JUDGMENT (Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988, to enhance the award dated 16.07.2014 made in M.A.C.T.O.P.No.2672 of 2013 on the file of the Motor Accidents Claims Tribunal, (in the Court of III Small Causes) Chennai.) 1. This appeal has been filed by the appellant/injured claimant for enhancement of compensation. The Tribunal awarded compensation for a sum of Rs.3,98,017/- together with interest at the rate of 7.5% from the date of the claim petition till the date of deposit. 2. The averments in the claim petition is that on 26.01.2012 at about 6.20 hours while the claimant was riding a two wheeler bearing Reg.No.TN-22- AU-0784 from Selaiyur to Medavakkam from west to east direction, proceeding towards Kamarajapuram junction, at that time, a Jeep bearing Reg.No.TN-22- BL-7032 came in a rash and negligent manner from Medavakkam without giving any horn and dashed against the claimant's motorcycle, thereby, he sustained grievous injuries. The said Jeep was owned by the first respondent and insured with the second respondent-Insurance Company. The claimant filed a claim petition, claiming a sum of Rs.15,00,000/- as compensation in M.C.O.P.No.2672/2013 on the file of the Motor Accidents Claims Tribunal, (III Small Causes) Chennai as against the first and second respondents herein. 3. The 2nd respondent/Insurance Company filed counter before the Tribunal and contested the claim. 4. Before the Tribunal, the claimant examined himself as P.W.1 and Dr.Kalkura and Dr.Saichandran who treated the claimant were examined as P.W.2 and P.W.3 and marked 16 documents as Ex.P1 to Ex.P16 on the side of the claimant. On behalf of the respondents, no oral and documentary evidence were let in. 5. The Court below after considering the pleadings, oral and documentary evidence of both sides, awarded a sum of Rs.3,98,017/- under the following heads: S.No. Particulars Amount in Rs. 1. Loss of income 30,000/- 2. Transport to Hospital 10,000/- 3. Extra Nourishment 15,000/- 4. Damage to clothing 1,000/- 5. Medical Expenses 60,617/- 6. Attender Charges 6,000/- 7. Loss of Amenities 5,000/- 8. Pain and Suffering 30,000/- 9 Loss in marital and social status 10,000/- 10 Functional Disability Rs.6,000 X 12 X 16 X 20% 2,30 400/- Total 3,98,017/- Aggrieved over the same, the appellant/claimant has filed this appeal seeking enhancement of the compensation. 6. Damage to clothing 1,000/- 5. Medical Expenses 60,617/- 6. Attender Charges 6,000/- 7. Loss of Amenities 5,000/- 8. Pain and Suffering 30,000/- 9 Loss in marital and social status 10,000/- 10 Functional Disability Rs.6,000 X 12 X 16 X 20% 2,30 400/- Total 3,98,017/- Aggrieved over the same, the appellant/claimant has filed this appeal seeking enhancement of the compensation. 6. (a) According to the learned counsel for the appellant, the claimant was aged about 20 years and was working as an Accounts Assistant in Pearl Foundation and earned about a sum of Rs.9,000/- per month at the time of accident and the copy of B.Com degree certificate has been marked as Ex.P11. But, the Tribunal has erroneously fixed a sum of Rs.6,000/- as notional income. (b) The testimony of P.W.2 doctor is that the injured sustained fracture of right Zycomatic, fracture of 3 teeth, right TM Joints fibrosis, midline shift to left side resulting in deranged occlusion causing mastigatory dysfunction, muscular dysfunction, disfigurement and impaired facial expression and maxila facial bone fractures and assessed the disability at 35% + 25% + 10%. P.W.3-Doctor assessed the disability of 50% for the fracture in the skull and his testimony shows that the accident caused disfigurement of the right side of the face, and due to the brain contusion, the claimant developed right sided residual right hemiparesis and also right side of the upper limb and lower limb muscle power and tone reduced by 1 grade-4/5; the brain injury is causing headache and giddiness and activity in sun light causes pain and tenderness in the skull. But the Tribunal fixed the disability at 40% and overall converted the disability to whole body by (40+20=60%) 60/3 % which would comes to 20% which is very low. Further, the Tribunal erred in not awarding any amount under the head of future medical expenses and hence, prayed to enhance the compensation. 7. The learned counsel for the 2nd respondent-Insurance company would submit that the Tribunal after considering both the oral and documentary evidence, has awarded just compensation and hence, the well considered award of the Court below needs no interference. 8. The first respondent-owner of the Jeep was set ex parte before the Tribunal. 9. Heard the learned counsel for the appellant/claimant and the learned counsel for the second respondent/Insurance Company and perused the materials available on record. 10. 8. The first respondent-owner of the Jeep was set ex parte before the Tribunal. 9. Heard the learned counsel for the appellant/claimant and the learned counsel for the second respondent/Insurance Company and perused the materials available on record. 10. This appeal is by the injured claimant for enhancement of compensation mainly under the head, loss of earning capacity by following the guidelines and Gazette Notification of AIIMS, 1981 and 1986. The appellant counsel made his arguments on the nature of injuries and period of treatment underwent by him. 11. This court on anxious and careful consideration of the materials available on record, would make the following observations:- A) The Tribunal, on considering the nature of job performed by the claimant i.e., Accounts Assistant, pointed out that he has not produced any supportive evidence to prove his salary for a sum of Rs.9,000/- per month and so fixed a sum of Rs.6,000/- per month and arrived at loss of income for a period of 5 months as Rs.6000/- x 5months = Rs.30,000/-. B) In this connection, it is also relevant to look into the decision of the Supreme Court reported in (2014) 2 SCC 735 [Syed Sadiq and others Vs. Divisional Manager, United India Insurance Company Limited] wherein, the claimant is a vegetable vendor and sustained 85% functional disability in a motor accident and claimed compensation. The Supreme Court held that the claimant cannot be expected to produce documents to prove his monthly income and fixed his monthly income at Rs.6,500/-. Hence, by applying the above decision of the Honourable Supreme Court, this Court feels it appropriate to fix the income of the injured as Rs.6,500/- per month. 12. Learned counsel for the appellant also urged that compensation for loss of earning capacity due to permanent disability need be enhanced. It is submitted that the Tribunal, while considering the head injury, muscular dysfunction, disfigurement and impaired facial expression, maxila facial bone fractures and also fracture in the skull sustained by the claimant and the doctors' evidence, ought to have awarded reasonable compensation taking 100% Functional Disability. 13. On a perusal of the award, it transpires that the injured taken treatment as inpatient for nearly 28 days. The Discharge summary would go to show that he sustained post traumatic left gangliocapsular contusion, weakness in right upper limb and lower limb, lacerated wound over the face. 13. On a perusal of the award, it transpires that the injured taken treatment as inpatient for nearly 28 days. The Discharge summary would go to show that he sustained post traumatic left gangliocapsular contusion, weakness in right upper limb and lower limb, lacerated wound over the face. Ex.P.5 Scan report shows haemorhagic contusion, left ganglicapsular region, focal SAH in the right fronto parietal region and tentorial SDH. 14. P.W.2 Dr.Kalkura assessed the disability as 35% for the facial injuries. His testimony would go to show that due to fracture right zygomatic arch and 3 teeth fracture, right TM joint fibrosis, midline shift to left side resulted in deranged occlusion causing mastigatory dysfunction due to muscular dysfunction. Further it is evident that three was 25% post impaired functions and disfigurement and impaired facial expression and 10% disability for the fracture of teeth. 15. P.W.3 Dr.Saichandran assessed the disability of 50% for the fracture in the skull sustained by the appellant-injured. His testimony is that fractured bones are united in a compressed manner causing disfigurement of the right side of the face. Due to brain contusion, he developed right sided residual right hemiparesis and right and left lower limb is affected and muscle power and tone reduced by 1 grade – 4/5 brain injury which was resolved, but injured getting headache and giddiness and activity in the sun light causes pain and tenderness in the skull. 16. In the backdrop of the evidence, the tribunal, pointed out that the injury would cause functional disability, however, the Tribunal erred in taking the disabilities together and converting it to whole body as 60/3 and taken the functional disability as 20%, which in the considered view of this court, is not a proper determination. 17. The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages is to make good the pecuniary loss which is capable of being calculated in terms of money. Non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. Non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc. 18. The Honourable Supreme Court held that a person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned [ (2011) 1 SCC 343 [ Raj Kumar v. Ajay Kumar & Another]. Loss of earnings include Loss of earning during the period of treatment, Loss of future earnings on account of permanent disability, Future medical expenses. In serious cases of injury as in the present case, where there is specific medical evidence corroborating the evidence of the claimant showing that the injured is having functional disability, disfigurement, etc, this court is of the considered view that compensation is required to be granted for loss of future earnings on account of permanent disability. 19. In the case on hand, the functional disability, disfigurement, head injury and its consequences would go to show that there was virtually no enjoyment of life of injured. The partial disablement also affects the entire body. Brain injuries resulting in a personality change and disfigurement will cause much difficulty. 20. Cases of this nature requires this court to first decide whether there is any permanent disability and if so the extent of such permanent disability. With reference to the evidence of two doctors viz., P.W.2 and P.W.3, it is crystal clear that the disablement is permanent and the effect of such disablement on the functioning of the entire body is suffered by the person. With reference to the evidence of two doctors viz., P.W.2 and P.W.3, it is crystal clear that the disablement is permanent and the effect of such disablement on the functioning of the entire body is suffered by the person. The actual extent of permanent disability of the claimant based on the medical evidence has to be determined whether such permanent disability has affected or will affect his earning capacity. The loss of earning capacity is something that will have to be assessed with reference to the evidence in entirety. In such circumstances, reducing the disability percentage i.e. 35%+ 25% + 10% + 50% into one 60/3 as 20% by the Tribunal, cannot be accepted. 21. The whole idea is to put the claimant in the same position as he was in so far as money can. In the present case, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. For proper measure of compensation, taking an appropriate multiplier and computing the loss of earning capacity is the appropriate modification. 22. The functional impairment due to congenital, post disease or trauma is necessarily to be evaluated. Keeping in view the provisions of Persons with Disabilities (Equal opportunities Protection of rights and Full participation) Act 1995, guidelines for evaluation of following disabilities and procedure for certification was notified. As per the said guidelines, the function of one part cannot be replaced by other, therefore each functional part in itself is 100% and thus loss of function/ PPI of that part is taken as 100%. On the other hand, the whole body value cannot exceed 100%. Thus in case the impairment is seen in more than one function or body part, the mathematical sum may exceed 100 but total of body/individual cannot exceed 100%. Thus a total of one or all segments of body cannot exceed 100% in any situation. The guidelines shall be applied for determining the % of disability. If a doctor or a medical board makes an assessment there shall be no mistake in accepting the same, prima facie. However, if the assessment is doubted, it is necessary to cross-examine or cross-verify with the mode of assessment prescribed under the guidelines. 23. There is a need to know the real sufferer from a malingerer. If a doctor or a medical board makes an assessment there shall be no mistake in accepting the same, prima facie. However, if the assessment is doubted, it is necessary to cross-examine or cross-verify with the mode of assessment prescribed under the guidelines. 23. There is a need to know the real sufferer from a malingerer. Going by the entire records and going by the disability assessed by various doctors, one can infer that the petitioner's condition is worse than a person who had lost their beloved one in their family. Therefore, the assessment has to be computed appropriately. Therefore, in the light of the above principles, compensation under the head “loss of earning due to functional disability” is requantified as follows: Monthly Income : Rs.6,500/- Multiplier : 16 Disability : 100%. 6500/- x 12 x 16 x 100 % = Rs.12,48,000/-. Since this court modified the compensation as narrated above and granting Rs.12,48,000/- towards “Loss of earning due to functional disability”, the amount of Rs.30,000/- awarded by the Tribunal under the head “Loss of income” is hereby deleted. 24. Considering the injury, treatment and other attendant factors, this Court deems it fit to grant a sum of Rs.80,000/- under the head 'Future Medical Expenses'. Except the above modification, the compensation granted by the Tribunal under other heads, remains unaltered. 25. Considering all the above circumstances, the Award passed by the Tribunal is modified as follows:- Sl. No. Headings Amount Awarded by the Tribunal Rs. Amount awarded by this Court Rs. Award modified by this court. 1. Transport to Hospital 10,000/- 10,000/- Confirmed 2. Extra Nourishment 15,000/- 15,000/- Confirmed 3. Damage to clothing 1,000/- 1,000/- Confirmed 4. Medical Expenses 60,617/- 60,617/- Confirmed 5. Attender Charges 6,000/- 6,000/- Confirmed 6. Loss of Amenities 5,000/- 5,000/- Confirmed 7. Pain and Suffering 30,000/- 30,000/- Confirmed 8. Loss in marital and social status 10,000/- 10,000/- Confirmed 9. Loss of earning due to Functional Disability Rs.6500 X 12 X 16 X 100% 2,30,400/- 12,48,000/- Enhanced 10. Future Medical Expenses - 80,000/- Granted Total 3,98,017/- 14,65,617/- Enhanced 26. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.3,98,017 /- is hereby enhanced to Rs.14,65,617/- (Rupees fourteen lakhs sixty five thousand six hundred and seventeen only) together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.3,98,017 /- is hereby enhanced to Rs.14,65,617/- (Rupees fourteen lakhs sixty five thousand six hundred and seventeen only) together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The second respondent/ Insurance Company is directed to deposit the enhanced award amount now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the enhanced award amount along with interest and costs. Consequently connected miscellaneous petition is closed. No costs.