JUDGMENT : GITA GOPI, J. 1. The injured claimant has challenged the judgment dated 30.8.2002 passed by the MACT (Aux), Ahmedabad (Rural) in MACP No. 632/95. The grounds inter-alia raised challenging the judgment are that the compensation has not been granted as per the functional disability and the amount under the various heads are also on lower side and the learned Tribunal has not considered the same in right perspective. 2. Learned advocate Mr. Heet Jhaveri for the appellant submitted that the learned Tribunal though had considered the evidence on record with regard to the treatment undergone by the claimant and had also considered 40.03% physical disability assessed of the body as a whole by the orthopedic surgeon but has failed to consider the functional disability of the claimant accordingly and has assessed disability as 30%. Learned advocate Mr. Jhaveri submitted that the Tribunal was required to follow the principles laid down in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 to decide the functional disability since the claimant could not continue with her job, and to state that under various heads to grant just compensation requires holistic view of this court, Advocate Mr. Jhaveri has placed reliance on the judgments of Mangla Ram vs. Oriental Insurance Company Limited, (2018) 5 SCC 656 and Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma, (2015) 2 SCC 180 and also to contend that strict proof of accident is not possible when the claimants are merely required to establish their case on the touchstone of preponderance of probability. 3. The Hon’ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 has observed as under: “11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim’ for determining the `just compensation’. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ‘just compensation’. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the ‘just compensation’. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor’s opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.” 4. As per the facts of the case, on 9.1.1995, the applicant claimant was going towards drive in road from Thaltej on her Sunny moped bearing registration no. GJ-1-N-9916. She had stopped Moped on Sarkhej to Gandhinagar highway road four was cross roads, and from the ongoing traffic on the highway, opponent no. 1 came in full speed negligently driving truck bearing registration no. RSJ-5938 in a rash and negligent manner in full speed, having lost control over the steering came on the wrong side and dashed the applicant’s moped in full force. As a result, the applicant sustained injury. 5. As per her deposition before the Court owing to the accident, she was dragged for about 15 feet. Her left leg above the knee got crushed and the whole body got disfigured. There were fractures on the leg. As a result, the applicant sustained injury. 5. As per her deposition before the Court owing to the accident, she was dragged for about 15 feet. Her left leg above the knee got crushed and the whole body got disfigured. There were fractures on the leg. She was admitted to V.S. hospital in the emergency ward and in the evening operation was conducted on her. She remained as an indoor patient for about 3 months in V.S. hospital and during that period for about 7-8 times, operations were conducted on her and in the course of operation, a rod was inserted at the knee cap in the middle of the leg and plastic surgery was conducted on her and inspite of that, the said part has not maintained the shape. She has deposed that after being discharged from the hospital for about 4-5 months, there was rod in her leg. The legs could not be bent. Again at Dr. Kanabar’s hospital she was operated as an indoor patient for 15-20 days. After the operation, rod was inserted which continued. She was advised physiotherapy treatment which she had undergone for 7-8 months. 6. She stated that she was serving in cooperative bank at Manekchowk and was earning monthly income of Rs. 3,400/-. She stated that she has to now expend a lot after medical expenses. She states that she could not attend the job for about 12 months. Mr. Jhaveri submitted that since the injury did not allow her to continue with the work, she was retrenched from service with effect from 23.4.2005. Advocate Mr. Jhaveri produced a copy of certificate from the Manekchowk Cooperative Bank Ltd. from which it transpires that she had joined the service of bank on 1.4.1987 and retrenchment started having effect from 1.4.1987. 7. The claimant had examined Dr. Naresh Khandvala, orthopedic surgeon to prove her physical disability and the doctor had referred to the injury which had extended to lower back of body, with the observation that she could not squat or seat cross legs. She had to take support of a person. She had difficulty in climbing the stairs. The doctor after having examined movements of various parts of the body had considered 80.07% disability and had assessed 40.03% disability for the body as a whole. 8. Learned advocate Mr. She had to take support of a person. She had difficulty in climbing the stairs. The doctor after having examined movements of various parts of the body had considered 80.07% disability and had assessed 40.03% disability for the body as a whole. 8. Learned advocate Mr. Hemant S. Shah for the insurance company stated that the Tribunal has considered the amount under the head of future loss of income and also the medical expenses and the money has been paid under pain, shock and suffering and disfigurement and for special diet, attendant and transportation and actual loss of income. Total compensation amount of Rs. 2,82,914/- has been granted, while considering her contributory negligence of 15%. 9. The Tribunal has granted the compensation as under: Medical expenses Rs. 1,00,000/- Pain, shock and suffering Rs. 15,000/- Disfigurement Rs. 10,000/- Future loss of income Rs. 1,81,440/- Special diet Rs. 12,000/- Actual loss of income Rs. 14,400/- Total compensation Rs. 3,32,840/- 10. At the time of the accident, the claimant was having the income of Rs. 3,400/-. As per the school leaving certificate, she was 37 at the time of the accident. Thus, considering her job in the bank, 50% rise in income is assessed and hence, prospective rise in income would be Rs. 1,700/-. Accordingly, monthly income would be Rs. 5,100/-. Since the Doctor has given his calculation for assessment of 40% physical disability for the body as a whole, this court considers the same as functional disability to assess the future loss. Hence, in accordance to the income of Rs. 5,100/- with 40% functional disability applying multiplier of 15, she would be entitled for future loss of income as Rs. 3,67,200/-. (Rs. 5,100/- x 40% x 15 x 12). It is required to be mentioned that by way of retrenchment, the claimant has lost her job but at the relevant time during the course of trial, while recording the evidence, the explicit evidence of non-performance in her job was not brought on record, while the retrenchment is after judgment by the Tribunal, hence, this court is of view that 40% functional disability assessed hereinabove would justify the cause, instead of considering 100% functional disability. 11. 11. As per the evidence on record and as observed by the Tribunal, she had multiple fractures and the medical expenses proved on record shows six operations and plastic surgeries which has also been observed by the Tribunal concerned. The amount as granted under the head of pain, shock and suffering is not in conformity with the actual sufferings of the injured claimant. This court having considered the evidence on record is of an opinion that the amount under the head of pain, shock and suffering is required to be appropriately assessed. Hence, this court is of the view that Rs. 50,000/- should be granted under the said head. 12. The claimant had suffered injury which has led to disfigurement, the Tribunal has also granted Rs. 10,000/- under the head of disfigurement but this court considers the said amount would be inappropriate and hence, the same is enhanced to Rs. 50,000/-. 13. Medical expenses of Rs. 1,00,000/- has been proved on record. It is required to be noted that the claimant would be in need of future medical treatment. Thus, this court considers in proportion to the medical expenses already undergone and the age of the claimant and being a woman with the details of injury deposed by the doctor supported by medical examination, an amount of Rs. 70,000/- to be granted for future medical expenses. 14. As the Tribunal has failed to grant any amount under the head of transportation charges while has granted Rs. 12,000/- under the head of special diet but has also failed to take into consideration the amount for the attendance charges for the period she suffered to completely recover, hence, an amount of Rs. 70,000/- is granted under the head of special diet, attendant and transportation. 15. The claimant was not in a position to work for 20 months. Hence, considering the income of Rs. 3,400/- per month, under the said head, she would be entitled to amount of Rs. 68,000/- towards actual loss of income and further an amount of Rs. 85,000/- is also granted towards loss of enjoyment of life. 16. For the aspect of contributory negligence which has been assessed as 15% learned advocate Mr. Hence, considering the income of Rs. 3,400/- per month, under the said head, she would be entitled to amount of Rs. 68,000/- towards actual loss of income and further an amount of Rs. 85,000/- is also granted towards loss of enjoyment of life. 16. For the aspect of contributory negligence which has been assessed as 15% learned advocate Mr. Jhaveri submitted that the said assessment is not in accordance to the evidence on record, since the applicant claimant had stopped the vehicle at the cross road, where she was bound to stop and such evidence had come on record and the driver of the truck has not been examined by the insurance company and when there was evidence of the claimant as an eye-witness on record which has gone un-rebutted. Advocate Mr. Jhaveri submitted that 15% negligence has been wrongly attributed. 17. Countering the arguments, learned advocate Mr. Shah submitted that at the time of the accident, she was at the cross roads where she was required to take enough precaution to safeguard herself. The Panchnama was drawn by the police within a short period as shown by the witness and there is no reason to disbelieve the panchnama and thus, stated that by way of adverse inference too, negligence of the claimant is required to be considered, and the Tribunal has rightly assessed the same as 15%. 18. Having considered the submissions raised by both the advocates on record and the observation of the Tribunal, it is required to be noted that the accident has taken place at the cross roads where the claimant had stopped her moped and she had very clearly given the evidence that the truck had come in a very full speed and on the wrong side and dashed with her vehicle. She was dragged for about 15 feet. Learned advocate Mr. Jhaveri has relied upon the judgment in the case of Mangla Ram vs. Oriental Insurance Company Limited, (2018) 5 SCC 656 to state that the Tribunal has erred in considering the contributory negligence of the claimant. The facts as could be noted was that the claimant had stopped the vehicle at the cross road. The truck had come on the wrong side and in full speed had dashed with the claimant’s vehicle. The facts as could be noted was that the claimant had stopped the vehicle at the cross road. The truck had come on the wrong side and in full speed had dashed with the claimant’s vehicle. The insurance company has failed to examine the truck driver to contradict the evidence of the claimant, so merely on the basis of assumption, negligence cannot be attributed. The admitted fact on record is that the accident had occurred on four cross roads of S.G. highway. which is supported by the panchnama. The learned Tribunal has failed to observe as to how the claimant had contributed to the accident when she has denied the suggestion that at the time of the accident, she was trying to cross the road and the accident had occurred in the middle of the road. She has very categorically stated that she had seen the truck from the distance of 30 to 40 ft. and at the time of the accident her vehicle was in a stationery position at the four cross roads. No rebuttal evidence has been given by the insurance company. The driver of the truck has failed to appear before the court. Thus, the Tribunal’s assessment of contributory negligence of 15% of the claimant is not supported by any evidence on record. Hence, the said observation stands quashed and set aside. 19. In the result, the computation of the income would be as under: Future loss of income Rs. 3,67,200/- Pain, shock and suffering Rs. 50,000/- Disfigurement Rs. 50,000/- Actual medical expenses Rs. 1,00,000/- Future medical expenses Rs. 70,000/- Special diet, attendant charges and transportation expense Rs. 70,000/- Actual loss of income Rs. 68,000/- Loss of enjoyment of life Rs. 85,000/- Total compensation Rs. 8,60,200/- 20. As the Tribunal has granted compensation of Rs. 2,82,914/- with interest at the rate of 9% per annum, the claimants would be entitled to the enhanced amount of compensation of Rs. 5,77,286/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. 21. 5,77,286/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The enhanced amount is directed to be deposited within eight weeks from the date of receipt of writ of this Court. 21. From the said amount, 70% of the amount be given to the claimant on verification of the identity and rest of 30% be invested in a fixed deposit with any nationalized bank for a period of two years. Interest accruing on such Fixed Deposit shall be accumulated. After two years, total amount be given to the claimant without any reference to the court. 22. The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.