JUDGMENT : SANJEEV KUMAR SHARMA, J. 1. Heard Mr. B.D. Das, learned senior counsel for the appellant/claimant and Mr. T. Kalita, learned counsel for the respondent No.1, Insurance Company. 2. The instant appeal challenges the Judgment and Award dated 10.01.2018 passed by the learned Member, M.A.C.T., Barpeta in MAC case No. 875 of 2015. 3. The facts of the case may be briefly recounted. 4. One Ananta Deka, son of Fulen Deka has filed a petition vide No. 3838/15 dated 15.10.2015 under Sec. 166 read with Sec.140 of M.V. Act seeking compensation to the tune of Rs.15,00,000/-(Rupees Fifteen Lakhs) for the injuries sustained by him in a motor vehicular accident which had allegedly taken place on 14-04-2015 at about 6.15 p.m. on the National Highway near B.H. College, Howly under Howly P.S. with the involvement of two motor vehicles bearing Regd. Nos. AS-15/D-8994 (motor cycle) and AS-01/BQ-1264 (Toyota car). 5. It is alleged that claimant had been pillion riding from Barpeta towards Barpeta Road on a motor cycle bearing registration No. AS-15/D-8994 and the same got hit by a vehicle (Toyota) bearing registration No. AS-01/BQ-1264 which came from the opposite side going from Barpeta Road to Howly in a rash and negligent manner. As a result of the said accident, the claimant sustained serious fracture injuries. 6. The Driver, owner of the alleged offending Toyota car and the insurer of the same had been arrayed as opposite party Nos. 1, 2 and 3 respectively. On receipt of notice, opposite party No.3-Insurance Company only appeared in the case and filed its written statement. Opposite party Nos. 1 and 2 (driver and owner of the offending vehicle) did not contest the case and the case accordingly proceeded ex-parte against them vide order dated 08.11.2016. 7. The O.P No.3 i.e., the SBI General Insurance Company Limited also contested the proceeding by filing written statement with all usual pleas of defence and denied any kind of liability for payment of compensation to the claimant. Although it is stated that the company's liability would be governed by section 147, 148 and 149 (2) of the M.V. Act, no specific statutory defence was taken by the O.P. No.3. It is however, pertinent to mention that O.P. No.3 has contested the proceeding with defence available U/S 170 of the M.V. Act. 8. Although it is stated that the company's liability would be governed by section 147, 148 and 149 (2) of the M.V. Act, no specific statutory defence was taken by the O.P. No.3. It is however, pertinent to mention that O.P. No.3 has contested the proceeding with defence available U/S 170 of the M.V. Act. 8. The learned Tribunal, after evaluating the evidence on record, came to the conclusion that the accident took place as a result of rash and negligent driving of the offending vehicle, and hence, the claimant was entitled to due compensation, and the liability for the same lies with the Insurance Company. 9. Mr. B. D. Das, learned senior counsel has urged that the learned Tribunal has erred in fixing the monthly income of the claimant/appellant at the rate of Rs. 4,000/- per month, inasmuch as, as per the government notification dated 03.11.2015 issued by the Labour and Employment Department, Government of Assam relating to minimum wages of skilled workmen, the monthly income of the claimant/appellant ought to be taken as Rs 10,500/-, as undisputedly, he was a painter by profession, which is a skilled profession. 10. In this regard, learned senior counsel has relied upon the decision of the Hon’ble Supreme Court in Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari , 2025 INSC 1070 . 11. Secondly, it is strongly contended by learned senior counsel that as a result of the accident, which involved the right hand of the claimant/appellant, he is unable to work as a painter, as he cannot lift his hand. 12. Referring to the decision of the Hon’ble Apex Court in Sarnam Singh Vs. Shriram General Insurance Company Limited and others , 2023 Live Law (SC) 498 , it is submitted that the petitioner, being unable to work, his loss of earning capacity should have been assessed at 100% in view of the aforesaid decision in Sarnam Singh ( Supra), but, however, the appellant confines his claim to 45% disability in view of the finding of the concerned medical authority, which opined that the petitioner suffered 45% disability. 13. Per contra, learned counsel for the respondent/Insurance Company has submitted that, in view of the fact that the claimant in his claim petition had admitted his income as Rs. 13. Per contra, learned counsel for the respondent/Insurance Company has submitted that, in view of the fact that the claimant in his claim petition had admitted his income as Rs. 6000/- per month, there is no scope for applying the notification dated 03.11.2015, issued by the government of Assam, to hold that the claimant/appellant was having an income of Rs. 10,500/- per month. Furthermore, referring to the disability certificate, which has been annexed as Annexure 3 to the memo of appeal, it has been pointed out by learned counsel that a disability of 45% has been mentioned therein, but there is no mention as to how much impairment in earning capacity has resulted therefrom. Learned counsel for the Insurance Company has referred to the decision of the Hon’ble Apex Court in Raj Kumar Vs. Ajay Kumar & Anr . (2011) 1 SCC 343, wherein it has been held that what is required to be considered is the percentage of loss of future earning capacity to determine the amount of compensation and it would be wrong to 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 shows 45% as the permanent disability, it did not necessarily mean that the loss of earning capacity would also amount to 45% and therefore, in most cases, equating the extent (percentage of loss of earning capacity) to the extent (percentage of permanent disability) will result in an award of either too low or too high a compensation and what is required to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured. 14. It was further held by the Hon’ble Apex Court in the aforesaid decision as follows: “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 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 (1) 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.” 15. At this stage, it would be apposite to refer to the findings of the learned Tribunal with regard to the extent of disability suffered by the claimant/appellant. 16. The learned Tribunal held as follows: “9. From the medical evidence submitted by the claimant particularly Ext. Nos.2 and Ext. 3 (discharge certificates issued from the Down Town Hospital Ltd., Guwahati) it appears that after accident claimant had mainly taken treatment from Down Town Hospital Ltd., Guwahati for 2 terms with 12 days and 4 days of hospitalization w.e.f. 14.04.2015 to 26.04.2015 and 30.11.2015 to 03.12.2015. Ext.2 the discharge certificate reveals that claimant had sustained fracture of the shaft right femur along with intercondylar fracture of right humerus and fracture of left lateral 1/3rd of clavicle bone. The treatments provided were 15 nailing of right femur under CSEA, open reduction (ORUF) of left clavicle with lateral end LCP under BB and reconstruction of right elbow with bicolumnar plate fixation and inter fragmentary screws under TA. Debridement and SSG of right forearm was also done. Out of the three injuries reconstruction of elbow appears to the the major injury. Ext 3 reveals that the implants done have been removed from right elbow of the claimant. It is claimed by the claimant he had suffered permanent disability and also submitted a Disability Certificate issued by the District Social Social Welfare Department, Barpeta Assam as Ext. 129. Claimant also adduced evidence of the joint Director of Health Services. Barpeta to establish Ext. 129 suggests that claimant has been diagnosed as having 45% locomotor disability due to post traumatic right femur shaft fracture with fracture of intercondylar along with right humerus and comminuted fracture of right elbow. The Joint Director of Health Services, Barpeta, Dr. 129. Claimant also adduced evidence of the joint Director of Health Services. Barpeta to establish Ext. 129 suggests that claimant has been diagnosed as having 45% locomotor disability due to post traumatic right femur shaft fracture with fracture of intercondylar along with right humerus and comminuted fracture of right elbow. The Joint Director of Health Services, Barpeta, Dr. S. Kr Sarma in his evidence while adducing also stated about the said injuries and the disability of the claimant diagnosed and assessed by the District Medical Board, Barpeta on 18.07.2016. But Dr. Sarma did not point out and elaborate as to the effect of such disability on the working/earning capacity of the claimant. 10. It is note worthy that as per Rules a Disability Certificate must find specific mention regarding the body part qua which the disability has been computed/ figured. In the present case the same is not there in Ext. 129. From the injuries it appears that disability, if any, had been suffered by claimant on his right elbow. During evidence (cross-examination) it has been noticed that claimant's elbow has a restricted movement and the forearm does not straighten due to such restricted movement The other joints of the hand are working normally. Now to compute the compensation/ damages which the claimant would be entitled to it is important to figure out as to what extent the disability of the claimant. 12. In the present case claimant is a painter and the disability would have a bearing on his working abilities as he would find it difficult to reach the extremities of a particular wall with his disabled hand. Claimant neither in the claim petition nor in his evidence has neither clearly mentioned about such disabilities. On an overall assessment it is considered that would be reduced by 6-7% and for his benefit 7% of disability is taken into consideration for the purpose of assessing his loss of future income.” 17. At this juncture, it is important to notice an important aspect of the matter, which has been pointed out by the Hon’ble Apex Court in Raj Kumar (Supra), wherein it was observed as follows:- “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. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.” 18. It would be evident that unfortunately, the learned Tribunal, while recording the medical evidence, fell far short of the aforesaid parameters, leaving the Tribunal, at a later stage, to determine the extent of loss of earning capacity on the basis of guess work. It would be evident that unfortunately, the learned Tribunal, while recording the medical evidence, fell far short of the aforesaid parameters, leaving the Tribunal, at a later stage, to determine the extent of loss of earning capacity on the basis of guess work. The learned Tribunal has assessed the loss of earning capacity at 7% on the basis of its observation of the claimant during his cross examination that he was not able to fully straighten his forearm, which would hamper his ability to reach the outer extremities of a wall while painting the same. In other words, in the view of the learned Tribunal, the claimant/appellant did not suffer any such disability as would substantially impair his ability to continue in his chosen vocation, i.e., as a house painter. 19 . Under normal circumstances, the present would have been a fit case for remand for the purpose of proper assessment of the extent of loss of income suffered by the claimant/appellant on the basis of proper medical evidence. However, due to the long lapse of time since the litigation was initiated, which is more than 10 years ago, it would cause further hardship and suffering to the claimant/appellant if the matter is remanded. It is seen that the medical authority had determined the permanent disability of the claimant/appellant at 45 percent, after taking into account all his injuries, including the injury suffered on his leg (femur) and clavicle as well as his elbow. Therefore, keeping the same in mind and also keeping in view the observation of the learned Trial Court as to the extent of disability by way of restriction of movement of the hand suffered by the claimant appellant, the loss of earning capacity is assessed at 10%. Furthermore, since it is the admitted case of the claimant/appellant that he had a monthly income of Rs. 6000/- the question of resorting to the notification of the Government of Assam prescribing the rates of wages for skilled workers does not arise, in as much as the Apex Court in Hitesh Nagjibhai Patel (Supra) had stated that such notifications are to be resorted to where the claimant fail to furnish appropriate details of income or adequate proof thereof. It may be noticed at this stage that the claimant/appellant was not under the employment of any organization as a skilled worker, but was a freelance house painter. It may be noticed at this stage that the claimant/appellant was not under the employment of any organization as a skilled worker, but was a freelance house painter. He may not be working every day. Therefore, the amount of Rs. 6000/- per month is accepted as his monthly income. 20. Keeping in view the aforesaid facts and circumstances, the compensation is recalculated by modifying the award as follows: 21. The respondent No. 1, SBI General Insurance Company Limited, is directed to pay the said amount of compensation with interest at the rate of 9% per annum with effect from the date of filing of the claim petition till realization within 45 days from the date of this order directly into the bank account of the claimant/appellant, the particulars of which are to be submitted by the appellant to the respondent. 22. The appeal stands disposed of accordingly.