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2024 DIGILAW 1652 (GUJ)

Rustom Bomanji Ginwala v. Drive Ramdas Koli

2024-08-02

BIREN VAISHNAV, ISHA M.THAKORE

body2024
JUDGMENT : Nisha M. Thakore, J. 1. The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the “Act, 1988”) by the original claimant – appellant herein seeking enhancement of the award amount granted by the judgment and award dated 29.04.2009 by the Motor Accident Claims Tribunal (Main), Bharuch in MACP No.560 of 2004. 2.0. In nutshell, the occurrence of the accident as explained by the original claimant in the claim petition is reproduced here under: 2.1. On 07.01.2004, as per the case of the original claimant, he had boarded from Bharuch in an S.T. Bus bearing registration no.GJ-18-V-8124 to reach Dhule. While the said ST Bus had reached Surat Dhule Highway, the vehicle Jeep had broken down on that highway. It is further alleged that in the early morning hours at around 7 to 7.30 a.m. when Bus reached near the vicinity of Aamkled village, the Ashok Leyland vehicle Truck No. TN-28-V-7497 which was coming from the opposite direction hit the S.T. Bus. The accident took place on Surat-Nagpur Highway which falls within the limit of Sakri Road of Dhule Taluka Police Station of Maharashtra State. According to the claimant, both the vehicles were driven in full speed and in reckless manner, because of the negligence of the driver of both the vehicles, the accident had occurred. The impact was such that both the vehicles smashed and pressed from the driver’s cabin till the end part of the body of both the vehicles. Referring to the aforesaid facts, it is alleged that the drivers of both the vehicles could not control their respective vehicles and dashed with the road side stones and standing trees which resulted into the serious injuries to the passengers sitting inside the S.T. Bus. It is further contended that they were removed from the S.T. Bus and were immediately shifted to the hospital. 3.0. The claim petition was preferred by the claimant under section 166 of the Act, 1988, before the Motor Accident Claims Tribunal (Main), Bharuch, which was registered as MACP No.560 of 2004. In the aforesaid claim petition, the driver of ST Bus was joined as opponent no.1 and the Gujarat State Road Transport Corporation was joined as opponent no.2. The driver of the opposite vehicle was joined as respondent no.3 and owner of the said vehicle was joined as opponent no.4. In the aforesaid claim petition, the driver of ST Bus was joined as opponent no.1 and the Gujarat State Road Transport Corporation was joined as opponent no.2. The driver of the opposite vehicle was joined as respondent no.3 and owner of the said vehicle was joined as opponent no.4. The insurer of the offending vehicle Truck was joined as opponent no.5. Initially, the claimant had sought compensation of an amount of Rs.18 lakhs, which was subsequently enhanced to Rs.23 lakhs in view of the order passed below application at Exh.31, with interest at the rate of 18% p.a and proportionate cost, to be recovered from the opponents jointly and severally. 4.0. On service of summons, the driver of the S.T. Corporation chose not to enter his appearance and hence proceedings were conducted ex-parte, whereas S.T. Corporation was represented through the lawyer and the written statement was filed at Exh.26 followed by an amended written statement at Exh.33 denying the allegations made in the claim petition against them. The opponent nos. 3 and 4 were served through the registered post AD, however, they chose not to contest the claim petition and therefore, the Tribunal had proceeded ex-parte against them. So far as the insurer of the offending truck is concerned, it was represented through a lawyer and a written statement was also filed at Exh.29 denying their liability. The defence was raised with regard to valid and effective driving license. The amount of compensation claimed by the applicant – original claimant was objected to. The issue of age, income, expenditure of medical treatment and other expenses as well as permanent disability, occurrence of accident and claim amount were seriously objected. 5.0. The Tribunal considering the pleadings of the respective parties proceeded to frame the issue at Exh.22, which are reproduced here under : “1. Whether it is proved that the claimant sustained injuries on account of the rashness and negligence on the part of the drivers of the vehicles involved in the accident? 2. What amount the claimant is entitled to by way of compensation and from which of the opponents? 3. What order ?” 6.0. Whether it is proved that the claimant sustained injuries on account of the rashness and negligence on the part of the drivers of the vehicles involved in the accident? 2. What amount the claimant is entitled to by way of compensation and from which of the opponents? 3. What order ?” 6.0. On the issue of negligence on the part of drivers of vehicles involved in the accident after taking into consideration the submission made by the learned counsel appearing on behalf of respective parties as well as upon evaluation of the relevant oral as well as documentary evidence led by the original claimant, held the driver of S.T. Corporation negligent to the extent of 30% and the driver of the truck to the extent of 70%. While holding so, the Tribunal has taken into consideration the evidence of the claimant as well as evidence of the driver of S.T. Bus who had entered into the witness box. In light of the documentary evidence including the FIR given by PSI- Bhaskar Trambak Tidake at Exh.35, the panchnama of place of incident at Exh.36, the Tribunal noticed that the bus was stationed at the eastern side of the road and after leaving certain distance, the Truck was stationed which was facing towards western direction. It further transpires from the panchnama that the truck had gone extremely at the roadside and therefore, arrived at a conclusion that the truck driver was driving his truck at an excessive and uncontrollable speed. According to the Tribunal, had it been a case if the truck driver was driving the truck in a controlled manner, then after seeing the Bus coming from the opposite direction, he could have controlled the speed of the truck to avoid the occurrence of the accident. The other aspect which weighed with the Tribunal as evident from the scene of the accident is that the driver of the S.T. Bus had not kept proper distance between two vehicles and considering the fact that the accident had occurred in the morning and noticing from the deposition of the claimant that the work of culvert was in process, the Driver of S.T. Bus was expected to keep a safe distance between two vehicles, more particularly, when the road was a single line road. In view of the aforesaid finding, the Tribunal held the opponent no.1 and opponent no.3 to have contributed to the accident and had thereby fixed the negligence of driver of the S.T. Bus to the extent of 30% and driver of the Truck to the extent of 70%. The Tribunal disagreed with the contention of the original claimant with regard to the realization of compensation from any of the tortfeasor for the reasons that the respective drivers of the offending vehicle and the insurer of the truck were joined as party respondent. 6.1. On the aspect of computation of compensation, the Tribunal has awarded compensation mainly under the head of future loss of income, pain shock and suffering, actual loss of income, medicine and medical treatment, attending charges, supervision charges which the applicant had paid towards agriculture and transportation and special diet charges. The Tribunal has in detail examined the documentary evidence brought on record by the original claimant and has appreciated the oral evidence of the injured claimant. The injured claimant has brought on record the comprehensive evidence reflecting the serious injuries sustained by him and the prolonged treatment undergone for almost two years from the date of accident. In absence of any documentary evidence certificate in the nature of birth certificate placed on record, the Tribunal has considered age of the injured claimant as 62 years in light of the oral evidence of the claimant himself as well as the documentary evidence produced at Exhs.38, 43 and 44 where the applicant age at the time of treatment is mentioned as 62 years. The Tribunal has accordingly adopted the multiplier of 5. As regards the income of the injured claimant is concerned, extensive documents have been produced by the original claimant in support of his case about income derived from his holding of agriculture land and commission work with different firms. The Tribunal has bifurcated the income accordingly under the two heads i.e. (1) derived from the commission work and other from agricultural activities. As regard the income derived from the commission work is concerned, in absence of any corroborative evidence led by the claimant, the Tribunal on guess work has determined the income generated from commission work as Rs.2000/- per month. So far as income derived from agriculture work is concerned, the Tribunal has taken into consideration the document produced at Exhs. As regard the income derived from the commission work is concerned, in absence of any corroborative evidence led by the claimant, the Tribunal on guess work has determined the income generated from commission work as Rs.2000/- per month. So far as income derived from agriculture work is concerned, the Tribunal has taken into consideration the document produced at Exhs. 74 and 75 which relates to the supervision charge of agriculture borne by the claimant as Rs.4000/- per month. Thus, the Tribunal has determined the income of the injured claimant as Rs.6000/- per month, at the time of accident. The Tribunal has taken into consideration the pursis produced on record at Exh.91, whereby, the permanent disability certificate issued by Dr. Pankaj Divatia, M. S. (Ortho) of Apollo Hospitals, Ahmedabad at Exh.92, which reflects permanent partial disablement of 45%, has been reduced and considered as 22.5% of the body as a whole. The Tribunal has accordingly determined the compensation towards the future loss of income and the actual loss of income which is restricted for one year. So far as rest of the claims put forward by the injured claimant is concerned, the Tribunal has in large accepted the case of the original applicant. Thus, the Tribunal has by impugned judgment and award held the applicant entitled to get total amount of compensation of Rs.11,15,936/- as under : Particulars Amount (Rs.) Future loss of income 81,000/- Pain, shock and sufferings 50,000/- Actual loss of income for one year 72,000/- Medicines and medical treatment 7,65,836/- Attendant charges 42,100/- Supervision charges which the applicant has paid towards agriculture 80,000/- Transportation and special diet charges 25,000/- Total Compensation 11,15,936/- 6.2. The Tribunal has further awarded interest on the aforesaid amount of compensation at the rate of 9% pa from the date of filing of claim petition till its realization. The opponents no. 1 to 5 are held jointly and severally liable to pay an amount of compensation in terms of their liability determined. The injured claimant being aggrieved by the aforesaid determination of compensation on the lower side has, therefore, approached this Court by preferring present appeal. Hence, this appeal under Section 173 of the Act, 1988 seeking enhancement of compensation. 7.0. This Court considered the grounds raised in the appeal and upon hearing the learned counsel for the appellant by order dated 4.5.2010 had admitted the appeal. Hence, this appeal under Section 173 of the Act, 1988 seeking enhancement of compensation. 7.0. This Court considered the grounds raised in the appeal and upon hearing the learned counsel for the appellant by order dated 4.5.2010 had admitted the appeal. Pending the appeal, the appellant- original claimant had expired on 07.08.2019, the application for bringing the heirs and legal representatives of the deceased claimant was preferred along with delay application, which was allowed by order dated 20.01.2022. The matter was pressed for hearing by the learned counsel for the appellant. Noticing the fact that the appeal relates to 2010 and the advance age of the wife of the deceased claimant, the matter was heard finally. 8.0. We have heard Mr. R.R. Marshall, learned senior counsel who has appeared with Mr. Bomi Shethna, learned advocate on record for the appellant and Mr. Vibhuti Nanavati, learned advocate who has appeared on behalf of opponent no.5- Insurance Company. Rule issued by this Court has been duly served upon the rest of the respondents, however they have chosen not to contest the present appeal. 9.0. Learned senior counsel appearing for the appellant, at the outset, has invited our attention to the fact that the present appeal is strictly sought for enhancement of compensation under the head of future loss of income vis-a-vis actual loss of income as well as for non pecuniary loss precisely under pain, shock and suffering and loss incurred towards amenities of life. On the aspect of determination of income, learned senior counsel has invited our attention to the documentary evidence brought on record by the claimant, more particularly, the income tax return statements placed on record at Exhs. 72 to 75. By referring to the aforesaid documents, learned senior counsel has submitted that on bare reading of the said income tax return statement indicates that the claimant annual income for AY 2001-02 was Rs.1,28,000/- at Exh.72, for AY 2002-03 at Exh.73 his annual income was Rs.1,42,750/-, for AY 2003-04 at Exh.74 applicant annual income was shown to be Rs.67,040/- and for AY 2004-05 at Exh.75 the applicant income was Rs.1,26,400/-. Learned senior counsel has further submitted that accordingly in the written argument tendered at Exh.100, the claimant had prayed for compensation of Rs.23,42,759/- as against that the tribunal has awarded compensation of Rs.11,15,936/-. Learned senior counsel has further submitted that accordingly in the written argument tendered at Exh.100, the claimant had prayed for compensation of Rs.23,42,759/- as against that the tribunal has awarded compensation of Rs.11,15,936/-. 9.1 Learned senior counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Malarvizhi vs United India Insurance Co. Ltd. reported in (2020) 4 SCC 228 to contend that the income tax return statement are to be considered as valid piece of evidence for the purpose of determination of the income of the claimant in motor accident cases. According to him, the income of the injured claimant was required to be re-determined as Rs.17,229/- instead of Rs.6000/- per month as determined by the Tribunal. It was further submitted that the Tribunal committed a serious error in adopting a multiplier of 5 instead of 7. The reliance was placed on the decision of the Hon’ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 . 9.2 It was submitted that though the Tribunal has appreciated the extensive medical case papers brought on record, which clearly indicates the prolonged treatment undergone by the claimant for two years, the Tribunal has restricted the determination of actual loss of income for one year instead of 2 years. He has, therefore, submitted that the amount of compensation awarded under the head of actual loss as Rs.72,000/- is required to be modified to Rs.4,13,496/-. Apart from the aforesaid enhancement of compensation sought for, learned senior counsel has submitted that the attendance charges were also required to be modified in light of the prolonged treatment undergone by the claimant. He has therefore urged before us to consider the amount of Rs.84,250/- towards attendance charges instead of Rs.42,100/- as awarded by the Tribunal. The prayer was also made to reconsider the amount of compensation under the head of special diet and transportation by accepting the enhanced amount of claimant for Rs.27,300/- instead of Rs.25,000/- as awarded by the Tribunal. 9.3 Lastly, learned senior counsel has highlighted the multiple operations undergone by the claimant right from the date of accident till lastly when he was hospitalized and operated on 11.4.2005. 9.3 Lastly, learned senior counsel has highlighted the multiple operations undergone by the claimant right from the date of accident till lastly when he was hospitalized and operated on 11.4.2005. According to learned senior counsel, the claimant has undergone 11 operations during this tenure and he was hospitalized for almost 158 days and was bedridden for almost one year and four months. Our attention was invited to the fact that the claimant was mainly deriving his income from agriculture activities out of holding of his agricultural land and from the commission work. Because of the prolonged treatment and the multiple operations undergone, the claimant has to manage medical expenses and at the same time has to incur the expenses to make alternative arrangements for supervision of his agriculture fields. He has fairly conceded that the Tribunal has awarded just and proper compensation under the head of medical expenses and the expenses incurred towards supervision work. However, he has submitted that the person had undergone not only physical trauma but also mental agony for no fault of his own and had therefore urged to re-determine the amount of compensation awarded under the head of pain, shock and suffering and the loss towards amenities of life. Learned senior counsel has therefore urged to enhance the compensation to the tune of Rs.2.5 lakhs under the head of pain, shock and suffering and Rs. 2 lakhs towards loss of amenities of life. 9.4 While referring to the medical case papers, learned senior counsel, at the outset, had invited our attention to the nature of operation undergone, the fact that treatment had continued for a period of almost two years. The operation was unsuccessful and there was no reunion of tibia fibula bone, the grafting of bone was attempted however, the claimant had suffered permanent disability as the accident had resulted in shortening of leg with amputation of all toes. He has therefore urged to allow the appeal and to pass appropriate order by accepting his claim for enhanced compensation under the aforesaid heads. 10. Mr. Vibhuti Nanavati, learned advocate for the respondent- Insurance Company has vehemently objected to the aforesaid submissions. At the outset, he has referred to and relied upon the statement of income tax return submitted by the original claimant at Exhs. 72 to 75. 10. Mr. Vibhuti Nanavati, learned advocate for the respondent- Insurance Company has vehemently objected to the aforesaid submissions. At the outset, he has referred to and relied upon the statement of income tax return submitted by the original claimant at Exhs. 72 to 75. By referring to the aforesaid statements, learned counsel has invited our attention to the fact that the statement of income returns reflects the gross income details also includes the income derived from the dividend, interest earned on advance loan and the income of the saving account. He has not disputed the fact that the claimant had earned income from the commission work as well as from the agriculture activities, however, income derived from NSC certificate, loan advance, savings account reflected annual or gainful income of the injured income being not affected by the accident, are required to be excluded. According to him, the capital amount was retained as it is. He has, therefore, urged to consider annual income of Rs.72,600/- for the AY 2002-03 and Rs.92,200/- for AY 2003-04. He had further submitted to determine the average of aforesaid previous two assessment years and accordingly fix the annual income to Rs.84,200/- pa i.e. Rs.7,060/- per month. 10.1 On the aspect of permanent disability, learned counsel has referred to and relied upon the pursis filed by the original claimant as endorsed by the learned counsel for the Insurance Company before the Tribunal which is marked at Exh.91. It was submitted that the parties have agreed to treat the disability to the extent of 22.5% of the body as a whole and he has therefore submitted that the claimant cannot subsequently raise grievance for reduced disability. He has therefore urged that not to interfere with the aforesaid findings of the Tribunal. 10.2 On the aspect of enhancement of compensation sought for on the actual loss of income, learned counsel has not objected to consider it for two years. On the aspect of attendance charges and transportation and special diet is concerned, Learned counsel has fairly submitted that to consider the same. On the issue of enhancement of compensation towards loss of amenities of life, Learned counsel has urged to pass appropriate order taking into consideration the prolonged treatment undergone by the claimant. On the aspect of attendance charges and transportation and special diet is concerned, Learned counsel has fairly submitted that to consider the same. On the issue of enhancement of compensation towards loss of amenities of life, Learned counsel has urged to pass appropriate order taking into consideration the prolonged treatment undergone by the claimant. 10.3 At this stage, learned counsel has further invited our attention to the relevant observations of the Constitutional Bench of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi & ors reported in (2017) 16 SCC 680 on the issue of additional income to be determined under the head of future prospects. It was pointed out that considering the age of the original claimant to be 62 years in absence of any observations of the Hon’ble Supreme Court on the aspect of addition on future prospects, beyond 60 years, no further enhancement is required to be considered. 11. In rejoinder, Mr. R.R. Marshall, learned senior counsel, has pointed out that in the peculiar facts and circumstances, it cannot be ruled out that savings in the NSC certificate, dividend or interest incurred on the loan advance or the amount lying in the savings account must have been corroded to meet with the medical expenses. He has therefore urged to consider the gross income of the claimant as reflected in the statement of ITR as proof of income. He has emphasized on the facts that even the Hon’ble Supreme Court in the case of Malarvizhi(supra) held so. As regard the last submission made by learned counsel for the Insurance Company on the issue of addition on future prospects, in view of the Constitutional Bench decision in the case of Pranay Sethi (supra) is concerned, the learned senior counsel has submitted that the Hon’ble Supreme Court has otherwise also not opined that the claimant shall not be entitled to addition on future prospects beyond 60 years. It was submitted that this being a grey area, this Court can always determine to meet with the criteria of just and proper compensation which is the underlying object of Motor Vehicles Act. 12. We have carefully considered the submissions made by the learned counsel for the respective parties and have also perused the original record and proceedings and the judgment relied upon by the learned counsel for the appellant- original claimant. 13. 12. We have carefully considered the submissions made by the learned counsel for the respective parties and have also perused the original record and proceedings and the judgment relied upon by the learned counsel for the appellant- original claimant. 13. Before proceeding with the aspect of computation of compensation under the different heads as sought for, we cannot ignore the fact that the original injured claimant has expired pending this appeal. As evident from the order sheet of the present appeal, the original claimant deceased Rustom Bomaji Ginwala – original appellant is reported to have expired on 7.8.2019 and the applicant is thereafter permitted to be impleaded as legal heirs of original appellant who is wife of the original appellant. This bring us to the law laid down by the Hon’ble Supreme Court in the case of The Oriental Insurance Company Limited vs. Kahlon @ Jasmail Singh Kahlon (deceased) through his Legal Representative Narinder Kahlon Gosakan and Another reported in AIR 2021 SC 3913 wherein the Hon’ble Supreme Court while answering the issue as to whether the legal heirs can pursue the claim in case of death. The Court held that while claims for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, the claims for loss of estate caused were available to and could be pursued by the legal representatives of the deceased in the appeal. The Court further disallowed the compensation sought for under the head of pain, shock and suffering by considering such claims being related to personal injuries. The Court further clarified that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. While holding so, the Court had upheld the view taken by the learned Judge of this Court in the case of Madhuben Maheshbhai Patel vs. Joseph Francis Mewan and Ors reported in 2015 (2) GLH 499 . While holding so, the Court had upheld the view taken by the learned Judge of this Court in the case of Madhuben Maheshbhai Patel vs. Joseph Francis Mewan and Ors reported in 2015 (2) GLH 499 . In light of the aforesaid ratio of the Hon’ble Supreme Court, the prayer sought for by the original claimant under the head of pain, shock and suffering and loss of amenities of life are concerned, the same are more related to the personal injuries of the injured claimant which cannot form part of loss of estate, though learned counsel for the respondent has not objected to the entitlement of such amount, however in view of the aforesaid ratio, we are unable to accept the prayer made by the learned counsel for the appellant- original claimant. 14. Having held so, the present appeal is examined on the limited aspect of enhancement of claimed compensation under the remaining heads, essentially, under the head of future loss of income, vis-a-vis actual loss of income and the enhancement sought for under the head of attendance charges are concerned. 15. INCOME : 15.1. Admittedly, there is no challenge to the impugned judgment and award at the end of the Insurance Company and therefore, in absence of any challenge of the Tribunal’s finding on the age of the claimant and the date of birth as reflected in ITR’s is concerned, we have considered the age of claimant as 62 years at the time of accident. This brings us to the issue of income of the injured claimant. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Malarvizhi (supra) and as rightly not disputed by the learned counsel for the respondent- Insurance Company, the statement of income tax return can be treated as best piece of evidence for the purpose of determination of income being a statutory document. 15.2. As rightly pointed out by learned counsel for the respondent, upon appreciation of evidence of the aforesaid statement of income tax return placed on record at Exhs. 72 to 75 clearly indicates the income derived by the original claimant under the three different heads. 15.2. As rightly pointed out by learned counsel for the respondent, upon appreciation of evidence of the aforesaid statement of income tax return placed on record at Exhs. 72 to 75 clearly indicates the income derived by the original claimant under the three different heads. Firstly income derived from the agriculture activities, secondly, income which is derived from the commission work and lastly the income earned from the investment made by the original claimant in the form of NSC certificate, dividend and saving account with SBI Bank. So far as the income derived from the commission is concerned, though being not a stable source of income, the Tribunal ought not to have discarded the same in absence of any corroborative evidence being brought on record by the injured claimant. The oral evidence of the injured claimant was corroborated by the statutory document i.e. the income tax return itself. So far as the income derived from the agriculture activity is concerned, the same is required to be accepted, being disclosed in the ITR under the head of gross income. We, therefore, agree with the submission made by the learned counsel for the appellant to consider the two previous year income tax return filed by the injured claim at Exhs. 72 and 73 as valid evidence available on record for the purpose of determination of income of injured claimant. 15.3. As regard submission made by respondent counsel for deduction of stable income of savings, dividends, NSC certificate are concerned, what is required to be determined while examining the issue of future loss of income is concerned, is the earning capacity of the original claimant. Merely because, the income derived from the dividends, NSC certificate or saving account is not affected after the accident whether the same is required to be deducted to determine the earning capacity of the claimant. 15.4. We are guided by two Judge Bench decision in the case of Mrs. Helen C. Rebello & Ors vs Maharashtra State Road Transport reported in (1999) 1 SCC 90 , the Hon’ble Supreme Court has held that amounts which was to be received by deceased by way of provident fund, pension, life insurance policy, bank balance, shares, fixed deposits, etc. are “pecuniary advantage” derived by the heirs on account of death of the deceased and hence this amount have no co-relation with compensation received by the deponents under the Motor Vehicles Act. are “pecuniary advantage” derived by the heirs on account of death of the deceased and hence this amount have no co-relation with compensation received by the deponents under the Motor Vehicles Act. 15.5. Again in the case of United India Insurance Company Limited & Ors. vs. Patrica Jean Mahajan And Ors. reported in (2002) 6 SCC 281 , the Hon’ble Supreme Court had an occasion to examine the case of the deceased husband who was a practicing doctor in United State of America and the deponent wife had received unemployment allowance which led the Insurance Company to raise contention that such amount has to be deducted from the compensation to be assessed under the Motor Vehicles Act. The Hon’ble Supreme Court broadly interpreted the term “receipts from whatsoever source” and upheld the decision of the High Court disallowing such deduction on account of Insurance Policy or social security system. The Hon’ble Supreme Court further observed that such deduction would defeat the purpose of the Act which otherwise provided of just compensation on account of accident death. The Court further observed that such gains, would not go to the benefit of the wrong doer and the claimant should not be left worse of, if he had never taken an Insurance Policy or had not made investments for future returns. 15.6. Later on in the case of Reliance General Insurance Comp. Ltd vs. Shashi Sharma & Ors. reported in (2016) 9 SCC 627 , the three Judge Bench of the Hon’ble Supreme Court observed as under : “15. The principle expounded in this decision that the application of general principles under the common law to estimate damages cannot be invoked for computing compensation under the Motor Vehicles Act. Further, the “pecuniary advantage” from whatever source must correlate to the injury or death caused on account of motor accident. The view so taken, is the correct analysis and interpretation of the relevant provisions of the Motor Vehicles Act of 1939, and must apply propriovigore to the corresponding provisions of the Motor Vehicles Act, 1988. This principle has been restated in the subsequent decision of two Judges’ Bench in Patricia S.Mahajan’s case (supra), to reject the argument of the Insurance Company to deduct the amount receivable by the dependents of the deceased by way of “social security compensation” and “Life Insurance Policy”. 15.7. This principle has been restated in the subsequent decision of two Judges’ Bench in Patricia S.Mahajan’s case (supra), to reject the argument of the Insurance Company to deduct the amount receivable by the dependents of the deceased by way of “social security compensation” and “Life Insurance Policy”. 15.7. Thus, it is well settled principle of law that “pecuniary advantage” from the “whatsoever source” derived, it cannot be subjected to deduction from the amount of compensation. The only corollary which follows from the aforesaid decision indicates that even in case of investment in the form of dividends, savings account, NSC certificate as reflected in the ITR filed by the injured claimant indisputably are on account of claimant ability to earn income. Normally, in the event of no accident having occurred, the claimant ability to generate more income would have contributed more towards savings. Therefore, merely for the fact that the savings account, dividends, interest or loan or advances have remained un-affected by the occurrence of accident, the same may not be treated towards the future loss of income, in our opinion, would depend upon the facts of each case. There cannot be a general principle to lay down that such savings are to be ignored while determining the earning capacity of the claimant, the mandate is otherwise. The Courts are under obligation to grant “just compensation” under the Motor Vehicles Act. 15.8. It would be appropriate to refer to the decision of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Indira Srivastava and Ors reported in (2008) 2 SCC 763 where in fatal accident case the Court had examined the question of various components of deceased salary as part of “income”. The Court while taking into consideration the argument of claimant that the term “income” has different connotation observed as under : “9. The term 'income' has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms. 10. Loss caused to the family on a death of a near and dear one can hardly be compensated on monetory terms. 10. Section 168 of the Act uses the word 'just compensation' which, in our opinion, should be assigned a broad meaning. We cannot, in determining the issue involved in the matter, lose sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory Provident Fund, Gratuity and other perks to attract the people who are efficient and hard working. Different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family. If some facilities are being provided whereby the entire family stands to benefit, the same, in our opinion, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. For the aforementioned purpose, we may notice the elements of pay, paid to the deceased : Basic 63,400.00 Conveyance Allowance 12,000.00 Rent Co Lease 49,200.00 Bonus (35% of Basic) 21,840.00 TOTAL 1,45,440.00 In addition to above, his other entitlements were : Con. to PF 10% Basic Rs.6,240/- (p.a.) LTA reimbursement Rs.7,000/- (p.a.) Medical reimbursement Rs.6,000/- (p.a.) Superannuation 15% of Basic Rs.9,360/- (p.a.) Gratuity Cont.5.34% of Basic Rs.3,332/- (p.a.) Medical Policy-self & Family @ Rs.55,000/- (p.a.) Education Scholarship @ Rs.500 Rs.12,000/- (p.a.) Payable to his two children Directly" 21. If the dictionary meaning of the word 'income' is taken to its logical conclusion, it should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income-tax or profession tax although some elements thereof may or may not be taxable or would have been otherwise taxable but for the exemption conferred thereupon under the statute. 22. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [ (1985) 1 SCC 18 ], this Court took into consideration the pay packet of the deceased. 23. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [ (2005) 6 SCC 236 ], this Court held : "8. 22. In N. Sivammal & Ors. v. Managing Director, Pandian Roadways Corporation & Ors. [ (1985) 1 SCC 18 ], this Court took into consideration the pay packet of the deceased. 23. We may notice that in T.N. State Transport Corporation Ltd. v. S. Rajapriya & Ors. [ (2005) 6 SCC 236 ], this Court held : "8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together. 9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase. 10. Much of the calculation necessarily remains in the realm of hypothesis "and in that region arithmetic is a good servant but a bad master" since there are so often many imponderables. In every case "it is the overall picture that matters", and the court must try to assess as best as it can the loss suffered." 24. Yet again in New India Assurance Co. Ltd. v. Charlie & Anr. [ (2005) 10 SCC 720 ], the same view was reiterated. However, therein although the words 'net income' has been used but the same itself would ordinarily mean gross income minus the statutory deductions. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [ (2007) 3 SCC 538 ]. 25. The expression 'just' must also be given its logical meaning. We must also notice that the said decision has been followed in New India Assurance Co. Ltd. v. Kalpana (Smt.) & Ors. [ (2007) 3 SCC 538 ]. 25. The expression 'just' must also be given its logical meaning. Whereas it cannot be a bonanza or a source of profit but in considering as to what would be just and equitable, all facts and circumstances must be taken into consideration.” In light of the aforesaid legal principles laid down by the Hon’ble Supreme Court, what can be discern is that the while determining the future loss of income the earning capacity of the claimant would ordinarily relate to gross income minus statutory deduction. 15.9. Applying the aforesaid principle in the facts of the case, what we could notice on bare comparison of the income tax returns placed on record at Exhs. 72 and 73. The comparison chart of Exhs. 72 and 73 reads as under : “Exh.72. Form 2 D= AY 2002-03 ((01.04.2001 to 31.3.2002) I Commission Income Rs.39,000/- II Interest on NSC certificate Rs.3,680/- Interest on Saving Accounts Rs.1,110/- Interest on Loan and Advance Rs.51,800/- Total Income Rs.95,590/- Rs.56,590/- + Rs.39,000/- - (Rs.4790/- (interest from Bank)=Rs.90,800/- Tax on Total Income Rs.8,160/- Total Income minus Tax 82,640 III Agriculture Income Rs.37,200/- IV Aggregate Income Rs.82640/- + Rs.37,200/- = Rs.1,19,840/- Also, LIC Premium Rs.37,884/- NSC Income Rs.3,680/- PPF Rs.18,000/- Total Rs.59,564/- “Exh.73. Form 2 D= AY 2003-04 (1.4.2002 to 31.3.2003) I Commission Income Rs.43,500/- II Dividend Income Rs.2500/- Interest on Saving Accounts, Loans & Advance Rs.55,150 Total Income Rs.57,650/- III Agriculture Income Rs.48,700 Total Gross Income Rs.1,01,150/- Deduction at source Rs.7,100/- Income less deduction Rs.94,050/- Income Tax Rs.8,810/- Total Income minimum tax Rs.85,240/- Investment and Rebates Rs.28,500/- + Rs.30,000/- = Rs.58,500/- IV Aggregate Income Rs.85,240/- + Rs.48,700/- = Rs.1,33,940/- 15.10. Thus, on bare perusal of the aforesaid details of the two previous assessment years of the injured claimant clearly indicates the steep rise of 11% to 12% in the income derived from the commission work i.e. from Rs.39,000/- to Rs.43,500/-. Similarly, the rise is noticed in the income generated from the agriculture activities i.e. from Rs.37,200/- to Rs.48,700/-. Even interest amount earned from the different forms of savings has rise by 0.9% i.e. Rs.56,592/- to Rs.56,660/-. Similarly, the rise is noticed in the income generated from the agriculture activities i.e. from Rs.37,200/- to Rs.48,700/-. Even interest amount earned from the different forms of savings has rise by 0.9% i.e. Rs.56,592/- to Rs.56,660/-. On overall appreciation of the aforesaid previous year ITR’s of the injured claimant, clearly suggest rise in his income prior to the date of accident i.e. prior to 7.1.2004, which certainly corresponds to his desire to invest in Savings. The different source of income reflects his earning capacity which has correspondence effect on his savings. 15.11. In light of principle laid down, the submission of respondent Insurance Company that there would not be any actual loss of income because of the accident as the income derived from the investment since continued after the accident and therefore, would not be relevant to determine future loss of income, is not valid. Thus, the actual loss of income of the injured claimant is determined based on two previous year income tax returns submitted by the injured claimant as Rs.1,19,840/-(at Exh. 72) as Rs.1,33,940/-(at Exh.73). Accordingly, the average of the aforesaid income of the respective assessment year comes to Rs.2,53,780/- (Rs.1,19,840/- + Rs.1,33,940/-) i.e. Rs.1,26,890/- pa, which comes to Rs.10,575/- per month. 16. Permanent Disability: 16.1 This brings us to the issue of permanent disability which is determined as 22.5% of the body as a whole in light of the pursis submitted at Exh.91 by the advocate on record of the claimant and as endorsed by the learned advocate for the Insurance Company before the Tribunal. We deprecate this procedure adopted by the Tribunal of determining the permanent disability based on the pursis tendered by the practitioner appearing before the Tribunal. It is high time to remind all the Tribunals across the State about the mandatory guidelines issued by the Hon’ble Supreme Court way back in the year 2010. The Hon’ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar and Another reported in (2011) 1 SCC 343 had succinctly explained the significance of the assessment of damages objectively and to exclude from consideration any speculation or fancy while determining the compensation awarded in personal injuries cases. Not only that, the Supreme Court has also emphasized on the mode and method of assessment / evaluation of the medical evidence. Not only that, the Supreme Court has also emphasized on the mode and method of assessment / evaluation of the medical evidence. The Hon’ble Supreme Court emphasized and heavily stressed on the necessity and importance of the understanding the significance of medical evidence by the Tribunal for the purpose of assessing physical and functional disability. In the process, the Hon’ble Supreme Court has directed the Tribunal to refer the matter to the Medical Board for assessment of the disability. It would be germane, at this stage, to refer to the relevant provision made in law as regards assessment of disability is concerned. Upon introduction of the Rights of Persons with Disability Act, 2016 in view of the powers conferred by Section 56 of the said Act, the Central Government through Ministry of Health and Family Welfare has framed the guideline for the purpose of assessing disability. Later on the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment had constituted an expert committee and has thereafter suggested guidelines for evaluation and procedure for certification of various specified disabilities. Such guidelines have been notified in the form of a circular dated 5.1.2018. Even recently, the Hon’ble Supreme Court in the case of Bajaj Allianz General Insurance Company Private Limited vs. Union of India and Ors. in Writ Petition (Civil) No.534 of 2020 and thereafter in the case of SIDRAM vs. The Divisional Manager, United India Assurance Co. Ltd., order dated 16.11.2022 in SLP (Civil) No. 19277 of 2018 has reiterated the principle laid down in the case of Rajkumar (supra) and has directed the Tribunal to mandatory follow the same in order to maintain Pan India Uniformity across the country. 16.2 In the facts of the case, original proceedings relates to 2004 and the impugned judgment and award came to be passed on 29.04.2009 which is preceding the aforesaid guidelines. Hence, we do not find any fault with the approach of the Tribunal. However, we take this opportunity to reiterate the aforesaid guidelines laid down by the Hon’ble Supreme Court to be strictly adhered to in the future course of adjudication of the claim petitions as regards determination of the permanent disability is concerned. Hence, we do not find any fault with the approach of the Tribunal. However, we take this opportunity to reiterate the aforesaid guidelines laid down by the Hon’ble Supreme Court to be strictly adhered to in the future course of adjudication of the claim petitions as regards determination of the permanent disability is concerned. 16.3 Having opined so, in the facts of the case the original claimant had sustained serious injuries including (1) CLW (Lt.) face just lateral to (Rt) eye 4 cm x 2 cm x 1 cm (2) fracture on Rt. shoulder joint tenderness (3) fracture on Right arm U/3rd tenderness (4) crush injury on left leg with compound fracture on left leg with ankle joint and (5) CLW on Rt. let with a separate part from the great toe to the last toe of the right leg 10 cm x 5 cm x 2cm. The original claimant was admitted as an indoor patient in the hospital of Dr. Gautam Shah, M. S. Ortho. We would like to reproduce the different operation undergone by the claimant and the prolonged treatment as submitted by the learned senior counsel for the appellant. Date Particulars 07.01.2004 Accident, on the same day admitted in hospital of Dr. Gautam Shah (M S Orthopedic) for a period of 40 days during which three different operations were performed. 07.01.2004 Amputation of all toes of the right foot under General Anesthesia. 16.01.2004 Iron rod inserted in left leg Tibia and debridement to wound on left leg & right Foot under general anesthesia. 13.2.2004 3rd operation for skin grafting to cover both wounds on left leg & right foot after taking discharge from Hospital of Dr.Gautam Shah was shifted in ambulance Hospital of Dr. R J Sheth (Hospitalized for 1 ½ months as indoor patient) Operated and Illizarov fixation of leg was removed & wound cleaned by Dr. Ajit Patel, Vadodara. 23.10.2004 Again admitted with Dr. Gautam Shah & Illizarov fixation was done and new screws & plates were inserted by removing old Screws & Plates inserted (Hospitalized for 7 days). 08.12.2004 Operated and Illizarov adjusted (Hospitalized for 4 days) 23.02.2005 Ilizarov fitted in the left leg were removed as the bone of Tibia-Fibula was decayed and the wound was open and pus was oozing out, therefore, nails of Ilizarov were removed by Dr. Hriday Vaid at Shridhaj, Orthopedic Hospital, Ahmedabad. 01.03.2005 Dr. 08.12.2004 Operated and Illizarov adjusted (Hospitalized for 4 days) 23.02.2005 Ilizarov fitted in the left leg were removed as the bone of Tibia-Fibula was decayed and the wound was open and pus was oozing out, therefore, nails of Ilizarov were removed by Dr. Hriday Vaid at Shridhaj, Orthopedic Hospital, Ahmedabad. 01.03.2005 Dr. Hriday vaid opined that there is no possibility of reunion of bones & so they were joined with nails and screw (5 days). 12.03.2005 Operated at Apollo Hospital, Ahmedabad by Team of 3 doctors (Dr. Harshvardhan Hedge, Dr. Pankaj Divetia & Dr. Maulik Patwa) Cleaned left leg bone by removing decayed portion after which bone was adjusted & 4 Nails / rods were inserted (11.3.2005 -03.05.2005 indoor patient at Apollo Hospital). 11.04.2005 Again operated at Apollo Hospital by a panel of 3 doctors (Dr. Munshi, Dr. Patwa & Dr. Divetia) performed two operations- Bone grafting done after removing bone from thigh and skin grafting done by taking skin from left leg. Leg rotated from tibia-fibula due to which Leg is shortened by 3 inch & amputation of all fingers of leg. Total 1 operations and 158 days Hospitalization & bedridden for almost 1 year and 4 months. 16.4. It further transpires from the original record and proceedings, more particularly, medical case papers corroborates the facts that the claimant had undergone multiple operations, his left leg was initially guarded by ilizarov fitters which continued for almost one year. Ultimately, the doctor had arrived at an opinion that there was no possibility of re-union of bones of tibia-fibula. As a last attempt two operations of bone grafting were performed after removing bone from thigh followed by skin grafting which was taken from his left leg resulting in permanent disability to the extent that the left leg rotated from tibia-fibula due to which leg was shortened by 3 inches. It also transpires that there was amputation of all toes of the right foot. To establish the permanent disability the claimant had placed on record the permanent partial disability certificate issued by Dr. Pankaj Divatia, M. S. (Ortho) of Apollo Hospitals, Ahmedabad which is produced at Exh.92. The aforesaid certificate suggests that the injured claimant has suffered permanent partial disablement of 45%. The Tribunal without appreciating the nature of serious injuries and its predicament on the life of the injured claimant has straightway placed reliance on the pursis produced at Exh.91. Pankaj Divatia, M. S. (Ortho) of Apollo Hospitals, Ahmedabad which is produced at Exh.92. The aforesaid certificate suggests that the injured claimant has suffered permanent partial disablement of 45%. The Tribunal without appreciating the nature of serious injuries and its predicament on the life of the injured claimant has straightway placed reliance on the pursis produced at Exh.91. Considering the declaration made by learned counsel appearing on behalf of the claimant as well as Insurance Company, the Tribunal has considered 22.5% of the body as a whole as permanent disablement for the purpose of determining loss of future income of claimant. In our view, the Tribunal ought to have independently examined and determined the permanent disability looking to the serious injuries sustained by the original claimant. It would be appropriate to reproduce the relevant observations of the Hon’ble Supreme Court in the case of Rajkumar (supra) explaining the approach of the Tribunal to determine the permanent disability and the ascertainment on effect of permanent disability on the actual earning capacity. “8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation,after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995('Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 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 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. 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 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 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, 2010 (10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd., 2010 (8) SCALE 567 ). 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 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 ability (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. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 16. 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'. 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. 17. 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. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 19. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. 19. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” 16.5 Applying the aforesaid principle in the facts of the present case, the correct approach for determination of the permanent disability is not only restricted to physical disability but also to take into consideration the functional disablement which ultimately affects the earning capacity of the injured claimant. Taking into consideration the serious multiple injuries sustained by the original claimant, the most affected part were both the legs. It was evident from the injury certificate that there was crush injury on the left leg with compound injury on the left leg with ankle joint and CLW injuries noticed on the right leg and finger amputation of all the toes of the right leg. On overall appreciation, the medical expert opinion given by Dr. Pankaj Divatia who is M. S. (Ortho) associated with Apollo Hospitals, Ahmedabad, which has been brought on record at Exh.92 clearly opines that the claimant has suffered permanent partial disablement of 45%. In light of the aforesaid opinion of the medical expert and any contrary evidence being brought on record, the Tribunal ought not to have reduced the permanent disability merely on the basis of the pursis placed on record by the learned advocates appearing before the Tribunal. 16.6. In light of the aforesaid opinion of the medical expert and any contrary evidence being brought on record, the Tribunal ought not to have reduced the permanent disability merely on the basis of the pursis placed on record by the learned advocates appearing before the Tribunal. 16.6. As held by the Hon’ble Supreme Court in the case of Rajkumar (supra), the Tribunals are entrusted with the duty to meet with the object of special enactment which is benevolent legislation. The provision of Motor Vehicles Act makes it amply clear that award must be “just”, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The Hon’ble Supreme Court further observed that the person is not only required to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. The Hon’ble Supreme Court emphasized that this means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. We are therefore of the opinion that the Tribunal ought to have examined the issue of permanent disability independently. It was for the Tribunal to determine the extent of disability incurred by the injured claimant on his earning capacity, more particularly, by taking into consideration his profession. 16.7. Indisputably, his major earning is from agricultural activity and from self employed commission work. To attend his work he has to move around. Even to attend his basic day to day activity, because of the accident and disability sustained, his mobility has been affected. Resultantly affecting his ability to generate income. Moreover, looking at his age of 62 years, there were less chances of reunion of bones contributing to overall functional disability. The claimant was unable to lead a full life and enjoy the amenities which he would have enjoyed but for the disability incurred due to the accident. On overall appreciation of the evidence, we are of the view that the permanent functional disability of the body is assessed as 45%, considering the fact that both the legs of the original claimant has been affected because of the accident. On overall appreciation of the evidence, we are of the view that the permanent functional disability of the body is assessed as 45%, considering the fact that both the legs of the original claimant has been affected because of the accident. Taking into consideration the age of the deceased of 62 years at the time of accident, the loss of future earning capacity is determined accordingly. 17. Loss of future Income: 17.1 This brings us to the issue of addition of future prospects in view of the ratio laid down by the Hon’ble Supreme Court in the case of Pranay Sethi (supra). As rightly pointed out by learned advocate for the respondent – Insurance Company that the Constitutional Bench has not opined with regard to entitlement of addition of future prospects in case of deceased / injured claimant of an accident beyond the age of 60 years. In the facts of the case on hand, admittedly the claimant has expired pending this appeal in the year 2018. In light of the ratio laid down by the Hon’ble Supreme Court in absence of any direction being issued we restrict ourselves from examining entitlement of the addition of future prospects beyond the age of 60 years. 17.2 Having held so, the loss incurred by the injured claimant under the head of future loss of income is determined as Rs.10,575 x 45%=Rs.4,758.5 per month multiplied by 12(months) = Rs.57,105/- p.a. and applying multiplier of 7 = Rs.3,99,735 /- as future loss of income. 18. Loss of Actual Income : 18.1 The actual loss of income ought to have been considered for two years in light of the extensive medical case papers placed on record. It clearly transpires that the injured claimant had undergone prolonged medical treatment. Thus, the actual loss of income is determined as Rs.10,575/ (per month) x 12 x 2 = Rs.2,53,800/-. 19. Medical and medical treatment expenses : 19.1 There is no challenge so far as the compensation determined by the Tribunal under the head of medicine and medical treatment as Rs.7,65,836/- is concerned, in absence of any argument canvassed by the learned counsel for the claimant and in absence of any challenge made by the contesting respondent – Insurance Company, we hereby affirmed the aforesaid amount of compensation towards medicine and medical treatment as awarded by the Tribunal as Rs.7,65,836/-. 20. 20. Attendant charges : Insofar as attendance charges are concerned, for the reasons recorded earlier, the same are considered for two years. Accordingly, the attendance charges are re-determined as Rs.84,200/- as against Rs.42,100/- awarded by the Tribunal. 21. Supervision expenses : There is no challenge to the amount of compensation awarded under the head of supervision expenses incurred by the claimant at Rs.80,000/- as determined by the Tribunal. 22. Transportation and Special diet : This brings us to the determination of the award made under the head of transportation and special diet. We are inclined to accept the submission made by the learned senior counsel of the appellant noticing the prolonged treatment and the expenses which must have been incurred by the injured claimant while shifting from different hospitals based at Surat and Vadodara is concerned, the same is re-determined as Rs.27,300/- as against Rs.25,000/-. 23. For the foregoing reasons, the appeal preferred by the appellant- claimant is hereby partly allowed in the aforesaid terms. Thus, the applicant is entitled to get total amount of compensation under different heads as under : Particulars Amount (Rs.) Future Loss of Income 3,99,375/- Pain, shock and suffering 50,000/- Actual loss of income 2,53,800/- Medicines and medical treatment 7,65,836/- Attendance charges 84,200/- Supervision charges 80,000/- Transportation and Special diet 27,300/- Total Compensation 16,60,871/- 24. Interest : In the case of Dharampal and Others vs. U.P. State Road Transport Corporation, (2008) 12 SCC 208 the Supreme Court has held therein that the interest to be awarded is normally dependent upon the prevailing rate of interest of Banks at the time of granting the Award. Considering the fact that on the date of passing of impugned award, the tribunal has awarded 9% interest, interest on the enhanced amount of compensation is awarded at the same rate. 25. In view of the aforesaid determination of compensation, the appellant is hereby held entitled to enhanced amount of Rs.5,44,935/- (Rs.16,60,871/- - Rs.11,15,936/-) to be realized from the respondents jointly and severally with proportionate costs, at the rate of 9% p.a. from the date of filing of claim petition till its actual realization. The respondents are hereby directed to deposit the award amount preferably within a period of 8 weeks from date of receipt of the copy of the present order with the concerned Tribunal. The respondents are hereby directed to deposit the award amount preferably within a period of 8 weeks from date of receipt of the copy of the present order with the concerned Tribunal. The Tribunal is directed to strictly adhere to the guidelines issued by the Hon’ble Supreme Court while considering disbursement of the award amount. Noticing the fact that the original claimant has expired pending this appeal and accident relates to 2004 and noticing the advance age of the wife of the deceased claimant – present appellant herein, we are inclined to release and disbursed award amount. The Tribunal is directed to release and disburse the award amount immediately upon deposit of the same subject to due verification. 26. With these observations, present appeal is partly allowed in the aforesaid terms. Registry is directed to send back the record and proceedings forthwith to the concerned court.