JUDGMENT : 1. By way of this Appeal, the Appellant-claimant has challenged the judgment and award dated 25.01.2021 passed by the learned Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in M.A.C.P. No.675 of 2018 on the ground that the learned Tribunal failed to consider the medical evidence, the injury certificate issued by Radhaswami Multi-speciality Hospital, Nadiad as also the Certificate issued by the Dr. Supreet Prabhu of E-N-T Hospital, Nadiad – Exhibits 48 and 49 respectively. Further, though the Disability Certificate has been referred in the judgment and award, but the learned Tribunal has not assessed the compensation amount accordingly. 2. The facts in brief can be noted, that on 28.08.2017, the claimant and others were traveling in a Rickshaw bearing Registration No.GJ-7-VW-1807 and when they reached at the place of accident, the respondent No.1 came driving a Truck bearing Registration No.HP-19- D-2605 from Nadiad to Dakor and ahead of the said Truck there was a FIAT Car bearing Registration No.GJ-20-A-4669 which was being driven in a moderate speed and on the correct side of the road. The respondent No.1 dashed the Truck with the FIAT Car from behind, the driver of the FIAT Car lost control over the steering and dashed his FIAT Car with rickshaw, as a result of which the rickshaw turned turtle and the claimant suffered serious injuries. 3. Learned Advocate for the appellant-claimant Mr. Mohsin M. Hakim submitted that the functional disability is to the extent that the claimant is now unable to continue with this work as a Computer Operator and also stated that the Exhibit 49 – the Certificate of the E-N-T Hospital, Nadiad also reflects that there is a scar with loss of portion of upper eyelid leading to incomplete closure of left eye and that has completely affected his work. It is further submitted that the claimant is now not in a position to even pursue any other vocation with this disability. Coupled with the physical disability, supported by the photographs of the claimant, it is stated that the claimant is not even in a position to do any labour work to sustain himself. It is further submitted that the claimant is now not in a position to even pursue any other vocation with this disability. Coupled with the physical disability, supported by the photographs of the claimant, it is stated that the claimant is not even in a position to do any labour work to sustain himself. It is submitted that the claimant has lost muscle power in his limb and that has affected the stability and the Doctor of Radhaswami Multi-speciality Hospital, Nadiad has considered the claimant’s permanent disability qua disability of the body as a whole of 54.65% following the calculation as per the Theory of Kessler. Dr. Supreet Prabhu of E-N-T Hospital, Nadiad has after referring to CT Scan Report has noted multiple fracture on the facial bones and the repeat CT Scan of facial bone on 02.01.2021 reflects injuries sustained. Thus it is submitted that the functional disability ought to have been considered as 100%. It is further submitted that the claimant could prove that he was working as a Clerk cum Computer Operator in Shiv Investment and the Document dated 22.06.2018 (Mark 30/2) is about the claimant being employed by Shiv Investment, 106, City Point, Nadiad 387 001 and because of the accident and looking to his physical disability, it has been noted that he is unable to perform his job and his job has been replaced. It has been noted herein that the appellant-claimant used to earn Rs.11,500/- per month, plus Bonus. Thus, considering the facts of the case, it is submitted that this Court may interfere with the impugned judgment and award of the learned Tribunal and grant enhancement in the compensation amount. 4. Though served, no one appears for the respondents. 5. Heard learned Advocate appearing for the appellant-claimant and perused the records of the case. The amount that has been noted in the document produced qua the salary of the claimant is Rs.11,500/- per month for the post of Computer Operator and hence, the amount is prima-facie proved towards the claimant’s salary. Even taking into consideration, the minimum wages at the time of accident on 28.08.2017, the amount as reflected in Certificate is to be considered as just and proper for the Computer Operator and thus, the Court is of the opinion that the claimant may have received the salary accordingly. Even taking into consideration, the minimum wages at the time of accident on 28.08.2017, the amount as reflected in Certificate is to be considered as just and proper for the Computer Operator and thus, the Court is of the opinion that the claimant may have received the salary accordingly. The said documents, i.e. the Certificate dated 22.06.2016 of Shiv Investment signed by the authorized person at Mark 30/12, reflects that the claimant is no more in job because of the permanent disability. 6. The learned Tribunal while considering the negligence aspect has concluded the truck driver as 100% negligent for the accident and therefore, the respondents No.2 and 3 were made jointly and severally liable to pay the compensation amount. A perusal of the judgment and award shows that the learned Tribunal while deciding the negligence aspect has relied on the earlier judgment of cognate M.A.C.P. No.27 of 2018 passed by the learned Motor Accident Claims Tribunal (Auxi.) on 09.08.2019 and wherein the learned Tribunal had decided negligence and considered the truck driver solely negligent applying the principle of res-judicata. The learned Tribunal in the impugned judgment rightly followed the same and considered the truck driver solely negligent for the accident. The learned Tribunal while considering the disability has relied upon the Certificate issued, Exhibits 48 and 49, and considered 76% disability for the body as a whole. However, what is required to be considered is functional disability. The claimant was a Computer Operator and because of the injuries, lost muscle power and the mobility of the claimant has been affected. Dr. Bhadresh Shah, M.S. (Ortho) of Radhaswami Multi-speciality Hospital, Nadiad in his Report dated 12.06.2019 has given his opinion. Relevant portion is reproduced herein under :- “[1] comminuted fracture tibia fibula right leg in middle 3rd. [2] fracture superior and inferior ramus on left side and undisplaced fracture acetabulum on right hip. [3] facial injuries with clw on left eye brow, lower eyelid, maxillary region and nostril. Close reduction and nailing of tibia was done at Utkarsh Hospital on 24.08.2017. Then he developed infection so nail was removed and Ilizarov fixator was done on 04.09.2017 as bone was not uniting he was again admitted to Omkar Orthopaedic Hospital Vadodara where removal of dead bone and Ilizarov was done on 21.04.2018 since then he is still under treatment and Ilizarov is on till today. Then he developed infection so nail was removed and Ilizarov fixator was done on 04.09.2017 as bone was not uniting he was again admitted to Omkar Orthopaedic Hospital Vadodara where removal of dead bone and Ilizarov was done on 21.04.2018 since then he is still under treatment and Ilizarov is on till today. Complaints There is severe restriction of right knee and anke joint movements. He get pains in right leg on walking and standing. He limps severely on right lower limb. Calculation [A] Muscle Power Right knee has muscle power grade 3+ [70] as compared to normal grade 5 [100] on left side. So 30x0.33=9.9 percent is loss of muscle power of right knee. Right ankle has muscle power grade 3+ [70] as compared to normal grade 5 [100] on left side. So 30x0.33=9.9 percent is loss of muscle power of right ankle. Adding 9.9 to 9.9 comes to 19.8 percent loss of muscle power of right lower limb. [B] Mobility Left knee has 90 of movement as compared to 140 on right side so it is 35.71 per cent less so 35.71x0.33=11.78 percent is loss of mobility of left knee. Left ankle has 20 mobility as compared to normal 120 on right side so it is 75 percent less so 75x0.33=24.75 percent is loss of mobility of right ankle. Adding 11.78 to 24.75 comes to 36.53 per cent loss of mobility of left lower limb. Combining 36.53 [loss of mobility] with 19.8 [loss of muscle power] comes to 49.09. [C] Stability Total body weight is 64 kg. average difference between two limbs is 7 kg so 7x100/64=10.93 per cent is loss of stability. Combining 49.09 with 10.93 [loss of stability] comes to 54.65. This is to certify that Vijay Kanubhai Rana has got permanent physical impairment of 54.65 percent body as a whole. CALCULATION AS PER THEORY OF KESSLER.’’ 7. Dr. Supreet Prabhu of E-N-T Hospital, Nadiad was consulted and the disability was assessed in the following terms :- “Repeat CT Scan of facial bone done on 2nd January 2021 shows 1. Presence of tiny multiple radio opaque foreign bodies. 2. Hairline fracture of left zygomatic arch. 3. Displaced fracture of left lamina papyracea with displacement of orbital fact medially. There is also a scar with loss of a portion of upper eyelid leading to incomplete closure of left eye. Presence of tiny multiple radio opaque foreign bodies. 2. Hairline fracture of left zygomatic arch. 3. Displaced fracture of left lamina papyracea with displacement of orbital fact medially. There is also a scar with loss of a portion of upper eyelid leading to incomplete closure of left eye. As per the Kessler’s book on disability I state the disability as 30% with the body as a whole.” 8. The learned Tribunal has considered 76% of partial permanent disability of the body as a whole. However, this Court considering the claimant’s future and the job which was done by the claimant and the disability which he has sustained in connection to the body as a whole as well as the fact that he lost the eye, which states that there is incomplete closure of left eye, the claimant would not be in a position to continue with his work, as was doing earlier. The claimant has been replaced by some other person. 9. At this stage, this Court thus deems it just and proper to rely on the decisions of the Hon’ble Apex Court in the cases of Mohan Soni vs Ram Avtar Tomar & Others reported in 2012 1 GLH 399 and Jitendran v. New India Assurance Co. Ltd. reported in AIR 2021 SC 5382 . 10. In the case of Mohan Soni (supra), in Paragraph 8, it was held as under :- “8. The question of loss of earning capacity resulting from amputation of one the legs in the case of a tanker driver was considered by this Court in K. Janardhan v. United India Insurance Company Limited and another, (2008) 8 SCC 518 . In that case, a tanker driver suffered serious injuries in a motor accident and as a result, his right leg was amputated upto the knee joint. He made a claim under the Workmen's Compensation Act, 1923. The Commissioner for Workmen's Compensation held that disability suffered by him as a result of the loss of the leg was 100% and awarded compensation to him on that basis. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. In appeal, the High Court, like in the present case, referred to the Schedule to the Workmen's Compensation Act, 1923 and held that the loss of a leg on amputation amounted to reduction in the earning capacity by 60% and, accordingly, reduced the compensation awarded to the tanker driver. This Court set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen's Compensation. In K. Janardhan this Court also referred to and relied upon an earlier decision of the Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289 , in which a carpenter who suffered an amputation of his left arm from the elbow was held to have suffered complete loss of his earning capacity.” 11. In the case of Jitendran (supra), in Paragraphs 13, 14, 15 and 16 it was held as under :- “13. The extent of economic loss arising from a disability may not be measured in proportions to the extent of permanent disability. This aspect was noticed in Raj Kumar Vs. Ajay Kumar and Anr., (2011)1 SCC 343 , where Justice R.V. Raveendran made the following apt observations: “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, the 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 shows 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. 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 permanent 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 terms 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 the 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.” 14. The test for determining the effect of permanent disability on future earning capacity involves the following 3 steps as was laid down in Raj Kumar, [Ibid] and reiterated by Justice Indu Malhotra in Chanappa Nagappa Muchalagoda vs.Divisional Manager, New India Insurance Company Limited, (2020)1 SCC 796 . “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 disability (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.” 15. The above yardstick to be adopted in such exigencies was reaffirmed by Justice S. Ravindra Bhat in Pappu Deo Yadav vs. Naresh Kumar and others, (2020) SCC Online 752. The following was set out by the three Judges’ Bench: “13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity.” “20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case.” 16. As noted earlier, the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home. In such circumstances, his loss of earning capacity must be fixed at 100%.As his monthly income was Rs.4,500/-, adding 40% future prospect thereto, the monthly loss of earning is quantified as Rs.6,300/-. We therefore deem it appropriate to quantify Rs.13,60,800/- (Rs.6,300 x 12 x 18) as compensation for 100% loss of earning for the claimant. Accordingly, under this head, the amount awarded by the High Court is enhanced proportionately.” 12. We therefore deem it appropriate to quantify Rs.13,60,800/- (Rs.6,300 x 12 x 18) as compensation for 100% loss of earning for the claimant. Accordingly, under this head, the amount awarded by the High Court is enhanced proportionately.” 12. After having referred to the above judgments, where the earning life for the claimants is over and as such, the claimant’s income loss is to be quantified as 100%, keeping in mind the decision of the Hon’ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and Anr. reported in (2011) 1 SCC 343 , this Court considers the functional disability of the claimant @ 100%. 13. The claimant while producing his evidence at Mark 30/12 dated 22.06.2016 given by Shiv Investment shows that he was serving at Shiv Investment and was earning Rs.11,500/- per month but has been replaced by some other person from 31.12.2017. Following the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited v. Pranay Sethi and Others reported in 2017 16 SCC 680 , the learned Tribunal should have granted prospective rise in income and should have considered the income accordingly. The claimant was 42 years at the time of accident and was earning Rs.11,500/- per month. Thus, keeping in mind the Minimum Wages Schedule, the income as noted in the Certificate cannot be considered adequate. Per year income @ Rs.11,500/- per month would come to Rs.1,38,000/-. Applying 100% functional disability and considering the multiplier of 14 which has been considered by the learned Tribunal, the claimant would be entitled to an amount of Rs.19,32,000/- (Rs.11,500/- per month x 12 months x 14 multiplier) as future income loss. The learned Tribunal has considered actual loss as Rs.28,000/- and medical expenses as Rs.2,85,000/-, Rs.10,000/- under the head of Special Diet, Attendant and Transportation and Rs.30,000/- for pain, shock and suffering, which this Court does not feel necessary to interfere with. However, considering the functional disability @ 100%, the income amount under the head of future economic loss would get enhanced. 14. Thus, the computation can be made as under :- Details Amount (Rs.) Compensation for loss of future income/earning capacity (Rs.11,500/- per month x 12 months 14 multiplier) 19,32,000.00 Actual loss of income 28,000.00 Medical Expenses 2,85,000.00 Special Diet, Transportation and Attendant Charges 10,000.00 Mental pain, shock and suffering 30,000.00 TOTAL 22,85,000.00 15. 14. Thus, the computation can be made as under :- Details Amount (Rs.) Compensation for loss of future income/earning capacity (Rs.11,500/- per month x 12 months 14 multiplier) 19,32,000.00 Actual loss of income 28,000.00 Medical Expenses 2,85,000.00 Special Diet, Transportation and Attendant Charges 10,000.00 Mental pain, shock and suffering 30,000.00 TOTAL 22,85,000.00 15. The learned Tribunal has awarded an amount of Rs.12,46,760/- with rate of interest @ 7.5% per annum, which the respondent/s are liable to deposit, with the enhanced amount as Rs.10,38,240/- (Rs.22,85,000/- minus Rs.12,46,760/-). In the result, the present respondent/s are directed to deposit the amount within a period of EIGHT (8) WEEKS from the date of receipt of writ of the order of this Court. It is further directed that the claimants would be entitled to receive the enhanced compensation @ 7.5% per annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal. 16. In view of the above, the Appeal is allowed and the judgment and award dated 25.01.2021 passed by the learned Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in M.A.C.P. No.675 of 2018 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court/Tribunal forthwith.