JUDGMENT : 1. Feeling aggrieved and dissatisfied by the judgment and award dated 30.11.2005 passed in Motor Accident Claims Petition No.867 of 1998 by learned Motor Accident Claims Tribunal (Aux.), Judge, Court No.13, Ahmedabad, the appellant – original claimant has preferred the present appeal under section 173 of the Motor Vehicles Act (“the Act” for short). 2. The original claim of the claimant was for Rs.20,00,000/-. However, the Tribunal has awarded a sum of Rs.8,34,420/- with 7.5% interest under the various heads as under : Future loss of income Rs.5,46,720/- Loss of income Rs.72,000/- Pain, Shock and Suffering Rs.50,000/- Tickets and travelling expenses Rs.11,769/- Medical treatment Rs.1,34,000/- Special diet and attendant charges along with transportation charges Rs.20,000/- Total Rs.8,34,420/- 3. It is the case of the claimant that on 30.8.1997 the claimant along with one Cleaner were going to Jaisalmer. The claimant being the driver was driving Swaraj Mazda truck loaded with ice-cream bearing No.GJ 1 T 7420. While the truck driven by the claimant reached near the village Nani Dau on Palanpur highway, at that time, another truck bearing registration No.DL 1 GB 1835 driven by its driver in rash and negligent manner came from opposite side and collided with the truck of the claimant. As a result thereof, the claimant sustained serious injuries on his legs and thereby immediately shifted to the Civil Hospital, Mehsana. Thereafter, the claimant was shifted to Vadilal Sarabhai Hospital at Ahmedabad from where the claimant was shifted to the hospital of Dr.Bharat C.Shah for further treatment. The claimant was treated as indoor patient between 1.9.1997 and 6.3.1998. During that period, six operations were performed. Thereafter, the claimant was admitted as indoor patient in Swami Shantiprakash Karnavati Hospital for a period between 20.3.1998 and 10.6.1998 wherein under the treatment of Dr.Ashok Sajnani further four operations were performed. However, thereafter the claimant was advised to go to Akola for further treatment for the purpose of infection occurred during the long treatment. As per the advise, the claimant was admitted in hospital at Akola for a period between 10.5.1999 and 24.9.1999 under the treatment of Dr.Milind Chaudhary who performed one operation on 11.5.1999. Again from 8.7.1999 to 19.7.1999 the claimant was treated at Akola by Dr.Milind Chaudhary in the hospital as indoor patient. As per the advise, the claimant was admitted in hospital at Akola for a period between 10.5.1999 and 24.9.1999 under the treatment of Dr.Milind Chaudhary who performed one operation on 11.5.1999. Again from 8.7.1999 to 19.7.1999 the claimant was treated at Akola by Dr.Milind Chaudhary in the hospital as indoor patient. Again, the claimant was admitted in the hospital at Akola for a period between 8.8.1999 and 20.8.1999 and thereafter, on 31.8.2000 another operation was performed in the hospital at Akola. Because of some further complication, again the claimant was admitted in the hospital as indoor patient between 9.1.2002 and 11.1.2002 wherein another operation was performed on 10.1.2002. 4. In view of the aforesaid serious injuries and prolonged treatment, the claimant has approached the learned Tribunal by way of an application under section 166 of the Act seeking, inter alia, compensation for the injuries so received arising from the motor vehicular accident. 5. Learned Tribunal, after having considered the evidence on record, held the driver of the offending truck as sole responsible for the accident in question. Learned Tribunal, thereafter, proceeded to award compensation by considering the income of the claimant at Rs.4500/- per month. Learned Tribunal, having considered the age of the claimant at 40 years, adopted multiplier of 17. Accordingly, learned Tribunal awarded a sum of Rs.5,46,720/- under the head of loss of future income. Learned Tribunal has awarded a sum of Rs.72,000/- under the head of loss of income considering the period of 16 months the appellant could not work because of injuries and treatment. Learned Tribunal awarded Rs.50,000/- under the head of pain, shock and suffering. Learned Tribunal also awarded a sum of Rs.11,769/- under the head of tickets and travelling expenses and further awarded Rs.20,000/- under the head of special diet and attendant with transportation charges. Thus, in all, learned Tribunal has awarded a sum of Rs.8,34,420/- by way of compensation with 7.5% interest from the date of application till realization. 6. Being aggrieved and dissatisfied by the aforesaid, the appellant has approached this Court by way of this appeal seeking enhancement of compensation. 7. I have heard learned advocate Mr.Kartik Rawal for the appellant and learned advocate Mr.Sunil B.Parikh for the insurance company. 8. Learned advocate Mr.Rawal for the appellant submits that the award passed by learned Tribunal is on lower side and cannot be said to be just and adequate in nature. 7. I have heard learned advocate Mr.Kartik Rawal for the appellant and learned advocate Mr.Sunil B.Parikh for the insurance company. 8. Learned advocate Mr.Rawal for the appellant submits that the award passed by learned Tribunal is on lower side and cannot be said to be just and adequate in nature. Learned advocate Mr.Rawal, while not much disputing about the income assessed by the learned Tribunal, submitted that learned Tribunal however committed an error in not considering future rise while computing income. Learned advocate Mr.Rawal relying upon the judgment of the Honourable Apex Court in the case of National Insurance Company Limited Vs Pranay Sethi and others, reported in (2017) 16 SCC 680 submitted that considering the age of the appellant, 40% rise deserves to be considered so as to arrive at just decision for computing income. Learned advocate Mr.Rawal further submitted that learned Tribunal has committed serious error in assessing the injury at 40% body as a whole. Learned advocate Mr.Rawal, to substantiate his contention about injuries, heavily relied upon the deposition of Dr.Ashok Sajnani at Exh.51. Relying upon the said deposition at Exh.51, Mr.Rawal submitted that evidence of the Doctor can be said to be an expert opinion and if the Doctor in no uncertain terms stated that permanent disability body as a whole at 73% and further stated that the appellant not able to drive the vehicle, learned Tribunal in that event ought to have considered injuries at 100% functional disability. According to Mr.Rawal in absence of any other contrary evidence, learned Tribunal had no occasion to disbelieve and/or ignore the evidence of medical expert. Learned advocate Mr.Rawal further submitted that learned Tribunal has committed further error in awarding very less amount i.e. Rs.50,000/- under the head of pain, shock and suffering. According to Mr.Rawal considering the injuries, length of treatment and keeping in mind that approximately 15 operations being performed, learned Tribunal ought to have awarded a sum of Rs.1,50,000/-. Learned advocate Mr.Rawal further submitted that learned Tribunal has completely ignored the compensation under the head of loss of amenities of life which according to Mr.Rawal ought to have been at Rs.1,50,000/-. Learned advocate Mr.Rawal thereafter fairly submitted that compensation awarded under other heads is not disputed. 9. By making the above submissions, learned advocate Mr.Rawal has prayed this Court to enhance the compensation adequately. 10. Learned advocate Mr.Rawal thereafter fairly submitted that compensation awarded under other heads is not disputed. 9. By making the above submissions, learned advocate Mr.Rawal has prayed this Court to enhance the compensation adequately. 10. Per contra, learned advocate Mr.Sunil Parikh for the insurance company has vehemently opposed the present appeal contending that judgment and award passed by learned Tribunal is perfectly justified and compensation is just and adequate in nature. Mr.Parikh, learned advocate submitted that income assessed by learned Tribunal is even otherwise on higher side thereby entire compensation based on income resultantly justified and thereby no interference be called for. Mr.Parikh, learned advocate further submitted that learned Tribunal was justified in assessing injuries at 40% body as a whole considering the injury certificate as well as evidence of the medical expert. According to Mr.Parikh the amount awarded under the head of pain, shock and suffering is also just and proper. However, Mr.Parikh, learned advocate could not dispute the ratio laid down by the Honourable Apex Court in the case of Pranay Shethi (supra) wherein future rise of income at 25% is decided. Mr.Parikh, learned advocate could not even dispute the fact that the claimant sustained serious injuries as stated hereinabove and for that he had to undergo long treatment including 15 operations. 11. By making the above submissions, Mr.Parikh, learned advocate for the insurance company has prayed this Court to pass appropriate order in the interest of justice. 12. I have heard learned advocates for the respective parties and have gone through the Record and Proceedings of the concerned Tribunal. No other and further submissions have been canvassed by learned advocates appearing for the respective parties except what is stated hereinabove. 13. Having considered the submissions of learned advocates for the respective parties and having gone through the material on record, the short question that falls for consideration of this Court is whether the award passed by learned Tribunal could be said as just and adequate ? 14. So as to decide the aforesaid question, first of all, income of the claimant deserves to be ascertained carefully. In the instant case, as the appellant is satisfied with the assessment of learned Tribunal as regards income at Rs.4500/- per month and not even disputed by the insurance company, I deemed it fit to take the base income at Rs.4500/- per month. In the instant case, as the appellant is satisfied with the assessment of learned Tribunal as regards income at Rs.4500/- per month and not even disputed by the insurance company, I deemed it fit to take the base income at Rs.4500/- per month. Keeping in mind the ratio laid down by the Honourable Apex Court in the case of Pranay Sethi (supra), I propose to add 25% towards prospective rise of income. Thus, prospective income of the claimant can be ascertained at Rs.5625/- per month. 15. This being the case of injuries, permanent disability vis-a-vis functional disability deserves to be considered. In the instant case, the appellant was driver. Keeping in mind his occupation, it would be apt to take into consideration the evidence of medical expert at hand which was recorded below Exh.51 i.e. of Dr.Sajnani. True translation of the examination-in-chief as well as cross examination is hereby extracted below. “Ex-51 Witness no. 2 on behalf of the Applicant. Before Ld. Motor Accident Claims Tribunal of Ahmedabad. M.A.C.T. No: 867/1998. Applicant: Vahidsab Badasabmiya Saiyad Vs Opponents: Haradevsinh Mahendrasinh Jat. Sub : Affidavit in chief of the witness for the applicant. I, Dr Ashokbhai Sajanani, age about 45 years, Orthopedic Surgeon, resident of Ahmedabad hereby execute this Affidavit on my solemn affirmation that :- (1) I am MS Orthopedic Surgeon. For last many years I have been in the occupation of the Orthopedic Surgeon with the name of Satadal hospital in Ahmedabad city. (2) The applicant of this case sustained injuries on 30/08/1997. Thereafter, he underwent treatment as the indoor patient in VS hospital during the time from 30/08/1997 to 01/09/1997. Thereafter, he underwent treatment in the dispensary of Dr Bharat Shah as the indoor patient during the time from 01/09/1997 to said time, the doctor 16/03/1998. During the performed about six operations. Thereafter, he underwent treatment in Swami Shanti Prakash Karnavti hospital as the indoor patient during the time from 20/03/1998 to 10/06/1998. I had given the said treatment and during the said time I had performed four operations. At that time, there being infection on his right leg, no operation was succeeding and the leg was getting more and, more decayed. If the leg was getting more decayed, there might be severe problem with the leg. I had given the said treatment and during the said time I had performed four operations. At that time, there being infection on his right leg, no operation was succeeding and the leg was getting more and, more decayed. If the leg was getting more decayed, there might be severe problem with the leg. With regards the same, performing the operation of "Elizaro Technique" was must and we did not have apparatus in our hospital in the said regard. The specialist doctor with regards the same was Dr Milind Chaudhari in Akola, I sent him to Akola. Meanwhile, I issued the temporary certificate of his physical disability to the applicant. I noted down as to which injuries the said patient had sustained, at what time he had undergone the treatment, which problems he was facing and issued him the certificate. At that time, the temporary physical disability for him was found 39 percent on the body as a whole. The certificate in the said regard is produced vide Mark - 25/8, it is the same. After issuing the aforesaid certificate to the said patient, he was again examined on 28/08/2003 for the purpose of permanent disability. On asking him as to which treatment he underwent after 1999, he produced all the papers of treatment he had undergone with Dr Milind Chaudhari. Looking to the same, he had undergone about five operations from Dr Milin and thereafter also the treatment is going on from Dr Milin. Further, the problem is given below which he is facing. (1) He has pain with contusion on right leg. (2) While walking towards right side, he is limping, therefore he is facing problem while walking. (3) He is facing physical weakness on right leg. (4) Frequently he is getting pain on right ankle part. (5) He is unable to seat keeping cross legs. (6) He is unable to offer Namaz (Prayer). (7) He is suffering on left leg with contusion. (8) He has a pain on left hand wrist and having weakness.. I considered the aforesaid complaints and took X- rays of the patient and I have come to know about the following facts. (3) There were injury marks on front part in the of head and on the left side. Further, one wound mark of eight inch long operation on right buttock was seen. I considered the aforesaid complaints and took X- rays of the patient and I have come to know about the following facts. (3) There were injury marks on front part in the of head and on the left side. Further, one wound mark of eight inch long operation on right buttock was seen. The operation wound mark of one and half centimeter was seen on left leg ankle part. Further, there was one small on round wound found right buttocks. Thereafter, I carried out physical examination of the patient by using different apparatus. On examining the patient and on making calculations, I assessed physical disability to the said patient at 73 percent on the body as a whole. The certificate thereof is issued vide Ex-48 1, it is the same. The facts written therein are entire true, there is my signature therein. The calculations and facts stated in the said certificate are true and appropriate. (4) For making the aforesaid calculations, I relied upon my own experience and Manual for doctors to evaluate permanent physical impairment by AIIMS D.A. Ability determination and evaluation by Dr Henry H. Casler and issued the said certificate. On taking into consideration the calculation of physical disability, as per my opinion, the complaint made by him is true and appropriate. Further, keeping in view the said injuries, type of his occupation, I am of the opinion that he is unable to work as a driver. As per my knowledge, the aforesaid fact is true... Ahmedabad. Date: 08/01/2004. Sd/- illegible Solemnly affirmed before me by Dr Ashokbhai Ajanani. Who is identified by Shambhu prasad Bhatt. Clerk of Advocate Shri C.A. Shah. Date : 08/01/2004, Sd/- illegible Superintendent Sheristedar City Civil Court, Bhadra. Ahmedabad. M.A.C.T. No : 867/1998 Cross examination against the Affidavit vide Ex - 51. Advocate Mr A.R. Janardan on behalf of the Opponent. Administered the oath. (1) I do not remember as to whether I had perused injury certificate of the said patient issued from V.S. hospital or not. I am saying on looking to the said injury certificate vide Ex - 41 issued from V.S. hospital that I had seen the said certificate at the relevant time. It is true that I gave treatment for the injuries apart from the head injury stated in the certificate issued from V.S. Hospital. I am saying on looking to the said injury certificate vide Ex - 41 issued from V.S. hospital that I had seen the said certificate at the relevant time. It is true that I gave treatment for the injuries apart from the head injury stated in the certificate issued from V.S. Hospital. It is true that I gave treatment to the patient during the time from 20/03/1998 to 10/06/1998. It is true that the reason of the said longer treatment might be the infection. As the infection was not controlled through my treatment, the patient was sent to Akola for the treatment. It is true that debriment means to clean up the wound and take out the tissue. (2) When the patient was under treatment and thereafter when the patient came to me for getting the disability certificate issued, it is true that during the said time, condition of the wound to the patient was improved. But his leg was shortened. When the patient came to me for the treatment, his femur bone was not united but the bone pieces were seen therein. It is true that if the fracture is not united and the bone pieces are seen distinctly, he is unable to put the weight thereon and walk. For the patient, when the pieces of bones were seen in the fracture gap, I cannot say as to whether the patient could walk or not. But, on giving further treatment to him, his leg has been shortened, he is able to walk. Question: In comparison between the conditions of two persons the bed ridden condition without fracture union and the condition wherein he is limping, Whether the condition wherein the person is limping is considered good? Answer: I am not willing to believe that if he is able to walk under compromised condition, the same shall be considered good condition. In the non union case, the advice can be given to walk by taking support and the same is said to be bone weight bearing. Under such condition, he is unable to use his affected leg. (3) I used measurement trigonometer for the patient. At present, I do not have another tentative note of the findings, etc which I had made in the certificate vide Ex 53. Under such condition, he is unable to use his affected leg. (3) I used measurement trigonometer for the patient. At present, I do not have another tentative note of the findings, etc which I had made in the certificate vide Ex 53. The details of right side lower limb movement has been written on the basis of condition of patient's right leg while examining him. It is true that while assessing the disability, I had relied upon the method of Casler also.. It is true that as per Casler's method, the affected limb is compared with the normal limb. It is not true that I have not compared the affected limb with a normal limb. The doctor willingly states that the same was compared but it has not been written in the certificate. The doctor states that his left leg was affected. There was a femur fracture on right leg, whereas there was a tibia febula fracture on left leg. It is not true that in such cases the comparison of both legs cannot be done. It is not true that the patient did not sustain any fracture in the wrist. It is not true that in comparison with the wrist, there is much disability in legs. While discharging from my place, all bones apart from the femur fractures were united. I had decided through clinical examination the loss of power which has been stated in the disability certificate. For the purpose to arrive at the right decision, as per the Casler rule, for examining about the muscle power, there was indication of using the spring balance. The reading of muscle power is known through spring balance. Whereas, it will be exactly known examining clinically. (4) I cannot say as to whether the physical disability which is assessed during treatment is more than the disability assessed after completion of the treatment or not.. The doctor states that the same might be more or less also. As per the cashler method, there are apparatus for measuring grip and finger snap. It is true that the disability of the patient has been decided on the basis of restriction in movement. If the patient does not co-operate, the result might be different also. The witness states that if the patient is not co-operating, we ourselves get his co-operation through our different method. It is true that the disability of the patient has been decided on the basis of restriction in movement. If the patient does not co-operate, the result might be different also. The witness states that if the patient is not co-operating, we ourselves get his co-operation through our different method. I have not written such in the certificate that I had obtained cooperation of the patient through any other method. The meaning thereof is such that he was true that I have made co-operating. It is not exaggerated assessment of disability in the said case. Cross examination is over. No re-examination. Date: 08/01/2004. Sd/- illegible Before me (G.A. Ahuja) Judge, M.A.C.T. (Auxi) Court no. 16 Ahmedabad”. 16. In view of the aforesaid uncontroverted medical expert opinion, it is clearly borne out that the claimant has been assessed at 73% permanent disability body as a whole. It is further borne out that medical expert has in no uncertain terms stated that the claimant would not be in a position to drive the vehicle in future. In view of the aforesaid evidence, I am failed to understand as to how and in what manner, learned Tribunal has assessed disability body as a whole at 40%. Learned Tribunal has not even given any reasoning for coming to a different conclusion than that of medical expert evidence. In my view, when the Doctor who has treated the claimant and who is said to be an expert in the field has in no uncertain terms stated that the patient is suffering disability body as a whole to the extent of 73%, in such circumstances, in my view, learned Tribunal could not have arrived at different conclusion than that of medical opinion of the expert person. 17. In view of the aforesaid, keeping in mind the expert opinion as well as keeping in mind the occupation of the claimant as a driver, I propose to assess 100% funcational disability. 18. So far as the amount awarded by learned Tribunal under the head of pain, shock and suffering i.e. Rs.50,000/- is concerned, in my considered opinion, it is on very lower side and not befitting to the injuries and treatment undertaken by the claimant. Hence, I propose to award a sum of Rs.1,00,000/- under the head of pain, shock and suffering. So far as the amount awarded by learned Tribunal under the head of pain, shock and suffering i.e. Rs.50,000/- is concerned, in my considered opinion, it is on very lower side and not befitting to the injuries and treatment undertaken by the claimant. Hence, I propose to award a sum of Rs.1,00,000/- under the head of pain, shock and suffering. Considering the age of the claimant and keeping in mind the injuries resulted into shortening of leg, the claimant deserves to be awarded Rs.75,000/- under the head of loss of amenities of life. So far as the compensation awarded under the other heads is concerned, since not disputed by learned advocate for the appellant, I propose not to disturb the same. 19. In view of the aforesaid discussion, the compensation awarded by learned Tribunal is held to be not just and adequate and thereby the same deserves to be modified as under. Future loss of income Rs.10,12,500/- Actual loss of income Rs.72,000/- Pain, Shock and Suffering Rs.1,00,000/- Tickets and travelling expenses Rs.11,700/- Medical treatment Rs.1,34,000/- Special diet and attendant charges along with transportation charges Rs.20,000/- Loss of amenities. Rs.75,000/- Total Rs.14,25,200/- 20. Learned Tribunal has awarded the compensation of Rs.8,34,420/-. Hence, the claimant shall be entitled for additional amount of Rs.5,,90,780/-. 21. Resultantly, the appeal is partly allowed. The claimant shall be entitled to Rs.5,,90,780/- by way of additional amount with 6% interest from the date of application till the realization. The respondent insurance company is hereby directed to deposit a sum of Rs.5,,90,780/- with 6% interest within a period of 12 weeks after receipt of the copy of the order. Learned Tribunal, in turn, shall disburse the same in favour of the claimant after proper verification. R & P be sent back forthwith.