Allahabad High Court

Reliance General Insurance Co. ... vs Raghav Sharan And Another on 17 January, 2023

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6						        Reserved
 
									A.F.R.
 
Case :- FIRST APPEAL FROM ORDER No. - 2682 of 2017
 

 
Appellant :- Reliance General Insurance Co. Ltd.
 
Respondent :- Raghav Sharan and another
 
Counsel for Appellant :- Mr. Sushil Kumar Mehrotra, Advocate
 
Counsel for Respondent :- Mr. Ram Singh, Advocate
 

 
Hon'ble J.J. Munir,J.

This appeal by the Insurance Company is directed against the judgment and award of the Motor Accident Claims Tribunal/ Additional District Judge, Court No.1, Banda dated 29.05.2017, allowing Motor Accident Claims Petition No. 39/70/2012. By the impugned judgment and award, a sum of Rs. 10 lakhs has been awarded by the Tribunal for the permanent disability sustained by the claimant-respondent in a motor accident.

2. Heard Mr. S.K. Mehrotra, learned Counsel for the appellant-Insurance Company and Mr. Ram Singh, learned Counsel appearing on behalf of claimant-respondent No.1. No one appears on behalf of the owner-respondent No. 2.

3. The facts giving rise to this appeal are that the claimant-respondent No. 1 (for short, ''the claimant') instituted the claim petition before the Tribunal giving rise to this appeal with a case that on 26.09.2011 at about half past five in the evening, he was proceeding on a bicycle from Village Ahila to his village. As soon as the claimant emerged from Village Ahila and moved on to the Banda-Baberu Road reaching the culvert, he met one Ram Kishan son of Basdev, a resident of Village Poon. The claimant stood on the side of the road and the two were talking amongst themselves. Suddenly, a vehicle of Marshal Max Make, bearing registration No. UP-90B/9067, driven by Kalka Prasad @ Kela, rashly, negligently and at a high speed, approached from the Banda end. The vehicle aforesaid struck the claimant, causing him to be severely injured. The claimant's son and Ram Kishan ferried him to the District Hospital for medical aid. He was found to have sustained grievous injuries on his body and lower limbs, for the treatment whereof he was referred by the District Hospital to a higher centre at Kanpur. The claimant was admitted for treatment to the North Star Hospital at Kanpur. The Doctors there advised that one of his lower limbs was absolutely crushed and would have to be amputated in order to save his life. The lower part of his limb was, therefore, amputated. The claimant urged that he has sustained a loss in the sum of Rs. 10 lakhs, which he sought to recover from the owner of the offending vehicle and the respondent-Insurance Company (for short, ''the Insurers').

4. A written statement was filed on behalf of Kalka Prasad son of Bhaiyadeen, who is the driver and the owner of the offending vehicle both. He has denied the assertions in the claim petition generally, but acknowledged that he is the owner of the offending vehicle. It is also accepted that he was driving the vehicle. It is pleaded that the offending vehicle is insured with the Insurers under a policy that was valid from 23.12.2010 to 22.12.2011. The claimant is not entitled to receive any compensation. It is further said that if the Court finds the claimant entitled, it is the Insurers who have to make good the compensation.

5. A separate written statement was filed on behalf of the Insurers. They have generally denied the claimant's case. It is asserted that the accident did not happen on account of the driver of the offending vehicle driving it negligently and at a high speed. It has been pleaded that the claimant has not suffered any permanent disability and is not entitled to claim compensation. It is also the Insurers' case that the amount of Rs. 10 lakhs claimed in compensation is excessive and exorbitant.

6. On the pleadings of parties, the Tribunal framed the following issues (translated into English from Hindi):

"1. Whether on 26.09.2011 at about 5:30 p.m. on the culvert situate at the Banda-Baberu State Highway within the limits of Village Ahila, falling under Police Station Bisanda, District Banda, vehicle Marshal Max, bearing registration No. UP-90B/9067, driven by its driver Kalka Prasad at a high speed and negligently, struck Raghav Sharan, who was standing on the roadside, leading him to sustain grievous injuries?

2. Whether on the date and time of the accident, the driver of vehicle, Kalka Prasad held a valid and effective driving licence and the vehicle had other valid papers available?

3. Whether on the date and time of accident, the vehicle, bearing registration No. UP-90B/9067 was insured with opposite party No. 2, Reliance General Insurance Company Limited and the vehicle was being operated according to the terms of the insurance policy?

4. Whether the claimant is entitled to compensation? If yes, how much and from which of the opposite parties?"

7. The claimant in support of his case examined PW-1, Raghav Sharan, PW-2, Ram Kishan, PW-3, Jawahar Lal Rajput and PW-4 Kamta Prasad. In support of the claimant's case, a number of documents were filed, a summary of which is detailed in the impugned judgment. For the brevity of record, there is no imperative to recapitulate the same. However, the relevant of this evidence shall be referred to during the course of this judgment.

8. The Insurers through a list, paper No. 16 Ga-1 filed the Registration Certificate, paper No. 17-Ga, the Insurance Policy, paper No. 18-Ga and a photostat copy of Kalka Prasad's driving licence, numbered as paper No. 19-Ga.

9. Issues Nos. 1, 2 and 3 were all dealt with together by the Tribunal. All these issues were answered in favour of the claimants and it was held that the accident was caused by Kalka Prasad driving the offending vehicle at a high speed and negligently. On the date of accident, he had a valid and effective driving licence. Also, the vehicle was validly insured on that date by the Insurers.

10. Issue No. 4 was decided separately by the Tribunal. The Tribunal accepted evidence about the expenditure on the treatment that the claimant incurred, which led the Tribunal to hold that a sum of Rs. 3,46,182/- was spent in the treatment. The Tribunal looked into the disability certificate wherefrom it found certified a permanent disability of 70%. In the absence of documentary evidence, the Tribunal did not find for the claimant that he had, from his dairy business and agriculture, a monthly income of Rs. 30,000/-. Indeed, the Tribunal determined for the claimant a notional income of Rs. 3000/-. Thereafter, the Tribunal has proceeded to hold, rather interestingly, that a man's life is expectedly 100 years. Since the claimant is aged 50, the probability is that he would live for another 25 years. The total income for the remainder of the claimant's life has been determined by multiplying his annual income with a multiplier of ''25'.

11. The certified medical disability of 70% has been regarded by the Tribunal as one leading to 75% functional disability, proportionately depriving the claimant of 75% of his income. Out of the total income that the Tribunal has arrived at by adopting the multiplier of ''25', 75% has been discounted as lost income, leading to a figure of Rs. 6,75,000/-. This, according to the Tribunal, is the loss of income that the claimant has sustained. To this figure, has been added the sum of Rs.3,46,182/-, spent on medical treatment.

12. A further sum of Rs.2,00,000/- has been awarded towards loss on account of mental agony, particularly caused by the fact that the claimant had lost one of his limbs permanently. At the tail-end of his reasoning, the Tribunal has opined that the total compensation to which the claimant would be entitled, worked out to a figure of Rs. 12,21,182/-, but since the claimant has sought a compensation of Rs. 10,00,000/- alone, that is what he can be held entitled to.

13. Mr. Sushil Kumar Mehrotra, learned Counsel for the Insurers has submitted that the involvement of the offending vehicle in the accident is not proved. To support the said submission, he relies on the fact that the First Information Report regarding the incident was lodged 20 days afterwards. The Investigating Officer submitted a final report. He says that the said fact shows that the offending vehicle was introduced as an afterthought and the FIR lodged after much delay to create evidence in support of the claim.

14. The next submission is that assuming the accident happened the way it is alleged, the site-plan shows that the claimant was talking to an acquaintance, standing on the roadside. It was callous behaviour on his part and he invited the accident himself. Contributory negligence is, therefore, to be apportioned.

15. About the quantum, Mr. Mehrotra submits that the Tribunal has committed grave error to hold that a multiplier of ''25' would apply assuming that the claimant would live for another 25 years. He has referred to the judgment of the Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 to urge that going by the Table set forth in Paragraph No. 40 of the judgment in Sarla Verma (supra), the claimant being in the age bracket of 46-50 years, the applicable multiplier would be ''13'.

16. It has next been submitted that the compensation worked out on the assumption that the claimant has sustained 75% disability is manifestly illegal, inasmuch as the disability certificate speaks about 70% permanent disability, which cannot be equated for a like figure of functional disability or loss of earning capacity. There is no way that 70% medical disability could translate to 75% functional disability.

17. Mr. Mehrotra in the last submits that going by the settled principles, the compensation awarded in a motor accident claim, should be one that is just and reasonable. It should neither be a pittance nor a bonanza.

18. Mr. Ram Singh, learned Counsel for the claimant, on the other hand, submits that the Tribunal has made a just award and what cannot be ignored is that the claimant has suffered amputation one of his lower limbs. The injury is disabling and permanent. He further submits that it is incorrect to say that the injured sustained the accident on account of his contributory negligence or that the offending vehicle was not involved in the accident. He has pointed out to the oral testimony and the site-plan to submit that there is overwhelming evidence on record to establish the factum of the accident, the involvement of the offending vehicle and the sole negligence of the driver of the offending vehicle with no contribution on the claimant's part.

19. Upon hearing the learned Counsel for parties, the foremost to be determined is the question whether the offending vehicle was involved in the accident and if at all there was any contributory negligence on the injured's part.

20. The scathing attack launched on behalf of the Insurers about the involvement of the offending vehicle in the accident is primarily founded on the belated FIR. A perusal of the FIR shows that the explanation about the delay is to be found in its contents. This Court must remark that the explanation to its face is reasonable and acceptable. The FIR was lodged by submission of a written report to the Superintendent of Police, Banda on 13.10.2011, on the basis whereof after the SP's order dated 14.10.2011, the case was registered on 16.10.2011 and a Check FIR issued. In the written information, after describing the accident and what followed regarding the injured's treatment between the District Hospital, Banda and Kanpur, the informant, who is the claimant's son, has stated that he went to lodge the FIR at Police Station Bisanda, but the Police there did not register it. Accordingly, he was making the report to the SP.

21. It is commonplace that FIRs about accidents are very callously dealt with by the Police, who refuse registration for frivolous reasons. It also needs to be taken note of that no one from amongst the general public dare insist with the Police to register their case for fear of their reputed reprisals. The Police have earned that kind of a reputation amongst the general public that the behaviour that is reflected in this case, including the delay, is absolutely consistent with an honest reporting of the incident at the earliest through safe means. The fact that the Police after investigation have submitted a final report is no reason to disbelieve the incident, particularly where the final report was duly protested before the Magistrate. The certified copies of the protest etc. are on record.

22. A perusal of the testimony of PW-1, Raghav Sharan indicates that he has supported the incident in all material particulars in his examination-in-chief. In his cross-examination at the instance of the Insurers, the claimant has stated that he saw the truck number as it slowed down. It has been admitted that the claimant knew the owner-driver of the truck and he was the claimant's acquaintance for about 10-15 years. The mere fact that the owner-driver of the truck was known to the claimant is not by itself a circumstance to infer a case of fraudulent introduction of the offending vehicle in the accident caused by an unknown vehicle. There are multiple witnesses, who have testified to the offending vehicle's involvement, which lends assurance to the claimant's case about the identity of the offending vehicle. A close scrutiny of the evidence of the witnesses does not spare a shadow of doubt about the involvement of the offending vehicle and there is no reason to disbelieve it. The site-plan drawn by the Police shows that the offending vehicle, in fact, hit the claimant by straying away from its path, which shows exclusive negligence on the part of the driver of the offending vehicle.

23. This Court is, therefore, inclined to agree with the Tribunal regarding its findings on Issues Nos. 1 and 2.

24. So far as the quantum of compensation is concerned, this Court is inclined to accept the submission of Mr. Mehrotra that the Tribunal committed a manifest error of law in adopting the multiplier of '25'. The choice of the multiplier by settled law is governed according to the principles laid down by the Supreme Court in Sarla Verma. Paragraph No. 40 of the judgment in Sarla Verma indicates the various multipliers that would be applicable in cases of victims of motor accidents, both fatal and non-fatal. The age brackets have been given and for each such bracket, the proper multiplier to be adopted has been indicated. Going by the Table in Paragraph No.40 of the judgment in Sarla Verma, the injured being in the age bracket of 46-50 years, the applicable multiplier would be '13'. It cannot be '25', because that is a multiplier not at all envisaged in Sarla Verma. The highest multiplier stipulated in Sarla Verma is '18' and nothing more. The multiplier of ''18' can be adopted in the case of much younger victims. So much about the proper multiplier to be adopted in this case.

25. So far as the entitlement of the claimant to compensation is concerned, the most crucial issue to be determined is the functional disability arising from the physical disability, medically assessed. The document, on the basis of which the Tribunal has inferred a 75% disability, is the ''certificate for persons with disability' issued by the Medical Board in the office of the Chief Medical Officer, Banda. It comprises three Doctors, an Eye Surgeon, an E&T Surgeon and an Orthopedic Surgeon. It is countersigned by the Chief Medical Officer himself. It bears a photograph of the injured. It shows him without his right lower limb. The description of the disability is amputation at right knee and the disability certified is 70% in figures. The certificate has been issued on a printed proforma and this Court must remark that the disability percentage entered in figures is '70%', but in words placed in brackets it seems to be 75%. The document, no doubt, is a public document within the meaning of Sections 74 and 77 of the Indian Evidence Act. The formal proof of such a document is not required. In this connection, the principle laid down by a Division Bench of this Court in Shri Ram Kushwaha v. U.P. State Sugar Corporation Ltd. through General Manager, 2015 (2) ADJ 578 is clear. But, in this case, there does not appear to be much quarrel about the genuineness of this certificate; neither before the Tribunal nor before this Court.

26. It must be remarked here that that Jawahar Lal Rajput, Chief Pharmacist, District Hospital, Banda, was examined on behalf of the claimant as PW-3 and he testified to the fact on the basis of records that on 29.09.2011 at 8.40 p.m., the claimant was medically examined at the District Hospital. The medical examination report from the District Hospital, paper No. 70-Ga1 was proved. It was testified that the report bore the signatures of the Emergency Medical Officer, Dr. Vineet Sachan. The witness also said that Dr. Vineet Sachan examined the claimant. This witness also proved the discharge/ referral slip, referring the claimant to a Higher Centre at Kanpur, paper No. 40-Kha. Though, this witness did not specifically prove the disability certificate given the circumstances and the fact that its genuineness has not been disputed, besides the certificate being a public document, it must be held duly proved.

27. The thrust of the issue in this case is not about the validity of the disability certificate. The question is whether the 70% physical disability assessed by the Medical Board translates into 70% or 75% functional disability, as the Tribunal has held. The Tribunal has not at all gone into this issue. It has arithmetically inferred from the percentage of permanent physical disability certified by the Medical Board an equivalent functional disability for the claimant. In fact, the impugned judgment and award passed by the Tribunal does not seem to indicate that the Tribunal was aware about the distinction between medically certified ''permanent physical disability' and the percentage ''functional disability' arising therefrom. It is of prime importance, because it is the functional disability, which alone is relevant to determine compensation to which the injured is entitled. The law is well settled that the permanent physical disability, medically found, may not translate into the same percentage of functional disability.

28. The determination of functional disability depends upon multiple factors. A three step test in this regard has been held by the Supreme Court to be essential for the Tribunal or Court to apply in order to determine the percentage of the functional disability, arising from a specified percentage of permanent physical disability. The principles to assess the percentage of functional disability suffered by a victim, in consequence of a motor accident have been laid down by the Supreme Court in Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343. In Raj Kumar (supra), it has been held:

"13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, 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 be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.

15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may."

29. It has also been emphasized in Raj Kumar that the Tribunal has to play a proactive or inquisitorial role in ascertaining the percentage of functional disability with reference to whole body. This is necessary in order to determine what just compensation would be. In Raj Kumar, it has further been held:

"16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.

17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.

18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give 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 the claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.

19. We may now summarise the principles discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(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 the percentage of loss of earning capacity is the same as the 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 to 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. The assessment of loss of future earnings is explained below with reference to the following illustrations:

Illustration A.-- The injured, a workman, was aged 30 years and earning Rs. 3000 per month at the time of accident. As per doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows:

(a)

Annual income before the accident

Rs. 36,000

(b)

Loss of future earning per annum (15% of the prior annual income)

Rs. 5400

(c)

Multiplier applicable with reference to age

(d)

Loss of future earnings: (5400 × 17)

Rs. 91,800

Illustration B.-- The injured was a driver aged 30 years, earning Rs. 3000 per month. His hand is amputated and his permanent disability is assessed at 60%. He was terminated from his job as he could no longer drive. His chances of getting any other employment was bleak and even if he got any job, the salary was likely to be a pittance. The Tribunal therefore assessed his loss of future earning capacity as 75%. Calculation of compensation will be as follows:

(a)

Annual income prior to the accident

Rs. 36,000

(b)

Loss of future earning per annum (75% of the prior annual income)

Rs. 27,000

(c)

Multiplier applicable with reference to age

(d)

Loss of future earnings: (27,000 × 17)

Rs. 4,59,000

Illustration C.-- The injured was aged 25 years and a final year Engineering student. As a result of the accident, he was in coma for two months, his right hand was amputated and vision was affected. The permanent disablement was assessed as 70%. As the injured was incapacitated to pursue his chosen career and as he required the assistance of a servant throughout his life, the loss of future earning capacity was also assessed as 70%. The calculation of compensation will be as follows:

(a)

Minimum annual income he would have got if had been employed as an engineer

Rs. 60,000

(b)

Loss of future earning per annum (70% of the expected annual income)

Rs. 42,000

(c)

Multiplier applicable (25 years)

(d)

Loss of future earnings: (42,000 × 18)

Rs. 7,56,000

[Note.-- The figures adopted in Illustrations (A) and (B) are hypothetical. The figures in Illustration (C) however are based on actuals taken from the decision in Arvind Kumar Mishra [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] .]"

30. This Court is of clear opinion, as already said, that the percentage of physical disability cannot arithmetically translate into an equivalent functional disability.

31. I had occasion to consider this question in United India Insurance Co. Ltd. vs. Sanjay Dixit, 2022 (2) AWC 1596. In Sanjay Dixit (supra), it was held:

"10. The crux of the matter is that a particular percentage of physical disability cannot arithmetically translate into an equal measure of functional disability. Functional disability would mean the curtailment of the victim's overall capacity on account of injuries sustained in the accident to pursue his profession, avocation, calling, business or service and the resultant total of the loss of earning capacity. The degree of functional disability for the same measure of permanent disability medically certified may be different for different occupations, jobs or professions. It is not the doctors' opinion about the physical disability per se that would determine the functional disability. It is after ascertaining from the doctor the nature of limitations that would result from the injuries that the Court has to decide, bearing in mind the nature of the occupation, profession etc. of the victim, the degree and extent of loss to his earnings that would ensue..."

32. In this case, the Court finds that the Tribunal has rendered the impugned award without the slightest of consideration about the functional disability arising from the medically certified 70% physical disability. The Tribunal's assessment of the disability as 75% appears to be without basis because the disability certificate that is on record clearly mentions in figures a permanent disability of 70%. It appears that the mention of ''seventy five' percent faintly in words have been acted upon by the Tribunal to accept it as a certification of 75% physical disability. Thereafter, of course, the Tribunal has gone completely astray to work out the percentage disability without caring to determine the functional disability resulting from the injury. There is absolutely no assessment done by the Tribunal about the way the permanent physical disability assessed by the Medical Board has affected the claimant's income. The determination of functional disability in this case may require the Tribunal to go into the nature of the physical disability and how it impacts the claimant's capability and physical ability to earn his livelihood by the means that he did. It would require consideration of the impact of the physical disability on the prospects of the claimant in his job, business or profession.

33. This Court does not mean to say that the percentage physical disability found in this case could not produce the same percentage of functional disability, but then it has to be inquired into by the Tribunal by considering the nature of the claimant's work that he does to earn his livelihood and how that would be affected by the injury. It could turn out to be that the functional disability is an equivalent percentage of the permanent physical disability. It could also turn out to be something entirely different in terms of percentage. It may require some inquiry to be made from one of the Doctors of the Medical Board, who have given the disability certificate. The Doctor's evidence would not be up before the Tribunal for determination of the truth of it or otherwise. It has to be carefully evaluated to determine how the permanent disability, given the nature of the injury, would affect the prospects of the injured in earning his livelihood. Here, the Doctor was never called by the claimant as a witness. The Tribunal also did not think it proper to call the Doctor either. This Court is of opinion that one of the Doctors of the Medical Board, preferably the Orthopedic Surgeon, should be summoned in order to enable the Tribunal to ascertain the precise nature of the claimant's disability and then determine its percentage impact on the claimant's functional disability. In this Court's opinion, one of the Doctors on the Medical Board, is particularly required to be examined, which in any case ought to be done, because the disability certificate is on a printed proforma. It gives information about the disability sustained broadly, and rather, bereft of much individual assessment.

34. This Court before proceeding further in the matter must remark that so far as the award of the Tribunal relating to the medical expenses is concerned, the same is unexceptionable. The sum of Rs. 3,46,182/- that the Tribunal has accepted as the medical expenditure involved for the claimant to secure treatment is found by this Court to be correct and is upheld.

35. The Tribunal has proceeded to determine the loss sustained by the injured on the basis of a notional income of Rs.3000/- per month, discarding the claimant's case of income from agriculture and dairy business in the sum of Rs.30,000/-. Upon a consideration of the entire evidence on record, this Court is in agreement with the Tribunal so far as the monthly income of the claimant is concerned. It is, therefore, held that the claimant's income has to be worked out on that basis before the accident, at the relevant time, without anything added to it. This is not to say that nothing is to be added towards future prospects. The claimant had a monthly income of Rs. 3000/-. This finding of the Tribunal is also affirmed.

36. The applicable multiplier would, of course, be '13' and not the fanciful figure of '25' as held by the Tribunal, already referred to hereinbefore. The Tribunal has awarded a compensation for mental pain and suffering, liquidating it at a figure of Rs. 2,00,000/-. In the opinion of this Court that assessment for the mental pain suffered by the claimant is just and fair, considering that he has lost his right lower limb at the knee.

37. The only fallacy that the Tribunal has committed is not summoning one of the Doctors on the Medical Board and assessing on the parameters provided in Raj Kumar, the percentage functional disability arising from the medically certified permanent disability. It is on that account and for the limited reason alone that this matter must go back to the Tribunal for re-determination. Apart from that, the other findings of the Tribunal, as indicated hereinabove, are affirmed and whatever has been held to be determinative of the parties' rights in liquidating the compensation by this Court, shall not be re-opened by the Tribunal. This includes the monthly income, the multiplier applicable, the medical expenses awarded and the compensation in the sum of Rs. 2,00,000/- awarded for the mental pain and agony suffered by the claimants.

38. In addition, the various heads, under which the compensation must be worked out, have been comprehensively indicated by their Lordships of the Supreme Court in Jagdish v. Mohan and others, (2018) 4 SCC 571. Most of these heads have been taken into account by the Tribunal and pronounced upon for the purpose of compensation and some of the findings of the Tribunal have been affirmed by this Court. Still, Paragraph No. 8 of the report in Jagdish (supra) would show that the Tribunal, in order to make a just award, may consider any of the heads for award of compensation that have not been considered while passing the impugned award. Above all, what has to be considered by the Tribunal is the award of future prospects, which again fell for consideration in Jagdish.

39. In the State of Uttar Pradesh, bearing in mind the decision of the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822, addition of income towards loss of future prospects has to be determined in accordance with Rule 220-A (3) of the U.P. Motor Vehicles Rules, 1998 (for short, the Rules of 1998) and not according to the scale of future prospects envisaged in National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680.

40. These are issues which this Court would have determined for itself and passed an award straightaway, but the Tribunal has rendered us handicapped in estimating the functional disability sustained by the claimant.

41. It also deserved to be made explicit that the Tribunal is in no way handicapped in limiting the award of compensation to what the claimant has prayed. It is by now well settled that the Tribunal in awarding compensation should make a just award; and that may well exceed the claimant's demand. The Tribunal shall bear that in mind while passing the award afresh, of course, subject to findings that have been affirmed by this Court and which are not open to determination afresh.

42. In the result, this appeal succeeds and stands allowed in part. The impugned award is set aside, with a remand of the claim petition to the Tribunal, now competent to hear it. The Tribunal shall hear and decide the claim petition afresh in accordance with the remarks in this judgment and on issues alone that are made over to it for determination. The findings and issues that have been affirmed by this Court shall not be re-opened. The necessary evidence shall be examined by the Tribunal, in particular, summoning and examining one of the Doctors on the Medical Board, who have issued the disability certificate to the claimant, for the purpose of passing an award that determines just compensation. The sum of money already paid to the claimant under the Tribunal's award, since set aside, in terms of this judgment, shall not be recovered from the claimant and abide by the final determination to be made about the claim. Any part of the compensation held in deposit with the Tribunal or a Bank under interim orders passed in this case shall, however, be refunded to the appellant. The Tribunal shall proceed to decide the claim petition afresh within three months of receipt of a copy of this judgment, after hearing parties, that is to say, the Insurance Company and the claimant, bearing in mind the directions in this judgment. Both the parties shall appear before the Presiding Officer, Motor Accident Claims Tribunal, Banda on 30.01.2023.