JUDGMENT : 1. Heard learned Advocate Mr. Rathin P. Raval for the appellant-United India Insurance Company Limited, learned Advocate Mr. Devansh Kakkad for learned Advocate Mr. Hemal Shah for the respondent No.1-original claimant and learned Advocate Mr. Sunil B. Parikh for the respondent No.3-National Insurance Company Limited. 2. By way of this appeal, the appellant - Insurance Company i.e. the Insurance Company of the claimant challenges the judgment and award dated 12.06.2017 passed by the learned M.A.C. Tribunal (Aux.) Rajkot, in M.A.C. Petition No. 835 of 2011. 3. Learned Advocate Mr. Raval for the appellant would submit that the appellant is the Insurance Company of the claimant and whereas the impugned judgment and award is challenged on two counts that is on the count of 70% liability as regards the accident being imposed upon the Truck in question and only 30% liability being imposed upon the stationary Truck i.e. the Truck insured with the respondent No.3- National Insurance Company and the second count of challenge being that the learned Tribunal has considered 100% functional disability of the claimant as against 45% actual disability as agreed between the parties. Learned Advocate Mr. Raval would submit that by way of the impugned judgment and award, the learned Tribunal has awarded an amount of Rs. 11,49,881/- with 9% interest from the date of the claim petition till the date of actual realization and whereas as per the degree of negligence, 70% of the awarded amount is directed to be paid by the appellant Insurance Company, whereas 30% of the awarded amount is directed to be paid by the respondent No.3- Insurance Company. 3.1 Learned Advocate Mr. Raval would submit that the accident had occurred on 23.03.2011 in the midnight at 11:45 P.M. and whereas the claimant was driving an Eicher Truck bearing Registration No. GJ.2.Z.5087 and whereas while it was travelling between Tankara to Rajkot, it had dashed with the stationary Truck having Registration No. MH.18.M.8071, which was parked on the road, more particularly without any indicator. Learned Advocate would further submit that from the judgment and order of the learned Tribunal, it appears that the driver of the Truck insured with the appellant had tried to save a pedestrian and it is on account of such reason, the driver had collided the Truck with the parked Truck insured with the respondent No.3, more particularly according to learned Advocate Mr. Raval, on account of the fact that the stationary Truck did not have any signal or indicator on. Learned Advocate would submit that under such circumstances, since the accident had occurred also on account of the fact that the Truck insured with the respondent No.3 was parked in a hazardous manner on the road without any indicator, therefore the negligence of the said Truck was of much higher degree than the alleged negligence of the driver of the Truck insured with the appellant Insurance Company. Having regard to such circumstances, learned Advocate would submit that the learned Tribunal had gravely erred in holding that the appellant Insurance Company was liable for 70% of the award, whereas the respondent No.3 Insurance Company was only liable for 30%. 3.2 Learned Advocate Mr. Raval would further submit that a reading of the Panchnama of the place of the accident would reveal that the Truck insured with the appellant Insurance Company was standing on the shoulder of the road or rather some part of the Truck was on the edge of the road and whereas according to the learned Advocate Mr. Raval, this would show that the offending Truck i.e. the Truck insured with the respondent Insurance Company was parked either on the road or adjacent to the road. Thus, according to learned Advocate Mr. Raval, if not a higher degree of negligence, at least the respondent No.3 Insurance Company ought to have been made equally liable. 3.3 Learned Advocate Mr. Raval would further rely upon the Paragraphs No. 12 and 12.1 of the impugned decision and would submit that while with consensus of the parties the physical disability of the claimant i.e. driver of the Truck insured with the appellant Insurance Company was fixed at 45%, yet the learned Tribunal had considered the functional disability of the claimant at 100%. Learned Advocate would submit that such a conclusion by the learned Tribunal being prima facie erroneous, therefore this Court may interfere and appropriately modify the judgment and award in question. 3.4 Learned Advocate Mr. Raval for the appellant would further submit that before the learned Tribunal, the parties were ad idem as regards the physical disability of the claimant and whereas inspite of the same, the learned Tribunal has considered the functional disability at 100%, and therefore also he requests that the impugned judgment may be set aside by this Court. 4. Raval for the appellant would further submit that before the learned Tribunal, the parties were ad idem as regards the physical disability of the claimant and whereas inspite of the same, the learned Tribunal has considered the functional disability at 100%, and therefore also he requests that the impugned judgment may be set aside by this Court. 4. This appeal is vehemently objected to by learned Advocate Mr. Sunil Parikh for the respondent No. 3 - Insurance Company. Learned Advocate Mr. Parikh would submit that the Truck insured with the respondent No.3 - Insurance Company was parked not only besides the road, but according to learned Advocate Mr. Parikh, a perusal of the Panchnama of place of the accident would reveal that the Truck was parked at some distance from the road and whereas the Truck insured with the appellant- Insurance Company being driven by the respondent No.1-claimant in rash and negligent manner and whereas the Truck after hitting a pedestrian had jumped of the road and had hit the stationary Truck insured with the respondent No.3. Learned Advocate Mr. Parikh would therefore submit that as such the respondent No.3- Insurance Company could not have been imposed with even 30% of the liability, but since the respondent No.3 has chosen not to challenge the appeal, therefore the learned Advocate leaves the arguments at that. 5. This appeal is also vehemently objected to by learned Advocate Mr. Kakkad for learned Advocate Mr. Shah for the respondent No.1-claimant. Learned Advocate Mr. Kakkad would submit that while it is true that the respondent No.1-claimant had suffered only 45% physical disability, but at the same time the functional disability as rightly held by the learned Tribunal was 100%. Learned Advocate Mr. Kakkad would in this connection rely upon the decision of the Hon'ble Apex Court in case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343 , whereby the Hon'ble Apex Court has inter alia observed that the permanent disability arising out of an accident, should be compensated depending on the effect and impact of such permanent disability would have on the earning capacity of the claimant. Ajay Kumar and Another, reported in (2011) 1 SCC 343 , whereby the Hon'ble Apex Court has inter alia observed that the permanent disability arising out of an accident, should be compensated depending on the effect and impact of such permanent disability would have on the earning capacity of the claimant. Learned Advocate would submit that the original claimantrespondent No.1 herein, at the relevant point of time being a driver, and whereas on account of the accident, the right foot of the claimant being required to be amputated below the knee and the entire left foot of the claimant getting completely crushed, therefore the claimant had lost 100% earning capacity as a driver, and therefore the learned Tribunal has rightly considered the functional disability at 100%. Having regard to such submissions, learned Advocate Mr. Kakkad would this Court not to interfere with the impugned judgment and award. 6. Heard learned Advocates for the respective parties who have not submitted anything further. 7. Insofar as the accident in question, more particularly to decide the negligence of the Trucks in question is concerned, it would be beneficial to refer to the FIR as well as to the Panchnama of the place of the accident, Exh. 31 and 32 before the learned Tribunal. It appears that the FIR was lodged by the driver of the Truck which was parked near the place of the accident, not being one of the Trucks in question and more particularly the cleaner of the Truck having expired in the accident in question. From a plain reading of the Panchmana of the place of the accident, it appears that the Truck insured with the appellant was found at the edge of the highway, more particularly the Truck, according to the Panchnama and according to the submission of learned Advocate Mr. Raval, part of the Truck standing on the edge of the road and part of the Truck standing on the Kachha road besides the main highway. It appears that the Truck insured with the appellant, had first hit a pedestrian and thereafter the driver appears to have lost control and driven to the left side of the road and had dashed with the Truck insured with the respondent No.3 parked besides the road. It appears that the Truck insured with the appellant, had first hit a pedestrian and thereafter the driver appears to have lost control and driven to the left side of the road and had dashed with the Truck insured with the respondent No.3 parked besides the road. It also appears from the description of the vehicles after the accident that, the left side of the Truck insured with the appellant Insurance Company was completely damaged and on the other hand, the right side of the back portion of the Truck insured with the respondent No.3 Insurance Company, was also considerably damaged. A fair presumption could be drawn that the Truck insured with the appellant had dashed with the right hand corner of the back side of the Truck insured with the respondent No.3 Insurance Company. From the position of the Trucks and the resultant impact, it appears that the Truck insured with the respondent No.3 had rolled in a ditch besides the road on account of the impact and whereas the impact and the manner in which the impact had happened was such that the Truck did not roll down as in normal course with the front side first, rather the accident had resulted in the Truck actually being pushed to the side of the road and the Truck had rolled into the ditch back side first. From the Panchnama and from the manner in which the Truck insured with the appellant was found, even if assuming that some part of the Truck i.e. the part driver of the Truck was touching on the edge of the road, but as noted hereinabove, the left side of that Truck had been destroyed in the accident and on the other hand, the Truck insured with the respondent No.3 Insurance Company damaged on the right hand side i.e. behind the driver's cabin on its back portion, therefore as noted hereinabove, it could be clearly presumed that the said Truck was parked besides the road and not on the road and whereas it would also appear that the Truck insured with the appellant, on account of the accident with the pedestrian, the driver could not control the Truck and he had dashed his vehicle with the stationary Truck insured with the respondent No.3, which had resulted in the said Truck being pushed of the road. Thus, from the perusal of the Panchnama of the place of the accident and the FIR, in the considered opinion of this Court, the Truck insured with the respondent No.3 Insurance Company was not parked in a negligent manner, more particularly it does not appear that the Truck was in any way touching the road or near the road and also considering the fact that the driver of the Truck insured with the appellant Insurance Company had also lost control after first accident with the pedestrian, therefore it clearly appears that even if the Truck was parked with its signals on, yet the Truck insured with the appellant would have dashed with the said parked Truck, more particularly since it appears as noted hereinabove that the driver had lost his control. Thus, insofar as the negligent aspect is concerned, in the considered opinion of this Court, no fault could be attributed to the Truck insured with the respondent No.3 Insurance Company. 8. The decision of Hon'ble Division Bench of this Court in case of National Insurance Company Vs. Varshaben Bharatbhai Gohil, reported in 2013 (1) GLR 405 , relied upon by learned Advocate Mr. Raval, would not advance the cause of the appellant, more particularly since at Para No. 7 which is relied upon by learned Advocate Mr. Raval, the Hon'ble Division Bench of this Court also mentioning that the Panchnama of the scene of the incident hardly shedding any clear light on the position of the vehicles in the said matter, as against which the Panchnama of the place of the accident in the present matter, clearly shedding light on the position of the vehicles in question, the said judgment would be of no avail. 9. Insofar as the submissions made by learned Advocate Mr. Raval with regard to the disability, this Court agrees with the submissions of learned Advocate Mr. Kakkad for the claimant, more particularly relying upon the decision of the Hon'ble Apex Court in case of Raj Kumar (supra), where the Hon'ble Apex Court has inter alia observed that effect and impact of permanent disability on earning capacity of a person ought to be considered. The observations of the Hon'ble Apex Court in case of Raj Kumar (supra) at paragraphs No. 10 and 11 being relevant for the present purpose are reproduced hereinbelow for benefit. "10. The observations of the Hon'ble Apex Court in case of Raj Kumar (supra) at paragraphs No. 10 and 11 being relevant for the present purpose are reproduced hereinbelow for benefit. "10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation." 10. A perusal of the above quoted paragraphs clearly reveals that the Hon'ble Apex Court has inter alia observed that the effect of the permanent disability on the future earning capacity of a person, has to be viewed from the angle of the effect and impact of such permanent disability on the person concerned. A perusal of the above quoted paragraphs clearly reveals that the Hon'ble Apex Court has inter alia observed that the effect of the permanent disability on the future earning capacity of a person, has to be viewed from the angle of the effect and impact of such permanent disability on the person concerned. In the instant case, the permanent disability though counted at 45% is on account of the fact that the respondent No.1-claimant has his right leg amputated below the knee and his left foot was completely crushed. Thus, it is on account of such injuries that the learned Tribunal has observed that though the permanent disability was 45%, but considering the impact, the disability has on the claimant who was a driver, the same has to be assessed at 100%. This Court is in agreement with the findings of the learned Tribunal, more particularly in view of the fact that the respondent No.1-claimant, would be completely disabled from working as a driver on account of the injuries sustained by him. In view of the same, in the considered opinion of this Court, the submissions of learned Advocate for the appellant cannot be countenanced on this aspect also. 11. In this view of the matter, in the considered opinion of this Court, the present appeal being meritless deserves to be dismissed and is hereby dismissed. Record and proceedings be sent back to the learned Tribunal forthwith. 12. Insofar as the aspect of disbursement of awarded amount is concerned, the respondent No.1-claimant is at liberty to approach the learned Tribunal for appropriate orders.