director of Health, Nagaon as PW-2. The respondent No.1 had exhibited the following documents, viz., (1) Accident Information Report (Ext.1), (2) Disability Certificate (Ext.2), (3) Discharge Certificate of Marwari Hospital & Research Centre (Ext.3), (4) Prescription of Dr. N.K. Baidya, Patna (Ext.4), (5) Prescription of Dr. Bipul Borthakur, Dibrugarh (Ext.5), (6) Investigation Reports, prescriptions, cash-memos, copy of PAN Card, Income Tax Returns, Income & Expenditure Account, X-Ray reports (Ext.6 to 199), X-Ray plates (Material Exhibits No. 1 to 20). The appellant had examined one Biplabjit Rajkumar, the Branch Manager of the appellant as DW-1, who had exhibited the following documents, viz., (1) Investigator report (Ext.A), (2) Statement of claimant (Ext.B), (3) Statement of employee (Ext.C). 7. In respect of issue No.1, the learned Tribunal held that as the respondent No.1 had sustained injuries in the accident that had occurred due to rash and negligent driving of the offending vehicle and that the owner, driver and the insurer of the offending vehicle were impleaded, the claim petition was maintainable. 8. In respect of issue No.2, it was held that due to the accident, the respondent No.1 sustained grievous injuries on different parts of his body including his right leg and that he was treated at the hospital at Guwahati from 18.10.2014 to 28.10.2014 and that due to complications, he was again admitted in the said hospital from 07.11.2014 to 14.11.2014. It was further held that during the cross- examination, the defence could not assail the evidence of the respondent No.1 that the accident happened due to fault of rash and negligent driving of the offending vehicle by the driver. It was also held that the insurance could not establish that the accident did not occur due to rash and negligent driving of the offending vehicle by its driver. Hence, the issue was decided in the affirmative in favour of the respondent No.1. 9. Issues No.3 and 4 were taken up together. On the basis of Ext.3, Ext.4, Ext. It was also held that the insurance could not establish that the accident did not occur due to rash and negligent driving of the offending vehicle by its driver. Hence, the issue was decided in the affirmative in favour of the respondent No.1. 9. Issues No.3 and 4 were taken up together. On the basis of Ext.3, Ext.4, Ext. 6 to Ext.8, Ext.9 and Ext.10 to Ext.62 the learned Tribunal arrived at a conclusion that the respondent No.1 had sustained Grade-III compound comminuted fracture of upper end of right tibia and proximal shaft tibia, which was treated with internal fixation, screws and external nail fixation. The learned Tribunal had also held that as per testimony of the respondent, he was doing business and earned Rs.2,28,984/- per annum and he had exhibited his Income Tax Returns for the year 2010-11, 2011-12, 2012-13 and 2013-14. The respondent No.1 had also deposed that as per Ext.2 proved by one Doctor member of the Medical Board, the District Medical Board had assessed the disability as 45%. However, as there was no orthopedic surgeon was present in the Medical Board and no organ wise assessment was shown, the learned Tribunal had assessed the disability as 30%. The compensation was assessed by quantifying the net income as Rs.2,28,544/- i.e. Rs.2,28,984/- less Rs.440/-, being income tax paid). Relying on the case of Sarla Verma, (2009) 6 SCC 121 , the loss of income was quantified at Rs.2,28,544/- X 15 X 30/100 = Rs.10,28,448/-. The compensation payable by the appellant herein under various heads was as follows:- a. Loss of Income: Rs.10,28,448/- b. Medical expenses: Rs.1,39,754/- c. Loss of expectancy: Rs.30,000/- d. Loss of amenities of life: Rs.30,000/- e. Cost of special diet: Rs.15,000/- f. Expenditure of attendant: Rs.15,000/- g. Conveyance expenditure: Rs.15,000/- h. Total: Rs.13,33,202/- 10. The learned counsel for the appellant has submitted that the respondent No.1 did not prove any document to show that he had been given initial treatment at hospital at Guwahati and, as such, it is submitted that without any proof being tendered for his initial treatment, the respondent No.1 could not prove the nexus with his treatment from 18.10.2014 to 28.10.2014 and thereafter from 07.11.2014 to 14.11.2014. It is submitted that as per the evidence on record, more specifically from the cross examination of the respondent No.1 and Ext.B and Ext.C, the appellant had established and proved that the income proved through income tax record was not reliable because on the date of the accident, the respondent No.1 was not doing his own business but he was actually rendering service at a firm under the name and style of M/s. Assam Glass House, Nagaon as glass cutter, drawing salary of Rs.8,000/- per month. Accordingly, it is submitted that the respondent No.1 would be entitled to compensation in terms of Schedule-II of Motor Vehicles Act, 1988 as well as Sec.3 and 4 and Schedule-I and IV of the Employees Compensation Act, 1923 . In support of his submissions, the learned counsel for the appellant had relied on the following case citations, viz., a. Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 . b. New India Assurance Co. Ltd. Vs. Md. Abdul Kasem & Ors., MANU/GH/ 0430/2017. c. National Insurance Co. Ltd. Vs. Robin Boro, MANU/GH/0605/2017. 11. Per contra, the learned counsel for the respondent No.1 has made his submissions for sustaining the award passed by the learned Tribunal. It is submitted that the learned Tribunal had considered the fact that there was no orthopedic doctor in the District Medical Board and therefore, although as per the Disability Certificate (Ext.2), the respondent No.1 was found to have suffered 45% disability, the learned Tribunal had assessed the disability of the respondent No.1 at 30%. It is submitted that the District Medical Board had examined the respondent No.1 and the said duly constituted Board had issued a Disability Certificate (Ext.2) and that the manner in which the Medical Board was constituted was not within the control of the respondent No.1, as such, the said certificate cannot be discarded merely because there was no orthopedic doctor available in the Board. It is also submitted that the appellant had neither cross- examined the PW-1 or the doctor (PW-2) on (i) the nature of injury suffered by the respondent No.1, and (ii) on medical certificate of disability (Ext.2). 12. It is further submitted that there was no evidence of rebuttal by the appellant and therefore, the appellant has not been able to make out a case for interference in this appeal. 12. It is further submitted that there was no evidence of rebuttal by the appellant and therefore, the appellant has not been able to make out a case for interference in this appeal. It is also submitted that as income tax record was duly proved as Ext.188, Ext.191, Ext.194 and Ext.196, which disclosed that the taxable income of the respondent No.1 was Rs.1,66,417/- for assessment year 2010-11, Rs.1,66,372/- for assessment year 2011-12, Rs.1,66,792/- for assessment year 2012-13 and Rs.2,04,168/- for assessment year 2013-14 respectively, the said evidence cannot be discarded on the basis of evidence of DW- 1 and Ext.A, Ext.B and Ext.C respectively. It is also submitted that the learned Tribunal had rightly computed and awarded compensation on the basis of pecuniary and non- pecuniary damages. In support of his submissions, the learned counsel for the respondent No.1 had placed reliance on the following cases:- a. Sandeep Khanuja Vs. Atul Dande & Ors., MANU/SC/0108/2017. b. Raj Kumar Vs. Ajay Kumar & Anr., (2011) 1 SCC 343 . c. United India Insurance Co. Ltd. Vs. Indiro Devi & Ors., MANU/SC/ 0678/2018. 13. The learned Counsel for the respondent No.2 has submitted that he is present only to safeguard the interest of the respondent No.2, because the offending vehicle was duly insured with the appellant. 14. Thus, three broad points which have been urged by the learned counsel for the appellant, are the only points of determination in this case, which are as follows'- i. Whether in the absence of proof of documents of initial treatment, the respondent No.1 could establish the nexus of his treatment from 18.10.2014 to 28.10.2014 with his treatment from 07.11.2014 to 14.11.2014, and whether the decision of the learned Tribunal is vitiated for the said reason? ii. Whether the learned Tribunal ought to have discarded the income of the respondent No.1 as shown in the Income Tax return of the respondent No.1 and whether the award passed by the learned Tribunal is vitiated by not considering the respondent No.1 to be a glass cutter in M/s. Assam Glass House? iii. Whether the learned Tribunal had erred in passing the impugned award which is in excess of compensation as calculated as per Schedule-II of Motor Vehicles Act, 1988 as well as Sec.3 and 4 and Schedule-I and IV of the Employees Compensation Act, 1923. On point of determination No.(i): 15. iii. Whether the learned Tribunal had erred in passing the impugned award which is in excess of compensation as calculated as per Schedule-II of Motor Vehicles Act, 1988 as well as Sec.3 and 4 and Schedule-I and IV of the Employees Compensation Act, 1923. On point of determination No.(i): 15. The learned counsel had submitted that documents for initial treatment were not submitted. In this regard, the PW-1 had stated in his cross examination that he had become unconscious to some extent, not totally, on being hit alongwith his bicycle by the truck from behind. Thereafter, the public had shifted him to hospital, where he was treated as an outdoor patient. The respondent No.1 was then shifted to one nursing home. He had stated that he was not provided with any document to show that he was treated at Nagaon Civil Hospital. He had also stated that on the same day, without any treatment, he was shifted to a hospital at Guwahati, where he had been treated for 10 days from 18 th October to 28 th October. He had stated that he was not furnished with admission documents of the said hospital, but he was again admitted in the same hospital on 7 th November, for which he had produced Ext.7. Thus, it is seen that he was admitted to the civil hospital at Nagaon by the public where the respondent No.1 was treated as an out-door patient and then he was shifted to another hospital. The prescriptions and medical reports leave no room for doubt that the respondent No.1 did not suffer any of Grade-III comminuted fracture of right tibia, fracture of upper end of tibia with in situ immobilizer, and was treated in respect of fracture proximal shaft tibia with screws and external nail fixation, etc. Moreover, in the written statement, the appellant had not made any statement to the effect that documents relating to initial treatment were not produced, which is fatal and it is further seen that in course of his cross examination no suggestion was given to the PW-1 that without medical documents of initial treatment, the claim was liable to be dismissed. In course of cross- examination, the appellant was not able to demolish the evidence of PW-1 with regard to the nature of injuries suffered by the respondent No.1. In course of cross- examination, the appellant was not able to demolish the evidence of PW-1 with regard to the nature of injuries suffered by the respondent No.1. Thus, the non- production of document of initial treatment is not fatal in this case because the respondent No.1 was admitted to the hospital by public. 16. It is seen that in his cross examination, the PW-1 was not given any suggestion to the effect that his treatment from 18.10.2014 to 28.10.2014 had no nexus with his subsequent treatment from 07.11.2014 to 14.11.2014. Similarly, although the respondent No.1 had exhibited the Disability Certificate (Ext.2), Discharge Certificate of Marwari Hospital & Research Centre (Ext.3), Prescription of Dr. N.K. Baidya, Patna (Ext.4), Prescription of Dr. Bipul Borthakur, Dibrugarh (Ext.5), Investigation Reports, prescriptions, cash-memos, copy of PAN Card, Income Tax Returns, Income & Expenditure Account, X-Ray reports (Ext.6 to 199), and X-Ray plates (Material Exhibits No. 1 to 20), but there is no cross- examination to suggest to PW-1 that the initial treatment to him had no nexus with other exhibited medical documents or the disability certificate (Ext.2). 17. Thus, it cannot be held that by way of cross- examination, the evidence of the PW-1 in relation of his injury suffered was disproved. Accordingly, the point of determination No.1 is answered in the affirmative and against the appellant by holding that even in the absence of proof of documents of initial treatment, the respondent No.1 could establish the nexus of his treatment from 18.10.2014 to 28.10.2014 with his treatment from 07.11.2014 to 14.11.2014, and the decision of the learned Tribunal is not found to be vitiated for the said reason. On point of determination No. (ii): 18. The evidence of DW-1 discloses that he had exhibited three documents, i.e. Investigators report (Ext.A), (2) Statement of claimant (Ext.B), (3) Statement of employee (Ext.C). However, the said DW-1 did not prove the signature of Md. Mahir Uddin, the insurance investigator. The paragraph containing the conclusion of the said investigator in his report (Ext.A) is reproduced as follows - 'Conclusion: After my discussion with all and collection of all authenticity documents including the certified copy of GDE, C/S, Police Report, depend of my finding the above circumstances the accident is genuine. Mahir Uddin, the insurance investigator. The paragraph containing the conclusion of the said investigator in his report (Ext.A) is reproduced as follows - 'Conclusion: After my discussion with all and collection of all authenticity documents including the certified copy of GDE, C/S, Police Report, depend of my finding the above circumstances the accident is genuine. The investigation report is issued WITH OUT PREJUDICE.' Thus, it is seen that although the investigator had mentioned in his report that the respondent No.1 was employed as glass cutter in M/s. Assam Glass House, but in the report (Ext.A), the said investigator did not give any finding as to where the respondent No.1 was working on the date of the accident. 19. It is seen that the purported statement of the respondent No.1 before the investigator was marked as Ext.B. The DW-1 did not state that he was a witness to the recording of statement of the respondent No.1. Moreover, the DW-1 had also not proved the signature of the respondent No.1 or the witnesses to the said writing. The appellant did not make any effort to secure the insurance investigator, or the two witnesses to Ext.B as their witness to prove the signature and contents of Ext.A and signature and the contents of Ext.B, or the identity of the person in whose hand-writing Ext.B was recorded. Ext.C is the purported writing by one Shyam Lal Jalan, who had written therein that the respondent No.1 was glass-cutting worker in Assam Glass House. However, the appellant had not called the writer and signatory of Ext.C to prove the signature, contents and writing of Ext.C. On a perusal of the said Ext.C, it is seen that the writing and signature thereon are by way of ball- pen, but the blue shade of text is different that the blue shade by which signature of writer is given. The writer has not used the rubber stamp of stationery of the firm, M/s. Assam Glass House. It is too well settled that mere marking of a document as exhibit is no proof of the contents and signature of such a document. Thus, in the absence of examining the signatories of Ext.A, Ext.B and Ext.C, the Court is constrained to hold that the appellant had miserably failed to prove the contents thereof. 20. It is too well settled that mere marking of a document as exhibit is no proof of the contents and signature of such a document. Thus, in the absence of examining the signatories of Ext.A, Ext.B and Ext.C, the Court is constrained to hold that the appellant had miserably failed to prove the contents thereof. 20. The learned counsel for the appellant had submitted that in cross- examination, the respondent No.1 (PW-1) had admitted that he had deposed falsely regarding his employment. However, the Court is unable to accept such submission. Therefore, it would be relevant to extract the relevant portion of cross- examination of PW-1:- 'I am working as a part time employee at Assam Glass House but as per C.P. I am a busiman (sic.) by profession. It is not a fact that - Insurance Company person came to me to take my statement and I was found in the said establishment as glass cutter, I have depose falsely, falsely stated that I require a helper for my daily activities & one person with Rs.3,000/- p.m. has been engaged by me to help me in day to day activities.' 21. From the above extracted portion of cross- examination of PW-1, it appears that the entire last extracted paragraph was denied by the PW-1. The words 'I have deposed falsely' cannot be separately read so as to construe the said statement as if the PW-1 had made an admission that his statement in his examination- in- chief was a false statement as regards his employment. Thus, the manner in which Ext.A, Ext.B and Ext.C was proved, renders the said three documents as 'not proved' in accordance with law. Thus, the Court is unable to agree with the submissions made by the learned counsel for the appellant that the income tax records (Ext.188, Ext.191, Ext.194 and Ext.196) were not reliable as regards proof of income. 22. Therefore, the second point of determination is answered in the negative and against the appellant by holding that the learned Tribunal could not have discarded the income of the respondent No.1 as shown in the Income Tax return (Ext.188, Ext.191, Ext.194 and Ext.196) of the respondent No.1. Hence, the award passed by the learned Tribunal is not vitiated by not considering the respondent No.1 to be a glass cutter in M/s. Assam Glass House? 23. Point of determination No. (iii): 24. Hence, the award passed by the learned Tribunal is not vitiated by not considering the respondent No.1 to be a glass cutter in M/s. Assam Glass House? 23. Point of determination No. (iii): 24. In order to prove his disability, the respondent No.1 had examined the S.D.M.O., Jorhat, through whom disability certificate (Ext.2) was proved. It is seen that Ext.2 does not contain any writing by which the loss of earning capacity has been assessed. The disability certificate (Ext.2) issued by the District Medical Board did not mention in the said report whether the respondent No.1 suffered any functional disability. 25. In the case of Raj Kumar (supra), the Supreme Court of India has summarized the principles for assessing loss of earning capacity having regard to permanent disability. It would be relevant to quote paragraphs 12 to 19 thereof:- '12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 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 ability (this is also relevant for awarding compensation under the head of loss of amenities of life). 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. 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 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. 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. 15. 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. 16. 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. 17. 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. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 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. 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). (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.' 26. From the cross- examination of PW-2, it is apparent that the Medical Board that had issued Ext.2 did not have any orthopedic surgeon. In the case of Raj Kumar (supra), the Supreme Court of India had held that the disability certificate could not have been discarded by the High Court because the assessment was done by the Medical Board which consisted of orthopedic surgeon. Thus, in the present case in hand, as the Medical Board issuing the disability certificate (Ext.2) did not have any orthopedic surgeon, the said certificate cannot be accepted. 27. The learned Tribunal had assessed loss of earning capacity as 30% without assessing functional disability. The respondent No.1 has admitted in his cross- examination as PW-1 that he was working as a part time employee with M/s. Assam Glass House as glass cutter. The said work involves some amount of skill. Therefore, without assessment of functional disability, the loss of income cannot be correctly assessed. 28. As per the evidence- on- affidavit by the PW-1, he was doing business prior to the accident. There is no statement by PW-1 that after the accident, his business was closed or that there was no business income at all. Therefore, without assessment of functional disability, the loss of income cannot be correctly assessed. 28. As per the evidence- on- affidavit by the PW-1, he was doing business prior to the accident. There is no statement by PW-1 that after the accident, his business was closed or that there was no business income at all. It may be mentioned herein that as per the Balance- Sheet, computation of income and Income Tax returns (Ext.188 to Ext.198), the respondent No.1 only had business income. However, as per cross- examination of PW-1, he was doing part-time work as glass-cutter, which leads to an impression as if apart from business, the respondent No.1 is also doing part-time job. Thus, the inevitable conclusion of the Court is that if there was any loss of actual earning capacity of the respondent No.1, such loss was not proved by the respondent No.1. 29. In the case of Raj Kumar (supra), it is provided that injuries deemed to result in Permanent Total Disablement/ Permanent Partial Disablement, the percentage of loss of earning capacity shall be as per Schedule I under Workmen's Compensation Act, 1923. But this principle is made applicable if the claim petition was filed under Section 163A of the Motor Vehicles Act. However, if the claim is made under Section 166 of the Motor Vehicles Act, 1988 as per the ratio paid down in the case of Sandeep Khanuja (supra), application of multiplier method is held by the Supreme Court of India to have been approved as per the decision rendered in the case of U.P. State Road Transport Corporation & Ors. Vs. Trilok Chandra & Ors., (1996) 4 SCC 362 . In the present case in hand, as per the order-sheet of the learned Tribunal, as well as from the impugned order and award, the claim petition was filed under Section 166 of the Motor Vehicles A ct, 1988. Therefore, the point of determination No. (iii) is answered in the negative and against the appellant by holding that the learned Tribunal did not err in passing the impugned award without considering Schedule-II of Motor Vehicles Act, 1988 as well as Sec.3 and 4 and Schedule-I and IV of the Employees Compensation Act, 1923. Therefore, the point of determination No. (iii) is answered in the negative and against the appellant by holding that the learned Tribunal did not err in passing the impugned award without considering Schedule-II of Motor Vehicles Act, 1988 as well as Sec.3 and 4 and Schedule-I and IV of the Employees Compensation Act, 1923. However, the award was passed without taking into account the percentage of functional disability as propounded in the case of Raj Kumar (supra) and followed in the case of Sandeep Khanuja (supra), by relying upon disability certificate (Ext.2), which was constituted without orthopedic surgeon. 30. Therefore, in light of the discussions above, having held (i) that the Medical Board issuing the disability certificate (Ext.2) was not constituted with an orthopedic surgeon, (ii) that the learned Tribunal had assessed the loss of earning capacity without considering the functional disability by taking into account the business income but without taking into account the additional salary income of working as part-time employee of a private firm. Hence, the impugned order and award is liable to be set aside. However, this is found to be a fit case for remand of the claim petition, being MAC Case No. 128/2015 to the learned Member, Motor Accident Claims Tribunal, Nagaon, who is directed to frame two additional issues to the following effect:- a. Whether the percentage of disability suffered by the claimant has resulted in any functional disability, and if so, whether such functional disability is with reference to the whole body or whether it is only with regard to a limb? b. Whether the claimant has suffered any loss of income, and if so to what extent? 31. In deciding the said two additional issues, the learned Tribunal would grant reasonable opportunity to the parties to give additional evidence in respect of the disability and functional disability and loss of earning suffered by the respondent No.1. 32. In this regard, it is made clear that it may not be within the capacity of the respondent No.1 to get a Medical Board constituted with at least one orthopedic surgeon and a busy orthopedic surgeon may not be willing to give a report and then come to Tribunal to give evidence, as such, it would be open to the learned Tribunal to get the respondent No.1 examined by an orthopedic surgeon employed in Govt. Hospital to assess the disability including functional disability with reference to the whole body or whether it is only with regard to a limb. It is also provided that evidence of the doctor may preferably be recorded through an Advocate Commissioner at the chamber of the Doctor or by giving a specified time for attending the Tribunal instead of requiring them to attend the Tribunal at 10.30 am or 11.00 am and wait in the Tribunal for the entire day, as envisaged in paragraph 23 of the case of Raj Kumar (supra). Thereafter, the learned Tribunal shall assess the loss of earning capacity in light of the ratio laid down in the case of Raj Kumar (supra) and Sandeep Khanuja (supra). 33. Thus, this appeal stands partly allowed. The impugned order and award dated 01.06.2017, passed by the learned Member, Motor Accident Claims Tribunal, Nagaon in MAC Case No. 128/2015 is set aside. The said claim case is restored to the file of the learned Member, Motor Accident Claims Tribunal, Nagaon, for hearing the matter afresh in light of the discussions above by framing two additional issues, and to pass the award in accordance with law. An endeavour shall be made by the learned Tribunal to hear and dispose of the matter as expeditiously as possible, if required, by hearing the matter out of turn, and in any event, preferably within an outer period of six months from the date of receipt of record. 34. The Registry shall return the record of the learned Tribunal forthwith. 35. The appellant and the respondent No.1 shall appear before the learned Tribunal on 30.03.2020 and by producing a certified copy of this order, seek further instructions from the said learned Tribunal.