THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Principal Seat at Guwahati MAC Appeal No. 95/2022. Oriental Insurance Company Limited, Office at Oriental House, A-25/27, Asaf Ali Road, New Delhi – 110002, Regional office at Guwahati – 7, Represented by the Regional Manager. …… Appellant. -Versus- 1. Smti. Soma Kundu @ Mom Kundu, D/o Sri Amiyo Kundu, Resident of Cooch Bihar (Old Post Office Para), Ward No. 7, P.O. & P.S. – Cooch Bihar, Dist. – Cooch Bihar, West Bengal, PIN - 700001. 2. Md. Jiyarul Haque, S/o Md. Kazimuddin, Vill.& P.O.–Ghugubari, P.S. - Sorbhog, Dist. – Barpeta, Assam, PIN - 781315. (Owner of Vehicle No. AS-01-AA-8427) GAHC010003922017 2026:GAU-AS:8951 3. Md. Sazid Khan, S/o Gadu Mia, Vill. –Holdia Pathar, P.S. – Sarbhog, Dist. – Barpeta, Assam, PIN - 781315. (Driver of Vehicle No. AS-01-AA-8427) 4. Bajaj Allianz General Insurance Company Limited, Represented by its Branch Manager, Guwahati Branch, Guwahati, Opposite Bora Service, G.S. Road, Ulubari, Guwahati, Assam, 781006. (Insurer of Truck No. WB-23-A-0885) …… Respondents. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Advocate for the appellant :- Mr. S. Dutta. Advocate for the respondent No. 1 :- Mr. M. Khan. Advocate for the respondent No. 4 :- Mr. R. Goswami. Date of hearing :- 09.06.2026. Date of which judgment is reserved :- 09.06.2026. Date of pronouncement of judgment :- 16.06.2026. Whether the pronouncement if of the :- N/A operative part of the judgment? Whether the full judgment has been :- Yes pronounced? JUDGEMENT & ORDER (CAV) Heard Mr. S. Dutta, learned counsel for the appellant; Mr. M. Khan, learned counsel for the respondent No. 1; and Mr. R. Goswami, learned counsel for the respondent No. 4. 2. In this appeal, under Section 173 of the MV Act, the appellant has put to challenge the correctness or otherwise of the judgment and award dated 30.09.2016, passed by the learned Member, MACT, Bongaigaon (Tribunal hereinafter), in MAC Case No. 73/2010. 3. It is to be noted here that vide impugned judgment and award dated 30.09.2016, learned Tribunal had directed the appellant herein to pay a sum of Rs. 29,58,100/- along with interest @ 6% per annum from the date of filing of the claim petition, i.e. 21.05.2010, till its realization. Background Facts:- 4. The background facts, leading to filing of the present appeal, are adumbrated herein below:- “On 21.04.2008, at about 04:30 am, while the claimant, namely Smt. Soma Kundu @ Mom Kundu, was proceeding towards Lengtisinga from Guwahati, in a vehicle bearing registration No. AS-01-AA-8427 (Mahindra Savari), at Nayagaon, on NH No. 31, suddenly, due to rash and negligent driving, on the part of the driver, vehicle dashed against a truck, bearing registration No. WB-23-B-0885, from behind, which was parked on the road of Nayagaon, near Shiv Mandir and as a result, the claimant sustained injuries on her head, hands, legs, chest and other parts of the body. Page 4 of 54 After the accident, the claimant was treated at Lower Assam Hospital, Bongaigaon and from there she was shifted to GNRC Hospital, Guwahati and thereafter, to Christian Medical College, Vellore. During the course of her treatment, she spent a sum of Rs. 15,00,000/-. In connection with the said accident, a case, being Abhayapuri P.S. Case No. 108/2008, was registered under Section 279/337/338/304(A)/427 of the IPC. Thereafter, the claimant preferred a claim petition before the learned Tribunal, being MAC Case No. 73/2010 and upon which, the learned Tribunal had issued notice to the opposite parties/respondents herein. Then, the opposite party No. 1/appellant herein entered appearance and contested the claim petition by filing written statement, wherein a stand had been taken that there was no cause of action and no rash and negligent driving on the part of the driver of the Mahindra Savari vehicle and that there was collusion between the claimant and the insured person and that the claim is highly excessive. Subsequently, one additional written statement was filed by the appellant herein, wherein a stand had been taken that the Policy, bearing No. 321202/2008/1122, was not issued in the name of the opposite party/respondent No. 2 herein and that the aforesaid policy was issued in the name of one Mr. Pradip Baruah of Patharighat, Sipajhar, Darrang, Assam, in respect of his vehicle, bearing registration No. AS-01-AF-0099, which is a Mahindra Savari. The opposite party/respondent No. 2 herein, owner of the vehicle, bearing registration No. AS-01-AA-8427, also entered appearance and filed written statement, wherein a stand had been taken that on 21.04.2008, at about 04:30 am, his vehicle faced with an untoward incident at Nayagaon, on NH 31, near Shiv Mandir while carrying passengers, which is purely an accident and did not took place due to rash and negligent driving of the driver of his vehicle and that the vehicle was under the insurance coverage of Oriental Insurance Company Limited, vide Policy No. 321202/2008/1122. The opposite party/respondent No. 4 herein, the insurer of the vehicle No. WB-23-B-0885, also entered appearance and filed written statement denying the statement and averment made in the claim petition and it had taken a stand that there was no rash and negligent driving on the part of the driver of the vehicle No. WB-23-B-0885, rather there was negligence on the part of the driver of the Mahindra Savari, bearing registration No. AS-01-AA-8427 and as such, Bajaj Allianz General Insurance Company Limited, being respondent No. 4, is not liable to pay the compensation to the claimant and besides, the amount being claimed by the claimant is excessively high. Page 6 of 54 Notably, the driver of the Vehicle No. AS-01-AA-8427, opposite party/respondent No. 3 herein, did not turn up, for which the case was proceed ex-parte against him. Upon the pleadings of the parties, the learned Tribunal had framed following issues:- (i) Whether vehicle No. AS-01-AA-8427 & WB- 23-B-0885 were involved in the accident, if so, whether the accident took place due to rash and negligent driving of the drivers of the said vehicles? (ii) Whether the claimant Smt. Soma Kundu sustained bodily injuries in motor vehicle accident due to hit by or by travelling in the vehicle No. AS-01-AA- 8427 & WB-23-B-0885? (iii) Whether the claimant is entitled to get compensation, if so, to what extent and by whom it is payable? The claimant had filed her evidence on affidavit before the learned Tribunal. But, her cross-examination could not be done as she was not in a position to face the cross- examination, which is apparent from the order dated 09.04.2016. The claimant side, during trial, had examined four other witnesses and exhibited several documents. But, the opposite parties have not adduced any evidence. Thereafter, hearing learned counsel for both the parties and also considering the evidence, so adduced, the learned Tribunal had decided the issue Nos. (i) & (ii) in affirmative and held that the accident took place on NH 31 near Nayagaon due to rash and negligent driving on the part of the driver of the vehicle, bearing registration No. AS-01-AA-8427. Thereafter, while dealing with the issue No. (iii), the learned Tribunal had arrived at a finding that the claimant is entitled to compensation and assessed the same at Rs. 29,58,100/- and fastened the liability upon the appellant herein to pay the said amount of compensation to the claimant and also directed that the sum will carry interest @6% per annum from the date of filing of the claim petition, i.e. 21.05.2010, till its realization.” Grounds:- 5. Being aggrieved, the opposite party No. 1/appellant herein has preferred the present appeal and contended to set aside impugned judgment and award on the following grounds:- (i) The learned Tribunal erred in law as well as in facts in passing the impugned judgment and award of compensation, which has vitiated the award. (II) The learned Tribunal committed error by considering the loss of earning capacity at 90%. A person may be physically disabled by 90% but he may not lose the earning capacity by 90% and this has vitiated the award. (III) The learned Tribunal is not competent to assess precise loss of earning capacity, which is the domain of the expert and this has vitiated the award. (IV) The learned Tribunal had committed error by awarding interest on "future expenses" and "future prospect". These amounts are awarded for future contingencies and this has vitiated the award. (V) The learned Tribunal committed an error by awarding Rs. 9,44,000/- as compensation towards medical expenses, as the medical bills and cash-memos exhibited bears some other name and not of the injured person and this has vitiated the award. (VI) The learned Tribunal committed an error as nowhere in the police report, the name of the claimant was mentioned and this has vitiated the award. (VII) In the absence of the name of the claimant in the Medical Examination Report of the Assam Hospital and Research Centre, Bongaigaon, it has to be concluded that the claimant was not an occupant in the vehicle and did not sustain any injury with regard to the accident in question. (VIII) As per the police report, nowhere the name of Soma Kundu is reflected, rather the name of one Shoma Paul, daughter of Narayan Paul, is reflected. Further, the claimant submitted unnamed cash memo amounting Rs. 8,35,401/- and therefore, the learned Tribunal ought not to have awarded such amount towards medical expenditure. Submissions:- 6. Mr. Dutta, learned counsel for the appellant, submits that the impugned judgment and award, so passed by the learned Tribunal, suffers from manifest illegalities. Firstly, he submits that the learned Tribunal had assessed the loss of earning capacity at 90% based upon the physical disability, which is also 90%, but she may not suffer loss of earning capacity by 90%. 6.1. Secondly, Mr. Dutta has pointed it out that the learned Tribunal had committed an error by adding future prospect and also by awarding interest upon the future prospect and future expenses. 6.2. Thirdly, Mr. Dutta further submits that the learned Tribunal had also committed error in awarding a sum of Rs. 9,44,000/- as compensation towards medical expenses, as the medical bills and cash memos exhibited before the learned Tribunal bears the name of some other persons. 6.3. Fourthly, Mr. Dutta, referring to a decision of Hon’ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, submits that while assessing the functional disability of the deceased and loss of earning, the procedure prescribed in the aforesaid decision has not been followed. 6.4. And fifthly, Mr. Dutta submits that assessment of compensation @ Rs. 3,00,000/, under the heard of loss of pain and sufferings and mental agony is in higher side, in view of decision of Hon’ble Supreme Court in the case of R.D. Hattangadi vs. M/S. Pest Control (India) Pvt. Limited & Ors. reported in (1995) 1 SCC 551. Under such circumstances, Mr. Dutta has contended to interfere with the impugned judgment and award, so passed by the learned Tribunal and to allow this appeal. 7. The counter submission of Mr. Khan, learned counsel for the respondent No. 1, is that the learned Tribunal had held that the claimant/respondent No. 1 herein suffered 90% disability. But, the claimant/respondent No. 1 herein can move only with wheelchair and she can neither walk nor talk and this fact is apparent from the impugned judgment and award, so passed by the learned Tribunal, especially from paragraph No. 8, wherein it was observed that the claimant though filed her evidence on affidavit, but her cross- examination could not be done as she was not in a position to face the cross-examination and as such, according to Mr. Khan, the functional disability of the claimant/respondent No. 1 herein ought to have been assessed at 100%. 7.1. Mr. Khan has pointed it out that the accident took place in the year 2008 and due to the said accident, the claimant/respondent No. 1 herein got injuries over her brain and that at the relevant time, she was working in a laboratory and her monthly income was Rs. 5,000/-. But, due to the said accident, she lost her job and as such, the loss of earning capacity of the claimant ought to have been assessed at 100%. Mr. Khan further submits that the disability suffered by her is permanent, as in the year 2016 also she was not in a position to speak and stand, though the accident took place in the year 2008. 7.2. Mr. Khan also submits that the learned Tribunal had taken note of the decision of Raj Kumar (supra), so referred by Mr. Dutta, learned counsel for the appellant and that the impugned judgment and award suffers from no infirmity or illegality requiring any interference of this Court and therefore, Mr. Khan, has contended to dismiss this appeal. 7.3. Mr. Khan has also referred to a decision of Hon’ble Supreme Court in the case of Kajal vs. Jagdish Chand and Others, reported in (2020) 4 SCC 413, to contend that the learned Tribunal ought to have assessed her functional disability, corresponding to loss of earning capacity @ 100%, instead of 90%. Under such circumstances, he has contended to dismiss the appeal. Consideration and Analysis :- 8. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the memo of appeal as well as the grounds mentioned therein and also gone through the impugned judgment and award dated 30.09.2016, and also the decisions relied upon by learned counsel for both the parties. 9. The basic facts here in this case are not in dispute. On the fateful day, at about 04:30 am, the claimant was travelling in a vehicle, bearing registration No. AS-01-AA-8427, from Guwahati towards Lengtisinga and the said vehicle dashed against one stationary truck at Nayagaon, near Shiv Mandir, on NH 31, bearing registration No. WB-23-B-0885. In the said accident, the claimant had suffered serious injuries and she was admitted to Lower Assam Hospital at Bongaigaon. Thereafter, she was treated at GNRC Hospital, Guwahati and thereafter, she was treated at Christian Medical College, Vellore. It is also not in dispute that in connection with the said accident, a case, being Abhayapuri P.S. Case No. 108/2008, was registered, under Section 279/337/338/304(A)/427 of the IPC. Thereafter, the claimant had preferred a claim petition before the learned Tribunal, being MAC Case No. 73/2010 and upon hearing both the parties the learned Tribunal awarded a sum of Rs. 29.58,100/- being the compensation and fastened the liability upon the appellant herein, to pay the same. 10. Having carefully gone through the impugned judgment and award, this Court finds that the learned Member had assessed the compensation of Rs. 29,58,100/- as under:- (i) Medical expenditure : Rs. 9.44,500/- (ii) Loss of income due to disability : Rs. 12,63,600/- (iii) Loss of amenities & attendant charges: Rs. 2,00,000/- (iv) Loss of enjoyment of life & marriage prospect :- Rs. 2,00,000/- (v) Future expenses : Rs. 50,000/- (vi) Pain and sufferings and mental agony :-Rs. 3,00,000/ Total : Rs. 29.58,100/- 11. It is to be noted here that the law, regarding entitlement of compensation by the injured in a routine injury case is well settled by in catena of decisions of Hon’ble Supreme Court. Notable amongst them is the case of Raj Kumar (supra), wherein Hon’ble Supreme Court has held that the claimant is entitled to compensation under the following heads in a routine injury case:- “Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). 11.1. It is also held by Hon’ble Supreme Court in the said case as under:- “In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.” 12. In the instant case the appellant has challenged the award of the learned Tribunal under the following heads:- Head No. (i) Medical expenditure, : Rs. 9.44,500/- Head No. (ii) Loss of income due to disability : Rs. 12,63,600/- Head No. (iii) Future expenses : Rs. 50.000/- Head No. (iv) Pain and sufferings and mental agony : Rs. 3,00,000/- 13. Since the finding of the learned Tribunal has not been challenged in respect of other heads, this court will confine its discussion only respect of the aforesaid four heads. 14. In respect of the head No. (i), the learned Tribunal had dealt with the same in para No.21 of the impugned judgment as under:- “21. PW 2 in her evidence stated that after the accident the injured was treated at Lower Assam Hospital, Bongaigaon wherefrom she was shifted to GNRC Hospital, Guwahati. Ext.199 the discharge certificate of GNRC Hospital reflects that the injured was admitted in Lower Assam Hospital, Bongaigaon, on 21.04.2008 and was discharged on 27.04.2008. On careful perusal of the vouchers and bills proved by the claimant, it reveals that an amount of Rs. 9,44,243/- say Rs. 9,44,500/-was expended during treatment of the injured. As such, the claimant is entitled to this amount as medical expenses for the injury sustained by her.” 15. Thus, it appears that the learned Tribunal, before awarding the said sum had perused the vouchers and bills so exhibited and proved by the claimant, and found that an amount of Rs. 9,44,243/- (rounded off at Rs. 9,44,250/ was spent by the claimant during her treatment. 15.1. The claimant had exhibited the medical prescriptions and vouchers and certificates, including the ejahar, charge sheet, seizure list, police report, salary certificate and disability certificate as Exhibit- 1 to Exhibit-226. It also appears that the appellant herein had cross-examined the PW2 and on perusal of the same it is found that the appellant has only suggested that Exhibits- 67-74 are credit memos and Exhibits-195/196/198, are photocopies. There was not a single suggestion that the said vouchers and credit memos were not issued in the name of the victim claimant or in her relative’s name. Even before this Court also the learned counsel for the appellant has failed to point it out as to which of the vouchers bear the name of some other person not the name of the victim and her relatives. In that view of the matter, the third submission of Mr. Dutta, in this regard, left this court unimpressed. 16. In respect of the Head No. (ii), the contention of the learned counsel for the appellant is that while assessing the compensation @ Rs. 12,63,600/- under the head of (ii), the loss of income due to disability, the learned Tribunal has not followed the principle laid down in the case of Raj Kumar (supra). Page 16 of 54 17. His further submission is that the learned Tribunal had assessed the loss of earning capacity at 90% based upon the physical disability, which is also 90%, but she may not have suffered a loss of earning capacity of 90%, this Court finds that the learned Tribunal has dealt with the issue of awarding compensation under the aforesaid head No.(ii) in the last part of para No. 21 and 22 of the impugned judgment as under:- “21. …………… …………………. The claimant's mother PW 2 in her evidence stated that due to the accident, the claimant became 90% permanently disabled. Regarding disability claimant examined PW 3 Dr. Shamik Choudhury one of the member of medical board who deposed that on 29.08.13, he examined Soma Kundu and issued the disability certificate Ext. 226 and they assessed her disability as 90% which is not curable and permanent in nature. He also stated that her disability was post traumatic quadri paresis and she cannot move without wheel chair. He proved his identity card as Ext. 228. Claimant also examined PW 4 Mridul Kanti Anjoy, the employee of Social Welfare Office, Cooch Bihar who deposed that as per doctor's report the District Social Welfare Officer used to issue identity card of disabled person. He stated that medical board assessed the disability of Soma Kundu as 90%. He proved the identity card issued in favour of Soma Kundu as Ext.226. During cross, he admitted that there is no mention in Ext. 226 as to how the disability was caused to the claimant. As per evidence of PW 4 Mridul Kanti Anjoy also, the claimant has 90% disability. Ext.226 shows that the claimant cannot walk without assistance of escort. The discharge summary reflects that she sustained traumatic brain injury sequlae, bilateral equinus deformity. She cannot move without wheel chair and not yet in a position to give deposition. Considering the injury sustained by her, this court considered her disability as 90% and as such, the claimant is entitled to pecuniary damages for the loss of earning capacity to the extent of 90% due to injury sustained in the accident besides medical expenses. Now taking to the question of income, claimant stated that she was working as female attendant at "Sharma Pathology" from March, 2007 till the date of accident and she was drawing an amount Rs. 5,000/- per month as salary. Regarding income the claimant examined PW 3 Ratan Sharma, the owner of "Sharma Pathology" who deposed that Soma Kundu was working as female attendant in his Pathology from March, 2007 till 15th April, 2008. He further stated that on 15th April. 2008 she availed leave and thereafter she could not join in his laboratory as she met with an accident as a result of which she became handicapped and hence he has to discharge her from job. He stated that at the beginning he paid an amount of Rs. 5000/- per month. He proved the income certificate as Ext.5. So her monthly income is accepted as Rs. 5000/-. As per Identity Card (Ext. 226), she was 24 years old at the time of examination and as such for the age of group of 21 to 25 years, multiplier '18' would be applied. Having regard to her age, 30% of future prospect should have been added to the monthly income that could be fixed for determination of the loss of earning as she had lost her earning being permanently disabled. Therefore, with add of 30% towards future prospect her monthly income would be Rs. 6500/- (Rs. 5000 1500). Hence, total loss of income due to disability comes to Rs. 12,63,600/- (Rs. 6,500 x 12 x 18 x 90%). 22. Apart from that, in this case the claimant is reduced to such a state that she is unable to do any work, manual or otherwise, without subjecting herself to pain and suffering, agony and discomfort. In an accident, if a man is disabled for a work which he was doing before the accident, that he has no talents, skill, experience or training for anything else and he is unable to find any work, manual or clerical, such a man for all practical purposes has lost all earning capacity he possessed before and she is required to be compensated on the basis of total loss……” 18. The learned Tribunal had also discussed following case laws:- (i) Neerupam Mohan Mathur-Vs- New India Assurance Co. Ltd. (2013 ACJ 2122), wherein Hon’ble Supreme Court, in Para-8 held as under:- "In cases where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earning would depend upon the effect and impact of such permanent disability on his earning capacity. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at future loss of earnings." (ii) K. Suresh -Vs- New India Assurance Co. Ltd. of [IV(2012) ACC 395, wherein Hon'ble Supreme Court, in para No.10, has held as under:- “The adjudicating authority while determining quantum compensation has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. The approach of the tribunal or a court has to be broad based. It would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of just compensation should be inhered. (Para 10). (iii) Raj Kumar (supra)wherein Hon’ble Supreme Court had laid down certain guidelines for awarding compensation in injury cases, and in para No.5 held as under:- "The provision of the Motor Vehicle Act, 1988 ('Act' for short) makes it clear that the 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 object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. 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." 19. It is to be noted here that while dealing with the issue of loss of future earnings and assessment thereof, Hon’ble Supreme Court in the case of Raj Kumar (supra), has held as under:- Assessment of future loss of earnings due to permanent disability:- 6. 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). 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. 7. 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%. 8. 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. 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. 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). 9. 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. 10. 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. 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. 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. 11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. 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 Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage. 12. 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. 13. We may now summarize the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. Page 29 of 54 (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. 20. In the instant case, the learned Tribunal has taken note of the ratio laid down in the case of Rajkumar (supra), and also considered the evidence of Doctor and the Disability Certificate, so exhibited as Exhibit-226 and thereafter considered the avocation and income of the victim/claimant, before the accident and after the accident and then recorded a clear finding that in view of the injury sustained by her, her disability had to be assessed and accordingly assessed at 90% and as such, the claimant is entitled to pecuniary damages for the loss of earning capacity to the extent of 90% due to injuries sustained in the accident besides medical expenses. 20.1. Therefore, it cannot be said that the learned Tribunal has not followed the procedure laid down in the case of Rajkumar(supra), while assessing the loss of earning capacity of the victim claimant at 90%. But, to the considered opinion of this Court, the same ought to have been more than 90%, not less than 90%, as submitted by Mr. Dutta, learned counsel for the appellant. How and why it should not have been less than 90% is discussed herein below. 20.2. In paragraph No. 9 in the case of Rajkumar(supra), the procedure for assessing the loss of earning capacity, is laid down and the same provides that the effect of the permanent disability on the earning capacity of the injured has to be ascertained; 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. And in doing so, following has to be ascertained:- (i) whether the disablement is permanent or temporary; (ii) if there is permanent disability then it will proceed to ascertain its extent. (iii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iv) 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, (v) it has to determine whether such permanent disability has affected or will affect his earning capacity. 20.3. It appears that the victim/claimant, though had filed her evidence in affidavit, yet she could not be cross-examined as she was not in a position to give deposition. Instead her mother was examined as PW 2, who in her evidence stated that due to the accident, the claimant became 90% permanently disabled. 20.4. The claimant had examined Dr. Shamik Choudhury one of the members of medical board, as PW 3. He testified that on 29.08.13, he examined Soma Kundu and had issued the disability certificate, Ext. 226,assessing her disability at 90%. According to him the disability is not curable and permanent in nature. Further, he testified that her disability was post traumatic quadri paresis and she cannot move without wheel chair. 20.5. The claimant had examined one Mridul Kanti Anjoy, the employee of Social Welfare Office, Cooch Bihar as PW 4. He testified that as per Doctor's report the District Social Welfare Officer used to issue identity card of disabled person. He also testified that medical board had assessed the disability of Soma Kundu at 90%. He proved the identity card issued in favour of Soma Kundu as Ext.226(ii). It was elicited in cross examination that there is no mention in Ext. 226(ii) as to how the disability was caused to the claimant. Page 32 of 54 20.6. And from the evidence of P.W. 3, and also from the disability certificate Exhibit-226, it becomes established that the same is not curable and permanent in nature. This fact is also apparent from the fact that she appeared before the learned Tribunal on 09.04.2016, after about 8 years of the accident (since the accident took place on 21.04.2008) she was found to be not in a position to face the same. Mr. Khan has pointed this out at the time of hearing with reference to the order dated 09.04.2016 of the learned Tribunal. Since the disability is not curable, it has to be assessed as total permanent disability. 20.7. Further, from the discharge summery of the victim claimant, which is available on the record, it becomes apparent that she sustained traumatic brain injury sequlae, bilateral equinus deformity. The evidence of P.W.3 and also from the disability certificate-Exhibit-226, it becomes apparent that her disability was post-traumatic quadriparesis [(a condition characterized by weakness in all four limbs (both arms and both legs)]. And she cannot move without wheel chair. Thus, her disablement percentage is expressed not with reference to any specific limb, but on the functioning of her entire body involving all four limbs. 20.8. Now, let it be seen whether such permanent disability has affected or will affect her earning capacity. As held in paragraph No.10, in the case of Rajkumar(supra) for ascertainment of the effect of the permanent disability on the actual earning capacity three steps have to be carried out. The first one is ascertainment of 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. The second one is to ascertain his/her avocation, profession and nature of work before the accident, as also his age. The third one 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. 20.9. 20.9. A perusal of Ext.226 also indicates that the victim claimant cannot walk without the assistance of an escort. The discharge summary of her medical report indicates that she sustained traumatic brain injury sequlae, bilateral equinus deformity. In view of the aforesaid factual matrix and in view of the fact that she cannot move without wheel chair and was not even able to face the cross-examination, this court is of the view that her disability has rightly been assessed at 90%. Thus, the extent of her disability is 90%. 20.10. Indisputably, the victim claimant was of 24 years old at the relevant time of accident, i.e. 21.04.2008. She was working as female attendant at "Sharma Pathology" from March, 2007 till the date of accident and she was drawing an amount of Rs. 5,000/- per month as salary. In support of her said contention she had examined one Ratan Sharma, the owner of "Sharma Pathology", as PW 3. He testified that Soma Kundu was working as female attendant in his Pathology from March, 2007 till 15th April, 2008. He further testified that on 15th April, 2008 she availed of leave and thereafter she could not rejoin in his laboratory as she met with an accident as a result of which she became handicapped and hence he had to discharge her from job. According to him, he paid a sum of Rs. 5000/- per month, and he confirmed the certificate as Ext.-5, issued by him. 20.11. Further, it appears from the evidence and documents placed on record that the claimant has been reduced to such a state that she is unable to do any work, manual or otherwise, without subjecting herself to pain and suffering, agony and discomfort. The learned Tribunal has observed that in an accident, if a man is disabled for a work, which he was doing before the accident, that he has no talents, skill, experience or training for anything else and he is unable to find any work, manual or clerical, such a man for all practical purposes has lost all earning capacity he possessed before. 20.12. Thus, it becomes apparent that before the accident the victim claimant was working as female attendant at "Sharma Pathology" and her salary, per month was Rs. 5,000/-. After the accident she could not join the laboratory and as such she was discharged from her job. Further, from the record, it becomes apparent that the claimant has lost her ability to move herself without help of others due to the injury sustained in the accident. Thus, it appears that she has become totally disabled from earning any kind of livelihood and the learned Tribunal has recorded a categorical finding to that effect. The learned Tribunal had also recorded a finding that she is required to be compensated on the basis of total loss. Mr. Khan, the learned counsel for the respondent victim also rightly pointed this out during hearing and there appears to be substance in the same and the decision, so referred by him in Kajal(supra) also fortified his submission. 20.13. But, in spite of recording such a categorical finding,the learned Tribunal had assessed her loss of earning capacity at 90%, which, from all standpoints ought to have been 100%, while there is evidence to show that she lost her job which she was doing before the accident and now she is unable to move without assistance and without wheel chair, and has become totally disabled from earning any kind of livelihood. On this count, the finding of the learned Tribunal in respect of the percentage of loss of earning capacity, is liable to be interfered with. Thus, this court is unable to agree with the submission of Mr. Dutta, learned counsel for the appellant that the victim claimant may not have suffered loss of earning capacity of 90%. 20.14. The learned Tribunal, having accepted the monthly income of the victim claimant at Rs. 5000/-, and having regard to her age i.e. 24 years, at the time of examination added 30% of monthly income as future prospect. Thereafter, it had applied multiplier '18', and thereafter calculated the loss of income as under:- Monthly income = Rs. 5,000/ Addition of 30% =Rs. 6500/- (Rs. 5000 + 1500). Page 36 of 54 Loss of income due to disability comes to Rs.12,63,600/- (Rs. 6,500 x 12 x 18 x 90%). 20.15. It is a fact that in the case of Rajkuma (supra), nowhere it is provided for awarding compensation under the head of future prospect. In that view of the matter Mr. Dutta, learned counsel for the appellant is right in his submission. However, that per se does not preclude claims by persons incurring permanent disablement as a consequence of motor accidents, from seeking compensation under such heads. 20.16. While considering this issue in the case of Pappu Deo Yadav vs. Naresh Kumar and Others, Civil Appeal No. 2567 of 2020, decided on September 17, 2020, Hon’ble Supreme Court has held as under:- “6. The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions.7 7. Two questions arise for consideration: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability. On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi8 involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish9 was not binding, but rather that the subsequent decision in Anant10 to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi11 is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim’s death.” 20.17. In the case of Jagdish vs. Mohan and others, reported in(2018) 4 SCC 571, a three Judges Bench of Hon’ble Supreme Court has dealt with this issue. In the said case the victim, a carpenter, suffered permanent disablement, and his claim for compensation including for loss of future prospects was considered by a three-Judges bench (which included, incidentally, the judges who had decided Pranay Sethi). This court held that: “13. In the judgment of the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680], this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs. 2400 towards loss of future prospects. 14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing—at least in the facts of this case—can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. 15. The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90%. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400. In addition to this amount, the appellant should be granted an amount of Rs. 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs. 98,908); for extra nourishment (Rs. 25,000) and for attendant’s expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs. 25,38,308 by way of compensation. The appellant would be entitled to interest at the rate of 9% p.a. on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.” 20.18. This issue was again considered in the case of Lalan D. alias Lal and Another vs. Oriental Insurance Co. Ltd., reported in (2020) 9 SCC 805, wherein Hon’ble Supreme Court has held as under:- “12. In Parminder Singh v. New India Assurance Co. Ltd. (2019) 7 SCC 217 : (2019) 3 SCC (Civ) 536, a Bench comprising of two Judges of this Court found 50% of the income of the victim was to be assessed as loss of future prospects. Earlier, this Court broadly took the same view in Sanjay Verma v. Haryana Roadways (2014) 3 SCC 210. 13. The course mandated by this Court in Parminder Singh [Parminder Singh v. New India Assurance Co. Ltd., (2019) 7 SCC 217 : (2019) 3 SCC (Civ) 536 : (2019) 3 SCC (Cri) 50] is addition to the monthly income of the victim, 50% thereof as loss of future prospects to arrive at compensation for loss of income for the purpose of application of the multiplier. This method of computation is based on sound logic and we choose to apply the same methodology in this appeal also. The loss of earning capacity of the first appellant is 100%. On this basis, his loss of future earnings would have to be calculated treating income of the victim to be Rs 3500 per month, to which loss of future prospects @ 40% thereof is to be added, which would make it Rs 4900 per month. This is the computation method directed by the Constitution Bench in Pranay Sethi reported in (2017) 16 SCC 680, so far as self-employed persons are concerned. We direct addition of 40% as there is no material before us to prove that the victim had a permanent job. Evidence before the Tribunal was that he was a skilled labourer in a building construction project. There was no evidence that he was on their permanent roll.” 20.19. Again in the case of Satheesh E. vs. The New India Assurance Co. Ltd. CIVIL APPEAL Nos.8059-8060 OF 2022, (Arising out of SLP(C) Nos.775-776 of 2022) Hon’ble Supreme Court has held dealt with the issue and held as under:- “6. Learned Senior counsel appearing on behalf of the appellant then contended that the Tribunal and the High Court both have not granted any compensation towards future prospects though in view of the Constitution Bench judgment of this Courtin National Insurance Company Ltd. Vs. Pranay Sethi and others, reported in (2017)16 SCC 680, as subsequently explained by this Court in Lalan D. alias Lal and another vs. Oriental Insurance Company Limited, (2020) 9 SCC 805. Applying the ratio of these decisions in an injury case, the appellant is also entitled to additional compensation towards future prospects. 7. We find force in the contention of the learned Senior counsel as in view of para 59.4 of the Constitution Bench judgment in Pranay Sethi(supra), the appellant would be entitled to additional compensation towards future prospects at the rate of 25% of the monthly income in view of the fact that he was 48 years’ old at the time of accident. We order accordingly. The Motor Accidents Claims Tribunal, Kozhikode is, thus, directed to re- calculate the amount of compensation, as is admissible to the appellant in the above terms, within a period of one month from the date of receipt/production of a copy of this order.” 20.20. Thus, it is well settled that in cases of permanent disablement, incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too. And as such the learned Tribunal had not committed any illegality or irregularity in adding future prospect, while assessing the loss of income due to disability. Notably, the learned Tribunal had added 30% as future prospect. The same also cannot be said to be erroneous, as the learned Tribunal delivered the judgment on 30.09.2016 and at that point of time the decision of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethiand Others, reported in (2017) 16 SCC 680, providing addition of 40% as future prospect in respect of a deceased below 40 years and was self employed or on fixed salary, was not in existence. It was delivered on 31.10.2017, while this appeal is pending before this court. And as such the decision in Pranoy Sethi (supra) is binding upon this court as the appeal is pending, and also in view of binding nature of the same under Article 141 of the Constitution of India. As a Constitution Bench ruling declaring the law on “just compensation,” it has retrospective effect in the sense that courts (including High Courts in appeals) must apply its principles to ensure uniformity and correctness, even for accidents or Tribunal awards before 31.10.2017. Page 43 of 54 20.21. Notably, in the case of Pranoy Sethi (supra), a Constitutional Bench of the Hon’ble Supreme Court, in para No. 59.3 – 59.8, has held as under. 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. 59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore. 59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier. 59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. 20.22. Thus, from paragraph No.59.4., of the decision in Pranoy Sethi (supra), and also in Jagdish (supra), and in Pappu Deo Yadav (supra) and also in Satheesh E.(supra), it becomes well settled that motor accident cases involving serious injuries resulting in permanent disablement and when the injured was self-employed or on a fixed salary, an addition of 40% of the established income should be warranted where the injured was below the age of 40 years. In the instant case, the injured was 24 years old at the time of accident. Accordingly, the loss of earning capacity is assessed as under:- Monthly income = Rs. 5,000/ Addition of 40% =Rs. 7,000/- (Rs. 5000 + 2000). Loss of income due to disability comes to Rs.15,12,000/- (Rs. 7,000 x 12 x 18)with 100% loss of income.). Page 45 of 54 20.23. A question may, still arise as to when the claimant has not filed any cross-objection regarding enhancement of the compensation amount under the relevant head can this court enhance the same. However, from various decisions of Hon’ble Supreme Court, it is now well settled that the Court has to assess the just compensation, which the claimants are entitled to in Motor Accident Claims cases. Reference in this context can be made to decision of a three Judges Bench of Hon’ble Supreme Court in Nagappa vs. Gurudayal Singh, reported in(2003) 2 SCC 274,wherein it has been held that under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as “the MV Act”) there is no restriction that compensation can be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is that it should be “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear from reference to the relevant provisions of the MV Act. Thus, there is no embargo in the enhancement of the compensation amount notwithstanding absence of cross-objection on the part of the claimant. 21. Now, moving forward to the head No. (vi), i.e. pain and sufferings and mental agony, this Court finds that the learned Tribunal had awarded a sum of Rs. 3,00,000/ under this head. While awarding the same, the learned Tribunal had observed that admittedly, at the time of the accident, the injured was a young woman of 24 years. For the remaining life, she will suffer the trauma of not being able to do her normal work. She was in Hospital from 22.04.2008 till 15.06.2008. Therefore, the Tribunal had felt that the ends of justice would be met by awarding her a sum of Rs. 3,00,000/- in lieu of pain, suffering and trauma caused due to loss of ability to move herself without help of others. 21.1. The justification, so given by the learned Tribunal seems to be not arbitrary or bereft of logic. Though by referring to the decision of Hon’ble Supreme Court in the case of R.D. Hatangi (supra), the learned counsel for the appellant had tried to demonstrate that the amount is on higher side, yet it appears that the said decision was of dated 06.01.1995. Since then more than three decades elapsed. The value of money has, in the meantime, gone down considerably. The value of Rs.100,000 in 1995, has now inflated to about Rs. 6,53,704/ in 2026, and judicial notice of this factum could be taken. Thus, having adjudged the submission of Mr. Dutta, from the aforesaid stand point, this Court is of the view that the amount so awarded is neither arbitrary nor illegal and as such, the submission of Mr. Dutta, left this Court unimpressed and the decision, relied upon by him, also does not advance his argument. 22. With regard to the submission of Mr. Dutta, that the learned Tribunal had committed an error by awarding interest of future prospects and funeral expenses, this Court finds that having assessed the amount of compensation at Rs. 29,58,100/- (Rupees twenty nine lakhs fifty eight thousand one hundred) the learned Tribunal had directed the appellant herein, i.e. Oriental Insurance Co. Ltd. to pay the same to the claimant along with interest @ 6% p.a. from the date of filing of the claim petition i.e. from 21.05.2010 till its realization. 22.1. This issue was considered by Hon’ble Supreme Court in The Oriental Insurance Co. Ltd. vs. Niru @ Niharika & Ors., Special Leave Petition (C) No.11340/2020, dated July 14, 2025. Wherein it has been held as under:- 9. A very relevant issue agitated by the Insurance Company is the illegality in awarding interest for future prospects, which in any event is an amount received in advance, normally inuring to the benefit of the claimants only in future. This is the only contention taken in the connected appeal bearing SLP(C) No.22136 of 2024. We find absolutely no reason to accept this argument. In SLP(C) No.11340 of 2020, the multiplier applied looking at the life span of the deceased and the claimants is 13. Before the Tribunal itself, the case was pending for 12 years and the only amount received by the claimants was Rs.50,000/-. Hence though amounts are awarded for future prospects taking the multiplier of 13; in effect, the money is received only after the period for which the multiplier is adopted. Similar is the case in SLP(C) No.22136 of 2024, where the accident occurred in 2018, the multiplier applied is 17 and we are seven years from the date of accident. 10. We cannot but observe that there was nothing stopping the Insurance Company from settling the claim on a computation, on receipt of intimation of the accident, especially since the determination of compensation for loss of dependency, on death being occasioned in a motor vehicle accident, can be determined as evident from the judicial precedents; at least provisionally. 11. In fact, it is due to the repudiation of or refusal to consider the claim that the claimants are driven to the Tribunal. When the matter is pending before the Tribunal or in appeal before the higher forums, the claimants are deprived of the compensation for future prospects. If they are paid in time, it could be utilized by the claimants and on failure, the loss of dependency would force the claimants to source their livelihood from elsewhere. This is sought to be compensated at least minimally by award of interest, which oftener them ever is nominal also since only simple interest is awarded. If the amounts were disbursed to the claimants on a rough calculation, on intimation of the accident to the Insurance Company, subject to the award of the Tribunal, necessarily there would not have been any interest liability at least to the extent of the disbursement made. Hence, we reject the contention and direct that the entire award amounts would be paid with interest at the rate of 9% from the date of filing of the claim till the date of disbursement, deducting only Rs.50,000/- granted as interim compensation, in SLP(C) No.11340 of 2020 and 6% in SLP(C) No.22136 of 2024 as awarded by the High Court; deduction to be made for the amounts already paid. Page 49 of 54 22.2. In the instant case, the accident took place on 21.04.2008. The learned Tribunal had delivered the judgment and award on 30.09.2016. Today, we are in 2026. In the meantime 18 years have elapsed. And as such in view of the decision of Hon’ble Supreme Court in the case of Niru @ Niharika & Ors.,(supra) this court is unable to agree with the submission of Mr. Dutta, learned counsel for the appellant and accordingly the same stands repudiated. 23. Moving forward to the submission of Mr. Dutta, in respect of awarding compensation under the head of future expenses, this Court find that the learned Tribunal had awarded a sum of Rs. 50,000/- under this head. Since, it is evident that the victim/claimant suffered permanent disability and since she cannot move without escort and wheel chair, which has to be changed in future on several occasion and she is only 24 years old at the time of accident, also she has to undergo medical check-up regularly, the award of compensation under this head by the learned Tribunal appears to be not at all arbitrary. Therefore, the contention of Mr. Dutta in this regard cannot be accepted. 24. Thus, the compensation, which the victim/claimant is entitled to under the different heads as laid down in the case of Rajkumar(supra) as under:- “Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure:- The learned Tribunal had awarded as sum of Rs. 9.44,500/- being the medical expenditure after considering the vouchers placed on record and exhibited by the claimant. Here the learned Tribunal had not awarded any compensation under the Sub-Head - transportation, nourishing food, and miscellaneous expenditure. In view of the fact that the victim-claimant took treatment at Bongaigan and then at GNRC, Guwahati and thereafter at Christian Medical College Hospital at Vellor, Chennai and that she was hospitalized for a considerable period from 22.04.2008 till 15.06.2008, and also under the given facts and circumstances on the record, this Court is of the view that the victim/claimant is entitled to some amount of compensation under the aforesaid heads also. Accordingly, following sums are assessed under the aforesaid heads:- (i) Nourishing Food = Rs. 20,000/- (ii) Transportation = Rs. 50,000/- (iii) Miscellaneous = Rs. 10,000/- Total = Rs.80,000/ Thus, under this head, i.e. head No. (i), she is entitled to a sum of Rs. 9.44,500/-+ Rs. 80,000/-= Rs. 10,24,500/. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising : (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. The victim was discharged from her job when she failed to attend her job. And as such the learned Tribunal had not awarded any sum under the head No. (ii) (a). Instead, the learned Tribunal had awarded a sum of Rs. 12,63,600/-under head (ii) (b). However the same is re-assessed at Rs.15,12,000/- after addition of 40% of under the head loss of future earning. (iii) Future medical expenses:- The learned Tribunal had awarded a sum of Rs. 50,000/- under the head which seems to be justified and reasonable. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries:- Under this head the learned Tribunal has awarded a sum of Rs. 3,00,000/, which also seems to be justified in the given factual scenario. (v) Loss of amenities (and/or loss of prospects of marriage):- Under this head the learned Tribunal has awarded a sum of Rs. 2,00,000/. However, in view of decision of Hon’ble Supreme Court in the case of Rajkumar (supra) 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. Keeping in mind the aforesaid proposition, this Court is inclined to award a sum of Rs.10,000/ under this head. (vi) Loss of expectation of life (shortening of normal longevity):- In view of the aforesaid proposition, this Court is inclined to award a sum of Rs.10,000/ being a nominal amount. 25. Also this Court is inclined to add a sum of Rs.25,000/-as the cost of litigation in view of decision of Hon'ble Supreme Court in Balram Prasad Vs. Kunal Saha & others, reported in(2014) 1 SCC 384. 26. Thus, the claimant is entitled to total amount of Rs.29,31,500/(Rupees twenty nine lakhs thirty one thousand five hundred) [Rs. 10,24,500/ + Rs.15,12,000/ + Rs. 50,000/+ Rs. 3,00,000/,+ Rs.10,000/ + Rs.10,000/ + Rs.25,000/ =29,31,500/] only, as compensation, and in our considered opinion, this amount would be the just, equitable, fair and reasonable amount of compensation here in this case. 27. It is to be noted that while making assessment of the aforesaid compensation, this Court has placed reliance upon a decision of Hon’ble Supreme Court in Savita v. Bindar Singh and others, reported in (2014) 4 SCC 505, wherein, considering its earlier decisions in Santosh Devi Vs. National Insurance Co. Ltd. and others, reported in (2012) 6 SCC 421, it has been observed as under:- “We are of the opinion that it is the duty of the court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation.” 28. It also appears that the learned Tribunal directed to pay interest @ 6% per annum, from the date of filing of the claim petition till payment of the amount. But, the same appears to be on the lower side. The learned counsel for the appellant in MAC Appeal No. 384/2019, has rightly submitted that the rate of interest is on the lower side. In the case of Municipal Corporation of Delhi Vs. Upahar Tragedy Victims Association and Ors, (2011) 14 SCC 481 and also in Kalpanaraj vs. Tamil Nadu State Transport Corporation: (2014) Acci.C.R.693 (S.C.), Hon’ble Supreme Court has held that the amount of compensation shall carry interest @ 9%, till realization of the amount. Therefore, drawing premises for the aforesaid decision it is provided that the amount of compensation shall carry interest @ 9% per annum till realization from the date of filing of the claim petition, i.e. 21.05.2010, as directed by the learned Tribunal. 29. In the result, this Court finds no merit in this appeal and accordingly, the same stands dismissed. However, the award and the rate of interest is modified to the extent indicated herein above. The appellant shall deposit aforesaid amount of compensation within a period of 1(one) month from the date of receipt of the certified copy of this judgment and order, directly in the account of the claimant by NEFT or by any other electronic mode convenient to it. 30. Send down the record of the learned Tribunal with a copy of this judgment and order. The parties have to bear their own cost. JUDGE Comparing Assistant