JUDGMENT : 1. Challenge in this appeal is to the judgment and award dated 13.07.2018 passed by the learned Motor Accident Claims Tribunal, Ahmedabad (the Tribunal) in Motor Accident Claim Petition No. 917 of 2006 (claim petition). 2. Factual matrix of the claim petition, as can be drawn from the facts stated before the learned Tribunal, are to the effect that on 15.02.2006 at about 9 a.m., the claimant was going on a Matador, bearing registration No. GJ-09-T-4681 for labour work. The Matador was being driven by the opponent No. 1 in the claim petition and as per the claimant, while passing through three roads of Jamtha, as the said opponent No. 1 was driving the Matador rashly and negligently, in full speed, he lost control over the steering, as a result of which, the Matador turned turtle. The claimant came under the Matador and sustained serious injuries and during the treatment, both the legs of the claimant below the Knee were amputated. It is also contended that left Thigh was operated and screws and plates were inserted therein. 3. Learned advocate Mr. Sachin Vasavda for the appellant submits that Motor Accident Claim Petition Nos. 9, 10 and 405 of 2008 were filed by the other claimants before the Motor Accident Claims Tribunal (Auxiliary) at Patan, where, the awarded amount has already been disbursed and no challenge has been given to the judgment and award in the same, by the insurance company and submitted that the insurance company was made liable to pay the compensation amount in all the three claim petitions and thus, stated that the principle of res judicata should be made applicable and the liability of the insurance company, in the present matter, has to be affirmed, submitting that the judgment and award that had come in the Motor Accident Claim Petition Nos. 9, 10 and 405 of 2008 were declared on 19.06.2017 and 18.05.2017, respectively, while the impugned judgment and award was delivered subsequently, on 13.07.2018. 4. As against this, learned advocate Mr. 9, 10 and 405 of 2008 were declared on 19.06.2017 and 18.05.2017, respectively, while the impugned judgment and award was delivered subsequently, on 13.07.2018. 4. As against this, learned advocate Mr. Sunil Parikh for the insurance company, while resisting the appeal, submitted that the learned Tribunal has rightly exonerated the insurance company from the liability to pay the compensation inasmuch as the claimant was not travelling as an employee of the insured vehicle but was a part of the marriage party and the said fact was very well substantiated by the versions of the other claimants in the other claim petitions, where they have stated that they were the part of the marriage party. He submitted that after dealing with the said aspect in depth, the Tribunal has arrived at such a conclusion, which requires no interference at the hands of this Court. 5. The Tribunal, in the present matter, had held that the claimant was illegal occupant of the goods carriage vehicle, which was to be used for the purpose of transportation of the goods. The Tribunal has also observed that at the time of the accident, the vehicle was used for the purpose of carrying the marriage party. The said fact was pleaded and appreciated in Motor Accident Claim Petition Nos. 9, 10 and 405 of 2008 and the learned Tribunal at Patan, on the basis of the principle of res ipsa loquitur, has laid down the liability and has held the driver of the vehicle negligent. The liability of paying the compensation was laid down on the insurance company in all the three claim petitions. Further, it is reported that the insurance company has not challenged the said findings of the Tribunal at Patan, laying the liability of the insurance company, meaning thereby, the same has attained finality. This Court considers that the learned Tribunal at Ahmedabad ought to have appreciated such findings and should have laid down the liability of paying the compensation upon the insurance company as the vehicle was insured with them on the date of accident. In view of the same, the findings of the Tribunal at Ahmedabad exonerating the insurance company from the liability to pay the compensation is hereby set aside. 5.1 The claimant had affirmed before the Tribunal that he was working as a Cleaner and Labourer and was earning Rs.4,000/- per month. In view of the same, the findings of the Tribunal at Ahmedabad exonerating the insurance company from the liability to pay the compensation is hereby set aside. 5.1 The claimant had affirmed before the Tribunal that he was working as a Cleaner and Labourer and was earning Rs.4,000/- per month. The claimant has failed to produce any documentary evidence to substantiate his claim. However, the learned Tribunal, considering the work of Cleaner and Labourer, has considered the monthly income of the claimant as Rs.3,000/-, which according to this Court, is just and appropriate. 5.2 The claimant had produced the Certificate of Sheth N. L. General Hospital, vide exh. 42, assessing the permanent disability of 95%. However, the learned Tribunal has observed that the doctor, who had issued the Certificate, exh. 42 is not examined, but both the parties have agreed to consider the disability at 80% for the body as a whole. However, it appears that the Tribunal has not entered into the facts of functional disability as laid down in the decision of the Hon’ble Supreme Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343 . The Apex Court, in paragraphs 9 to 11 has considered the aspect of assessing the loss of earning capacity with a word of caution to the Tribunal that it should not mechanically apply the percentage of permanent disability as percentage of loss of earning capacity. The relevant observations as reproduced herein below: “9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 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 (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. D.M., National Insurance Co. Ltd. and Yadava Kumar v. D.M., National Insurance Co. Ltd.). 5.3 The Tribunal was required to required to assess the fact of functional disability of the claimant, which appears to have not been done. The claimant was present before this Court on 01.09.2023. It has not come on record that the claimant is not in a position to do any work. Though, amputated below Knee, he was found diligent to do the work and as per his say, he was earning his income to look after his family. Thus, this Court considers that 55% functional disability should be assessed in view of the fact that the claimant is in a position to work to sustain himself and his family. Thus, 55% disability would bring about loss of Rs.1,650/- (Rs.3,000 x 55%) from his monthly income. Hence, applying the multiplier of 15 considering his age as 40 years at the time of accident, the income loss would come to Rs.2,97,000/- (Rs.1,650 x 12 x 15). The amount under other heads are appropriately granted. Hence, the total computation of compensation would be as under: Head Award of Tribunal (Rs.) Modified Amt. (Rs.) Future loss of income 4,32,000/- 2,97,000/- Medical Expenses 72,000/- 72,000/- Special Diet, Attendant and Transportation 10,000/- 10,000/- Pain, Shock and Suffering 50,000/- 50,000/- Actual loss of income 9,000/- 9,000/- Total 5,73,000/- 4,38,000/- 6. For the forgoing reasons, the appeal succeeds and is accordingly, allowed in part. The impugned judgment and award, as aforesaid, is hereby modified to the aforesaid extent and it is held that the appellant shall be entitled to compensation of Rs.4,38,000/- from the respondents herein – original opponent Nos. 2 and 3, who are jointly and severally liable to pay the same, with interest at the rate of 7.5% per annum from the date of claim petition till realization. The awarded amount shall be deposited within a period of 08 (eight) weeks before the Tribunal concerned. 6.1 Upon the amount so deposited, 30% of the amount be invested in a Fixed Deposit with any nationalized Bank, for a period of three years. Insofar as the remaining 70% amount is concerned, the same shall be disbursed in favour of the original claimant, after proper verification. Interest on such Fixed Deposit shall be paid to the claimant periodically. 6.1 Upon the amount so deposited, 30% of the amount be invested in a Fixed Deposit with any nationalized Bank, for a period of three years. Insofar as the remaining 70% amount is concerned, the same shall be disbursed in favour of the original claimant, after proper verification. Interest on such Fixed Deposit shall be paid to the claimant periodically. On completion of three years, the FDR amount shall be disbursed to the claimant, without any reference to this Court, following due procedure. However, the original FDR, in the name of the claimant, shall be kept in the custody of the Nazir of the Tribunal. No any advance, loan or encashment against the Fixed Deposit be permitted by anyone. 6.2 R&P, if received, be transmitted back forthwith.