JUDGMENT : Satyen Vaidya, J. By way of instant appeal, the insurer has assailed the award dated 17.12.2018, passed by the learned Motor Accident Claims Tribunal-II, Solan (for short the ‘Tribunal’) in Claim Petition No. 04- NL/2/2017, whereby respondent No.1 herein (for short the ‘claimant’) has been awarded compensation of Rs. 12,84,700/- with interest at the rate of 8% per annum and the insurer has been directed to satisfy the award. 2. The claimant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short the ‘Act’) before the learned Tribunal, seeking compensation on account of injuries and permanent disablement suffered by him in an accident involving motor vehicle. 3. The claimant had alleged that on 18.8.2016, at about 9.30 AM, he was riding his motorcycle No. HP- 12B-0671 with his wife and child on the pillion. When he reached near the house of Bhagat Singh at Village Rampur-Berchha, Tehsil Nalagarh, District Solan his motorcycle was hit by a car bearing No.HP-12E-9488 being driven by Bal Krishan (for short the owner/driver) in rash and negligent manner. 4. The claimant allegedly suffered grievous injuries to both of his legs, which resulted in 35% disablement of the petitioner. The petitioner was admitted in Usha Nursing Home, Ropar, Punjab from 18.8.2016 to 26.6.2016 and during this period he was also operated upon. 5. Petitioner claimed to have spent Rs.5,00,000/- on his treatment including expenses of special diet, medicines, attendant and hiring of vehicle etc. As per the petitioner, he was a transporter having ownership of two trucks. He claimed to be earning Rs. 80,000/- per month from his avocation. Petitioner claimed total compensation of Rs. 70,00,000/- on the ground that he had suffered permanent disablement and was confined to bed even till the date of filing the claim petition i.e. 13.12.2016 and was suffering from continuous pain and suffering besides having suffered loss of future earning @ Rs. 80,000/- per month. 6. The claimant stated his age to be 48 years at the time of accident. 7. The owner-cum-driver filed his reply and denied the factum of accident. He disclosed that the vehicle No. HP-12E-9488 was insured with the insurer. It was alleged that the accident had taken place due to rash and negligent driving of claimant himself, who was unable to keep control and balance over the motorcycle. 8. 7. The owner-cum-driver filed his reply and denied the factum of accident. He disclosed that the vehicle No. HP-12E-9488 was insured with the insurer. It was alleged that the accident had taken place due to rash and negligent driving of claimant himself, who was unable to keep control and balance over the motorcycle. 8. The insurer filed the reply and alleged violation of the contract of policy by the insured. It was alleged that the owner-cum-driver was not possessing a valid driving license at the time of accident. It was also alleged that the accident had taken place on account of rash and negligent driving of the claimant. Therefore, the objection as to the non joinder of necessary parties vis a vis the insurer of the motorcycle of the claimant was also taken. The averments made in the claim petition with respect to the income, loss of future income and disability etc. were denied in generality. 9. The learned Tribunal framed the following issues:- “i) Whether on the morning of 18.8.2016, at about 9.30 a.m. at place Rampur Baircha, Police Station, Nalagarh, District Solan, the respondent N.1 was driving Nano Car bearing Registration No. HP12E-9488 rashly and negligently, which resulted in causing multiple injuries to the petitioner Surinder Singh, rider of motorcycle bearing No. HP-12B-0671, which was being driven by him and knocked down by aforesaid car, as alleged. OPP ii) Whether the petitioner is entitled for compensation? OPP iii) Whether petition of the petitioner is not maintainable in the present form? OPR iv) Whether the aforesaid car was being plied in violation of the terms and conditions of insurance policy, as alleged? OPR-2. v) Whether the petition of the petitioner is bad for non-joinder of necessary parties, as alleged? vi) Relief.” 10. Issues Nos. 1 and 2 were decided in affirmative while all other issues were answered in negative. The claim petition was allowed and the claimant has been awarded a sum of Rs. 12,84,640/- rounded of to Rs. 12,84,700/- under the following heads:- 1. Future loss of income Rs. 10,92,000/- 2. Medical expenses (as is evident from Ex. PW5/B to Ex. PW5/E Rs. 99,940/- 3. Taxi charges (as is evident from receipts Ex. PW4/A to Ex. PW4/P Rs. 32,700/- 4. Pain and sufferings Rs. 40,000/- 5. Special died and attendant charges Rs. 10,000/- 6. Future discomfort and inconvenience Rs. 10,000/- 7. Total Rs. Future loss of income Rs. 10,92,000/- 2. Medical expenses (as is evident from Ex. PW5/B to Ex. PW5/E Rs. 99,940/- 3. Taxi charges (as is evident from receipts Ex. PW4/A to Ex. PW4/P Rs. 32,700/- 4. Pain and sufferings Rs. 40,000/- 5. Special died and attendant charges Rs. 10,000/- 6. Future discomfort and inconvenience Rs. 10,000/- 7. Total Rs. 12,84,640/- which is rounded of to Rs. 12,84,700/- 11. In addition, the claimant has been held entitled to 8% interest per annum on the awarded amount from the date of filing of the petition till actual realization. 12. I have heard learned counsel for the parties and have also gone through the record carefully. 13. Learned counsel for the insurer has fairly submitted that his challenge to the impugned award is confined to the quantum of compensation awarded in favour of the claimant. According to him, the compensation awarded to the claimant is higher and excessive. He would submit that the assessment of income of the claimant at Rs. 20,000/- per month has no basis. He would further contend that the claimant had not been able to prove the loss of income on account of injuries and disablement suffered by him in the accident. According to him, the claimant was transporter having two trucks and it had not been proved on record that after the accident the petitioner was not able to generate any income from his said business. It has further been submitted that the learned Tribunal has erred in holding loss of earning capacity to the tune of 35% whereas, there was no legal evidence on record to warrant such findings. 14. On the other hand, the learned Senior Counsel for the claimant has supported the award. It has been submitted that the assessment of income of the claimant at Rs. 20,000/- per month was on a very lesser side. The disablement of the claimant was permanent in nature and he was not able to work, as he used to do prior to the accident. She further claimed that the functional disability of the claimant was much more than 35%. It has also been pointed out that while assessing the income of the claimant nothing has been allowed on account of loss of future prospects. 15. The learned Tribunal has held the disability of claimant due to injuries suffered in the accident as 35% of the whole body. It has also been pointed out that while assessing the income of the claimant nothing has been allowed on account of loss of future prospects. 15. The learned Tribunal has held the disability of claimant due to injuries suffered in the accident as 35% of the whole body. Reliance has been placed on disability certificate Ext. PW-3/A, issued by the medical board. Perusal of said document reveals that the permanent physical impairment in respect of the claimant has been assessed by the medical experts as 35%. One of the authors of certificate Ext. PW-3/A Dr. Jai Sharma has been examined as witness (PW-3) by the claimant. He has not been cross examined on the aspect of nature and extent of disability certified in Ext. PW-3/A. It being so, the finding recorded by learned Tribunal with respect to disability suffered by the claimant cannot be faulted. Though, PW-3 admitted that there was possibility of improvement in the patient with the passage of time, but the opinion being hypothetical is not sufficient to whittle down the impact of injuries on physical abilities of the claimant as assessed and certified vide disability certificate Ext. PW-3/A. 16. Learned Tribunal has then proceeded to hold the loss of working and earning capacity of the claimant to be not less than 35% and the finding to this effect has been based on the certified disability of claimant by the medical board. Reference has also been made to paragraphs 10,11 and 13 of the judgment passed by Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar & another (2011) 1 SCC 343 . 17. In Raj Kumar (supra) it has been held that the effect on earning capacity of victim having suffered permanent disablement may not in every case be exactly commensurate to the extant of disability suffered by him and it may vary from case to case depending upon attending circumstances. The following extract from above noted judgment is relevant to the context: “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 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.” 18. Though learned Tribunal while holding the loss of earning capacity of claimant as 35% has not explicitly analysed the facts of the case at the touchstone of principle laid down in Raj Kumar, yet such finding needs no interference for the reasons detailed hereafter. 19. Admittedly, the avocation of claimant is that of a transporter. It has been proved on record that the claimant owned two trucks. The copies of registration certificates of the trucks owned by claimant have been exhibited on record as Ext. P-1 and Ext. P-2. 20. The question, however, arises as to what has been loss of earning capacity and for that matter towards future income of claimant. The claimant has appeared as his own witness (PW-2). He has deposed that he used to drive one of the trucks and on account of disability suffered by him, he is unable to do so and for such matter he has to employ a driver. The learned counsel for the insurer has taken strong exception to above part of the deposition of the claimant being beyond pleadings. He referred to the averments made in the claim petition, wherein no such specific plea has been raised. The contention so raised, however, deserves to be rejected for the reason that the claimant while being cross-examined on behalf of the insurer or the insured has not been con-fronted with the contents of the claim petition vis-a-vis the statement made by him. The contention so raised, however, deserves to be rejected for the reason that the claimant while being cross-examined on behalf of the insurer or the insured has not been con-fronted with the contents of the claim petition vis-a-vis the statement made by him. In absence of such exercise, no adverse inference can be drawn against the claimant, as he did not get any chance to explain the omission, if any. It cannot be ignored that for drafting of legal pleadings one normally relies upon the experts or professional engaged for the purpose. How and in what manner the instructions are perceived depends upon various attending circumstances. 21. Thus, even if it is assumed that the claimant used to drive one of trucks himself before suffering disability, the onus still was upon him to establish loss of earning capacity or loss of future earnings, if any, due to disability suffered by him and for such purpose he owed obligation to prove that he was not able to drive the truck temporarily or permanently. Noticeably, the claimant has failed to prove that he has lost the physical capacity completely to drive the vehicle. The claimant has examined two medical experts i.e. PW-3 Dr. Jai Ram and PW-5 Dr. Sat Pal but none of them have deposed that the claimant would not be able to drive the truck on account of disablement suffered by him. Even the claimant has not been very categoric in stating that he will not be able to drive the truck in future. Nonetheless, the nature and extent of injuries and consequent disablement suffered by the claimant cannot be ignored. PW-5 Dr. Sat Pal has detailed the nature of injuries suffered by the claimant and the treatment received by him. According to said witness, the claimant had suffered fractures on both thigh bones besides other multiple soft tissue injuries on the body. According to him interlocking nailing was done on both thigh bones through surgical intervention. This part of the testimony of PW-5 has not been shattered. Therefore, the claimant cannot be said to hold the same physical strength and capacity as he held before the accident. The assessment of his physical disability of 35% towards whole body can reasonably be taken to be an impediment with the claimant in performing his routine jobs to the same extent. Therefore, the claimant cannot be said to hold the same physical strength and capacity as he held before the accident. The assessment of his physical disability of 35% towards whole body can reasonably be taken to be an impediment with the claimant in performing his routine jobs to the same extent. As a corollary his physical capacity to drive the truck can also be taken to be reduced by 35%. 22. The next question arises as to entitlement of claimant for compensation on account of loss of earnings. Needless to say, the compensation has to be just, fair and reasonable. The claimant cannot exploit the situation to claim a bounty or windfall. At this stage it will be relevant to take note of following observations made by Hon’ble Supreme Court in State of Haryana & another vs. Jasbir Kaur & others, (2003) 7 SCC 484 “ 7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense “damages” which in turn appears to it to be “just and reasonable”. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be “just” and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be “just” compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of “just” compensation which is the pivotal consideration. Though by use of the expression “which appears to it to be just” a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression “just” denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC [ (1999) 1 SCC 90 : 1999 SCC (Cri) 197 : AIR 1998 SC 3191 ] .) 23. Though the claimant had claimed the earning of Rs. 80,000/- per month from his transport business, but he has not placed on record any documentary evidence like income tax returns, if any, to prove his income from the said business or any other source. Thus, except for bald assertions of claimant with respect to his income there was no tangible material before the learned Tribunal to arrive at definitive conclusion. In such circumstances, the learned Tribunal had no option but to indulge in guesswork, which is not impermissible, if based on realistic parameters. The learned Tribunal has assessed the monthly income of claimant at Rs. 20,000/-. What has weighed with learned Tribunal is the ownership of claimant over two trucks. On such basis, it has been assumed that the income of claimant with operation of two trucks would not be less than Rs. 20,000/-. The findings to this effect also need no interference because the assessment made by the learned Tribunal with respect to the monthly income of the claimant, in my considered view, cannot be said to be unreasonable or unjustified. In 2016, even the wages payable to a skilled worker under the Minimum Wages Act were approximately Rs. 6000/- per month. Hence, it can be reasonably assumed that for operation of the trucks, the claimant would have employed drivers by paying them at least minimum wages. In case, the employee of claimant would earn Rs. 6000/- per month, the assessment of income of Rs. 10,000/- from each of the truck in respect of claimant appears to be quite reasonable. Hence, it can be reasonably assumed that for operation of the trucks, the claimant would have employed drivers by paying them at least minimum wages. In case, the employee of claimant would earn Rs. 6000/- per month, the assessment of income of Rs. 10,000/- from each of the truck in respect of claimant appears to be quite reasonable. 24. However, in my considered view, the further approach adopted by learned Tribunal thereafter is not correct. The monthly loss of income has been taken as Rs. 7000/- i.e. 35% of Rs. 20,000/-. Resultantly, annual loss of income has been assessed as Rs. 84,000/-. By applying the multiplier of 13, total loss of future earning has been assessed as Rs. 10,92,000/-. As discussed above, the only evidence that can be said to be available on record favouring the claimant is his statement to the effect that prior to the accident he was driving one of the trucks and after the accident he has employed a driver for said purpose. That does not mean that claimant was divested of entire income hitherto earned by him by plying both the trucks. Since, as per claimant also the income from plying of one of the trucks only was affected, the loss could not be assessed on the basis of total earning from both the trucks. The claimant has nowhere stated that the plying of other truck or the income generated therefrom was affected in any manner. Thus, it can be safely held that the sufferance of claimant in earning was only from one truck as statedly he had to employ a driver for driving the said truck. 25. The statement of PW-5 Dr. Sat Pal was recorded after about 18 months after the accident and as per this witness the claimant was still under treatment till that juncture. The claimant himself had also deposed about his pain and suffering while appearing as his own witness, therefore, it will not be unreasonable to infer that the claimant would not have been able to drive the truck at least for a considerable period. In this view of the matter and keeping in view the nature of injuries suffered by him the version of the claimant that he had employed a driver after the accident cannot be disbelieved altogether. 26. In this view of the matter and keeping in view the nature of injuries suffered by him the version of the claimant that he had employed a driver after the accident cannot be disbelieved altogether. 26. Thus, by reasonable approximation it can be inferred that the claimant had not been able to drive the truck himself for a period of 18 months and had to employ a driver for plying the same. Again, there is no evidence on record to prove the wages paid by claimant to the driver and for such reason this court once again will have to indulge in some guesswork. As noted above, the wages of skilled workmen in 2016 fixed under the Minimum Wages Act were not less than Rs. 6000/- per month. It cannot be ignored that the wages fixed under the ibid Act are for specified limited hours, whereas the driver of a truck would normally work for long hours including nights also and for such reason his wages can be reasonably assumed to be Rs. 8000/- per month and hence, the claimant can be compensated to the tune of Rs.1,44,000/-(Rs.8000 X 18) on this count. 27. With respect to the future loss of income suffered by the claimant it can be held that though the claimant has not been fully disabled to drive the truck yet with the nature of injuries he has suffered, his physical strength will definitely be lessened and can be reasonably taken to be equivalent to the physical disablement assessed by the medical experts. Notice can be taken of the fact that driving of truck will require sufficient physical strength in legs. Assuming that the appellant would be driving the second truck himself, by the disability of 35% he has suffered, the value of monthly loss of income from one truck can be assessed at 35% of Rs.8,000/- i.e. Rs.2,800/-. The annual loss will be Rs.2800 x 12= Rs.33,600/- and by application of multiplier of 13, the total loss of future income can be assessed at Rs.4,36,800/-. 28. Learned Tribunal has not considered any amount payable to claimant on account of loss of future prospects. In National Insurance Co. Ltd Vs Pranay Sethi (2017) 16 SCC 680 it has been held that even self-employed person would be entitled to incremental increase of income. 28. Learned Tribunal has not considered any amount payable to claimant on account of loss of future prospects. In National Insurance Co. Ltd Vs Pranay Sethi (2017) 16 SCC 680 it has been held that even self-employed person would be entitled to incremental increase of income. In Pappu Deo Ya dav Vs Naresh Kumar & others, AIR 2020(SC) 4424 , the above principle laid in Pranay Sethi has been held applicable to the victims having suffered permanent disablement as result of motor vehicle accident. Hence, the claimant shall be entitled to enhancement of 25% on account of loss of future prospects and such relief is admissible to the claimant even in absence of any appeal filed by him in light of following exposition made by Hon’ble Supreme Court in the matter of Rajana Prakash & others vs. Divisional Manager & another, (2011) 14 SCC 639 “6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections. 7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.” 29. Thus, the total loss under the head of loss of future income can be assessed at Rs.4,36,800/- + 1,09,200 = Rs. 5,46,000/-. 30. This Court also finds that the award of Rs.40,000/- for pain and suffering is not reasonable, rather keeping in view the fact that the claimant has to spend rest of his life with permanent disablement to the extent of 35% and the age of claimant was only 48 years at the time of accident, a sum of Rs. 1,00,000/- shall be just and reasonable to compensate the claimant under this head. 31. Thus, the claimant is held entitled to compen-sation as under: 1. Loss of income for 18 months after accident Rs. 1,44,000/- 1. Future loss of income Rs. 5,46,000/- 2. Medical expenses (as is evident from Ex. PW5/B to Ex. PW5/E Rs. 99,940/- 3. Taxi charges (as is evident from receipts Ex. PW4/A to Ex. PW4/P Rs. 32,700/- 4. Pain and sufferings Rs. 1,00,000/- 5. Loss of income for 18 months after accident Rs. 1,44,000/- 1. Future loss of income Rs. 5,46,000/- 2. Medical expenses (as is evident from Ex. PW5/B to Ex. PW5/E Rs. 99,940/- 3. Taxi charges (as is evident from receipts Ex. PW4/A to Ex. PW4/P Rs. 32,700/- 4. Pain and sufferings Rs. 1,00,000/- 5. Special died and attendant charges Rs. 10,000/- 6. Future discomfort and inconvenience Rs. 10,000/- 7. Total Rs. 9,42,640/- 32. The claimant shall also be entitled to interest @ 8% per annum on the award amount from the date of filing of petition till actual realization of the amount as awarded by the learned Tribunal. 33. In light of above discussion, the appeal is partly allowed. The impugned award dated 17.12.2018, passed by Motor Accident Claims Tribunal-II, Solan, District Solan, shall stand modified to above extent. 34. Appeal is accordingly disposed of along with pending application(s), if any.