JUDGMENT : 1. The appeal has been raised by the Insurance Company challenging the judgment dated 17.04.2014 in MACP No.151 of 2012 decided by the Motor Accident Claims Tribunal (Auxi.) Narmada at Rajpipla. 2. The Insurance Company has raised the grounds inter alia to challenge the impugned judgment stating that the issue of contributory negligence has not been considered, though, it was pleaded that the claimant himself was driving his motorcycle in rash and negligent manner and the claimant was plying the motorcycle carrying goods in excessive speed, talking on the mobile phone, and the accident had occurred in the middle of State Highway. The oral evidence was recorded of the driver of the Tanker, who has given the evidence that the claimant was plying the motorcycle in excessive speed on the middle of the road talking mobile phone and that the Tribunal failed to consider so. Another ground of challenge is that the Tribunal was required to assess the permanent partial disability for the body as a whole as 20%, and fell in error assessing it as 40%. The amount under the head of special diet, attendance and transportation is on higher side, and further no amount ought to have been granted under the head of loss of marriage prospect. 3. Mr. Vibhuti Nanavati, learned advocate for the Insurance Company submitted that the evidence of the claimant does not actually prove that he has lost any income because of the accident, and therefore, stated that the amount under the head of future loss of income ought not to have been granted, and further the amount under special diet, attendance and transportation is not in accordance to evidence on record. 3.1 Advocate Mr. Nanavati submitted that Rs.1,00,000/- granted under the head of loss of prospect of marriage, is on erroneous footing, since no such evidence was raised. Placing emphasis on the negligence aspect, Mr. Nanavati stated that the evidence on record of the witness driver was required to be considered, where he, at Exh.30 had given the evidence that it was the claimant who was rash and negligent in his driving. 4. Countering the argument, Advocate Mr. D.N. Pandya for the respondent no.2 submitted that the learned Tribunal after having dealt with the evidence on record had examined the issue and on appreciation of evidence has considered sole negligence of opponent no.1. 4.1 Advocate Mr. 4. Countering the argument, Advocate Mr. D.N. Pandya for the respondent no.2 submitted that the learned Tribunal after having dealt with the evidence on record had examined the issue and on appreciation of evidence has considered sole negligence of opponent no.1. 4.1 Advocate Mr. Pandya stated that the applicant was on contractual work and in his evidence, he has deposed that the contract was cancelled owing to his inability, and, thus, he was in complete loss of income. Mr. Pandya stated that the evidence on record proves that the functional disability should have been considered as 50%, rather the learned Tribunal has erred in assessing only 40% as functional disability, and, further stated that detail documents are produced on record, and even Doctor Rajendra Lalitchandra Rana was examined at Exh.21 to prove the injuries, which were serious in nature, and father of the injured had given his deposition at Exh.23 to prove the hospitalization and operation, and, further the fact of the claimant, attained by family members as well as one more attendant to take care the claimant. 5. The accident, as was pleaded before the Tribunal suggests that on 21.05.2012, the claimant was going towards his job at C.H.C. hospital, Dabhoi on his motorcycle bearing Registration No.GJ-B-5381, and was passing the village Dajipura Bus Stand, at that time, one Eicher Tanker bearing Registration No.GJ-6-ZZ- 3750, is stated to have come in rash and negligent manner and on the wrong side dashed the motorcycle. It was alleged that driver of the Eicher Tanker was in full speed and had come in rash and negligent manner on the wrong side. The claimant got injuries on loin, pelvis, throat, right tibia-fibula and other parts of the body. He took primary treatment at Pramukh Swami Hospital, Dabhoi, and for further treatment, he was admitted at Ashirvad Hospital, Vadodara, as indoor patient from 25.01.2021 to 30.06.2012. He had undergone different surgery and various tests were performed during the treatment. 5.1 The main ground, which has been raised by the Insurance Company inter alia, is to the effect that the claimant himself was negligent in his driving and that has caused the accident. 6. The learned Tribunal has noted that the injured was the eye witness to the incident and nothing adverse has been found in the cross- examination. 5.1 The main ground, which has been raised by the Insurance Company inter alia, is to the effect that the claimant himself was negligent in his driving and that has caused the accident. 6. The learned Tribunal has noted that the injured was the eye witness to the incident and nothing adverse has been found in the cross- examination. The opponent no.3 – insurance company had prayed for witness summons for opponent no.1, who was the driver of the Eicher Tanker, who was examined at Exh.30, who stated before the Tribunal that motorcyclist was in full speed and was talking on mobile and, therefore, he lost control over the motorcycle and dashed his Eicher Tanker; while at the time of accident, he was at moderate speed and according to driver of the Eicher Tanker, the accident had occurred because of sole negligence of the claimant himself. 6.1 In the cross-examination, the witness stated that he had not given the complaint. His statement was recorded by the police and the charge-sheet was filed against him; the panchnama was also drawn. As per the evidence, the driver had ran away from the place of incident. The road is about 40 Feet wide. No damage is shown to the vehicle in the panchnama. 6.2 The learned Tribunal has also observed that the complaint, Exh.34, given by one Kunalkumar Kiritbhai Patel, who is said to be a friend of the claimant. The learned Judge has observed that the opponents have not challenged the facts of the complaint, and there was no reason to disbelieve the facts narrated therein. While appreciating the issue, with regard to the rash and negligent driving of the driver of the involved vehicle, the Tribunal has observed that the driver of each vehicle have to drive in a controlled speed so that it could be stopped immediately and each have to take care of the people moving on the road. The panchnama of the place of incident shows that it was 22 Feet wide on east and west side. Blood stain, scattered on the road, of claimants were found on the wide lane of the western side of the tanker. The learned Tribunal has observed that after the accident, opponent no.1 could not control his Eicher Tanker, which means that he could not control his vehicle after the accident. Blood stain, scattered on the road, of claimants were found on the wide lane of the western side of the tanker. The learned Tribunal has observed that after the accident, opponent no.1 could not control his Eicher Tanker, which means that he could not control his vehicle after the accident. The motorcycle was found damage, while no damage was shown to the tanker in the panchnama, which the witness had also admitted in the cross- examination. The witness in his chief-examination had stated that the claimant was talking on the mobile, and, therefore he lost control. While in the cross-examination has admitted that he has not filed any complaint. He stated in his statement that he had informed the police that the claimant was talking on the mobile. 6.3 On certain admitted facts, this Court is called upon to consider the negligence of the claimant himself; whether the claimants talking on the mobile during the course of driving the motorcycle, could be considered as a contributory factor for the accident, is a matter of fact to be examined in view of the deposition, which has come on record. The insurance company had tried to defend the case by examining the driver himself, who had been deleted from the cause title as opponent no.1. The said witness has not given any complaint, rather as per the facts of the case, he had fled away from the place of incident. The claimant might have been talking on the phone, but the evidence shows that he was on his correct side of the road, while the accident had occurred on a side, which is opposite to that of the tanker. The evidence shows that Eicher Tanker driver had travelled in the western side of the road, which was as observed by the Tribunal, completely wrong side of the tanker. The factum of talking on mobile or carrying any excessive goods on the motorcycle while going at the place of his job, has not directly contributed to the accident. Hence, observation of the Tribunal finding sole negligence of the Eicher Tanker driver is in consonance with the evidence on record. 6.4 Both the witnesses’ i.e. claimant as well as Eicher Tanker driver, evidence was recorded, and on appreciation of the oral deposition along with complaint and the panchnama, the evidence of the claimant inspires confidence. Hence, observation of the Tribunal finding sole negligence of the Eicher Tanker driver is in consonance with the evidence on record. 6.4 Both the witnesses’ i.e. claimant as well as Eicher Tanker driver, evidence was recorded, and on appreciation of the oral deposition along with complaint and the panchnama, the evidence of the claimant inspires confidence. The observation of sole negligence of the Eicher Tanker driver is on sound appreciation of evidence and does not call for any interference of this Court. This Court also finds that Eicher Tanker driver was solely negligent for the accident. 7. The another ground, which has been raised is about the functional disability of the claimant. In the case of Raj Kumar And Another Vs. Ajay Kumar And Another, reported in 2011 ACJ,1; equivalent to: (2011) 1 SCC 343 , the Apex Court has considered the concept of functional disability for the assessment of future loss of income due to permanent disability, which are as under: “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. 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. 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. 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.” 8. Here, the doctor in his deposition has stated about the injuries suffered by the claimant: (1) CLW around 3.0 x 1.0 c.m. over middle of scalp, around 6.0 x 1.0 cm. Over lateral aspect of neck. (2) Abrasion with confusion over left side of chest. (3) CLW over right thigh and leg. (4) Compound com minuted fracture of upper third of right Tabula. (5) Hip fracture of right literal fermoral cowled. (6) Compound com minuted fracture of right Tibia fibula at m/3-L/3. 8.1 Injured-claimant was firstly treated in Pramuk Swami Hospital at Dabhoi and thereafter he was shifted at Ashirwad Hospital, Vadodara, where he remained as an indoor patient from 21.05.2012 to 30.06.2012. The injury certificate and treatment papers were produced at Exh.22 and 36. Doctor Rajendra L.Rana, M.S. (Ortho.) was examined, who had deposed about the compound com minuted and segment fracture of Tibia Fibula of the right leg; pelvis fracture; the crush wound of the left thigh and leg; the injury on the left neck and lateral femoral condyle fracture in right knee. The evidence also suggests that the right leg was shorten for about one inch, and because of the injury on the knee, there was constant pain. The knee could not be bent and had also disfigurement. He was not in position to sit cross legged. The movement on the left shoulder got restricted, and, thus the Doctor had opined of 40% right side lower limb disability, while 10% of upper limb of the left leg. The evidence of the Doctor has practically remained unchallenged. He admitted, that the percentage of injuries could be considered as half. He was not in position to sit cross legged. The movement on the left shoulder got restricted, and, thus the Doctor had opined of 40% right side lower limb disability, while 10% of upper limb of the left leg. The evidence of the Doctor has practically remained unchallenged. He admitted, that the percentage of injuries could be considered as half. 8.2 The learned Tribunal has referred to the evidence on record, and has assessed the evidence of Doctor Rana to consider 40% disability, as the Doctor has deposed that he would need the support of the stick to walk and there would not be any chances of reduction in disability. The Doctor has given the deposition of loss of prospects of marriage and loss of expectation of life. Doctor Anil Shah, Ashirvad Hospital Certificate was considered by the Tribunal to observe multiple fracture in right lower limb and fracture on the pelvis, and the treatment, which has continued from 21.05.2012, the need would be for major surgeries and reconstruction of patellon tendon and Dorse Fitxous of ankle in same limb, and the approximate expenses for further treatment was stated to be Rs.2 lacs. 9. During the course of argument, learned advocate Mr. Pandya had shown discharge summary of Ashirvad Hospital, subsequent to the deposition of the claimant, which shows that he had undergone such treatment, as certified by the Doctor. 9.1 This Court does not want to deal with the facts of the treatment undergone post deposition in trial, but to justify the amount of Rs.1 lac under the head of future treatment, Mr. Pandya has shown those documents for perusal of the Court to state that the amount granted is just and reasonable. 10. In view of the fact that the claimant, during the deposition, stated that he was serving in C.H.C. Hospital, Dabhoi under contract and was earning Rs.6,000/- per month. On the date of accident, he was going at his work place; however, he could not produce any evidence to prove his income. While the evidence was recorded, he had stated that because of the accident and the injury suffered, the contract got cancelled, and he was not having any source of income. On the date of accident, he was going at his work place; however, he could not produce any evidence to prove his income. While the evidence was recorded, he had stated that because of the accident and the injury suffered, the contract got cancelled, and he was not having any source of income. The learned Tribunal, however, observed that no documentary evidence has been produced to prove the earning of Rs.6,000/-, and as none has been examined from C.H.C. Hospital, Dabhoi, the learned Tribunal has assessed the income of Rs.4,900/- per month as minimum wages, this Court does not want to unsettle the observation of the Tribunal couple with the fact that the claimant had deposed that because of the accident, he had lost the job, hence, according to the deposition, he would have suffered 100% loss in income; however, considering the fact that 40% functional disability has been assessed, this Court considers that the applicant would be able to do some other work with that his reduced physical capability. Hence, the assessment of 40%, considering the age of 25 years with multiplier of 18, the amount granted under the head of future loss of income as Rs.4,21,360/- is appropriate in accordance to the judgment of Raj Kumar And Another Vs. Ajay Kumar And Another (supra) and Sarla Verma and Others vs. Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 . 11. Now, the claimant had also examined his father to prove the need of diet and attendance and extra attendance to look after his day-to-day need during the time of hospitalization, and also thereafter during his course of after treatment, the learned Tribunal has granted amount of Rs.1 lac under food, attendance and transportation, which this Court also considers to be just and proper. 12. The claimant could prove the expenditure for his treatment of Rs.8,10,984/-. The amount under the head of pain, shock and suffering would of course not abbreviate the sufferings, but the amount would commensurate the factum of pain undergone and the sufferings, and even the fact of future pain and sufferings because of injury suffered and the operation undergone by him. The factum of need for future medical treatment has also been proved by the evidence of the Doctor, and the claimant himself has stated about need of future treatment, and accordingly Rs.1,00,000/- is granted. The factum of need for future medical treatment has also been proved by the evidence of the Doctor, and the claimant himself has stated about need of future treatment, and accordingly Rs.1,00,000/- is granted. 12.1 The only aspect, which requires consideration of this Court is about Rs.1,00,000/- granted under the head of loss of prospects of marriage. 12.2 In Raj Kumar And Another Vs. Ajay Kumar And Another (supra), the Hon’ble Apex Court in paragraph no.15, had dealt with the aspect of the amount to be granted under separate head of loss of amenities or loss of expectation of life. Paragraph no.15 is reproduced here under: “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.” 12.3 The Hon’ble Apex Court has noted that if the loss of future earning capacity is 100% or even more than 50%, then there would not be any need to separately award the compensation under the loss of amenities or loss of expectation of life, as it may disappear, and therefore it was suggested that only a token or nominal amount be granted under the head of loss of amenities or expectation of life, since there may be duplication in the award of compensation. 13. This Court on considering the observation and having observed the fact that the Tribunal has considered 40% functional disability, which is less than 50%, a nominal amount would not suffice, as the physical disability in the present matter has affected the legs and has also laid to disfigurement. The injuries as has been noted and proved during the course of the trial, would suggests that the applicant would have to live a life, which would affect his self confidence. The injuries as has been noted and proved during the course of the trial, would suggests that the applicant would have to live a life, which would affect his self confidence. His physical disability would also make him suffer his social status and would affect his personal marital life, and, therefore he is required to be compensated for his inability to enjoy the normal amenities, which he would have enjoyed. Thus, the amount, which has been granted as Rs.1,00,000/- under the head of loss of prospects of marriage be considered as the amount under the head of loss of amenities of life and enjoyment of life. 14. The learned advocate has referred to the judgment of R.D. Hattangadi Vs. M/s. Pest Control (India) Opvt. Ltd. and Ors., reported in AIR 1995 Supreme Court 755, specifically paragraph no.18 of the judgment, to state that the amount under future medical expense is not a crystallized amount on the date of the judgment; no interest should be granted on the same. 14.1 Following the judgment of R.D. Hattangadi (supra), in this case, it is directed that no interest would be paid on the amount of Rs.1,00,000/-, which has been granted for future treatment; however, it is made clear that the same would not be made a precedent in any of the matter and every matter would be decided on its own facts and circumstances. 15. Thus, there is no requirement of any interference in the judgment dated 17.04.2014 in MACP No.151 of 2012 decided by the Motor Accident Claims Tribunal (Auxi.) Narmada at Rajpipla for the compensation of Rs.17,01,944/- at the rate of 9%, only with modification that the claimant would not be entitled for the interest on the future treatment amount. 16. In view of the above, the appeal stands disposed of. Record and Proceeding be sent back forthwith, if received.