Motor Accident Claim Petition No.299 of 2002 (Satya Prakash Dwivedi v. Munna & Ors.) whereby and where under the Tribunal has awarded compensation of Rs.6,03,000/- along with interest at the rate of Rs.7% per annum. 2. Satya Prakash Dwivedi - the claimant-respondent no.1 preferred a claim petition under Section 140 read with Section 166 of the Act inter alia on the ground that on 30.10.2000 when he was returning from his canteen to his home on motorcycle no. UP 93 H 5532 at about 6:30 pm, when the claimant reached near Purohit Nursing Home at Kanpur Jhansi National Highway the offending truck bearing registration no.UP 32 Z 2570 came on the wrong side of the road and dashed against the claimant as a result of which the claimant sufferred grievous injuries. The claimant underwent treatment for 470 days and on account of the said accident the claimant became permanently disabled. At the time of accident the claimant was 32 years of age and was running a canteen from which he was earning Rs.10,000/- per month. A sum of Rs.17,00,000/- along with interest at the rate of 17% per annum was claimed towards compensation. 3. The claim petition was resisted by the appellant and the owner of the truck by filing their respective written statements. In his written statement the owner of the truck inter alia pleaded that the accident had taken place due to rash and negligent driving of the claimant. The parties led oral and documentary evidence. In support of his claim, the claimant examined himself as P.W.1 and one Rajesh Kumar as P.W.2. From the side of defendant no.2 Jagdish Pandey was examined as D.W.1. On the basis of the pleadings of the parties, the Tribunal framed five issues. 4. The Tribunal after examining the oral and documentary evidence on record came to the conclusion that the accident had taken place on account of rash and negligent driving of the truck driver. The truck was insured with the appellant Company and on the date of accident the driver of the truck was having a valid licence. The plea of negligent driving by the claimant raised on behalf of the truck owner, was negated. The Tribunal took the age of the claimant as 35 years and in the absence of any proof of income, took the income of the claimant at Rs.3000/- per month and thereafter taking the disability as 70% applied the multiple of 17 and awarded a sum of Rs.4,28,400/- towards compensation, Rs.1,00,000/- towards medical expenses, Rs.50,000/- towards mental pain and agony and Rs.25,000/- towards future medical expenses total Rs.6,03,400/- along with interest at the rate of 7%. The relevant portion of the award to which our attention has been invited by the learned counsel for the appellant is extracted below:- - (1.) This First Appeal From Order has been filed by the United India Insurance Company Limited (for short 'Company') under Section 173 of Motor Vehicle Act, 1988 (for short 'Act') challenging the judgment and award dated 30.10.2006 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No.4, Jhansi in In this manner after perusing the case-laws presented by the parties, oral and documentary evidence available on the record and all the documents relating to the treatment, I have reached to this conclusion that the petitioner was a young man of 35 years and as such he could earn at least Rs.100/- per day. Therefore it would be appropriate to assume Rs. 4000/- as his monthly income. Since he has now become 70% disabled. The time when the disability certificate has been presented and even though the disability certificate has not been got proved by the doctor but on the basis of the case laws presented by both the parties and keeping into account the x-ray plates and injuries related to petitioner's treatment and the condition of the petitioner, it would be proper to consider him as 70% disabled as he is not in a position to move on his own and appears for the pairavi of the case with the support of the crutches. In this manner, at the rate of Rs. 400/- per day it amounts to Rs. 4000/- per month and Rs. 46,000/- per year; 70% of which amounts to Rs. 45,200/- and as petitioner is 35 years old that's why on multiplying by 17 it amounts to Rs. 4,28,400/- and as petitioner was treated for quite a long time and bills were also presented in this regard, therefore he is entitled to get at least Rs. 4,00,000/- for treatment, Rs. 40,000/- for mental harassment and Rs. 45,000/- for treatment in future and he is also entitled to get interest on this amount at the rate of 7% per annum from the date to filing of petition till the payment. In this manner petitioner is entitled to get Rs. 4,03,400/- along with interest, as per above. In accident, no contributory negligence has been found on the part of defendant No. 4 and 5 that's why they have no liability of paying compensation. Only defendant No. 3 is liable to pay the compensation as the truck of defendant No. 2 is insured from the office of defendant No. 3. Fact-in-issue No. 5 of the case is decided accordingly. (english translation by Court) 5. Shri Saurabh Srivastava, learned counsel for the appellant has vehemently submitted that the finding recorded by the Tribunal that the claimant was 70% disabled is based on conjectures and surmises and is liable to be set aside. The counsel further submitted that the award of Rs.1,00,000/- towards medical expenses was excessive and in the absence of specific medical evidence award of Rs.25,000/- towards further medical expenses also cannot be sustained and is liable to be set aside. 6. Per contra, Shri V.K. Nagaich, learned counsel for the claimant-respondent has supported the award and has submitted that the disability certificate was a public document and was admissible in evidence. According to him, the present appeal is devoid of merit and is liable to be dismissed with cost. 7. Heard the counsel for the parties and perused the record. 8. In personal injury cases, compensation is awarded for pecuniary damages (Special Damages) and non-pecuniary damages (General Damages). Expenses relating to treatment, hospitalisation, medicines, future medical expenses, loss of earning during the period of treatment and loss of future earnings on account of permanent disability are awarded under the head pecuniary damages . Damages for mental pain and agony is awarded under the head non-pecuniary damages . Assessment of pecuniary damages pertaining to treatment, hospitalisation, medicines involves reimbursement of actuals and are to be ascertained from the evidence on record, whereas, award under the head of future medical expenses depends upon specific medical evidence regarding the need for further treatment and cost thereof. 9. In Raj Kumar v. Ajay Kumar & Anr., (2011) 1 MHLJ 343 the Apex Court after observing that the Courts or Tribunals should 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, was inevitable, has very succinctly laid down the general principles of law to be followed while awarding compensation in injury cases. Relevant part of paragraph nos.8, 10, 11, 12, 13 and 18 of the said report are being extracted below:- 10. 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. 11. 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. 12. 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 terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). 13. 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 ha affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The 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. and then in paragraph 18 the Apex Court has held as under:- 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. 10. Thus from the above discussions, the following principles relevant for the purposes of the present controversy, emerge:- 1. The Court or Tribunal should 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. 2. 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. 3. 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. 4. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. 5. In cases relating to compensation in injury cases, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. 6. The burden to prove disability is on the claimant. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. The percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability is different from the percentage of permanent disability. 13. The Tribunal should further assess 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 and thereafter, computing the future loss of earning by applying the standard multiplier method used to determine loss of dependency. 11. The principles enunciated in the case of Raj Kumar (supra) have been followed by the Apex Court in all the subsequent cases. 12. In the case in hand, the claimant, in support of his claim of him having suffered permanent disability as a result of the accident, has placed reliance upon a disability certificate dated 31.5.2001. As per the said disability certificate, the claimant has suffered 70% disability. The relevant part of the disability certificate is extracted below:- Post Traumah Partial ankylosis in both knees, both ankles & both wrists. Its with inability to stand & walk. = 70% 13. The burden to prove disability is always on the claimant. The object of production of disability certificate is only to assess percentage of disability. The Tribunal is not bound to accept the disability certificate on its face value. The claimant is obliged to prove the disability certificate like any other document as per the procedure established by law. 14. In the impugned award, the Tribunal has observed that the disability certificate was not proved by the claimant. However, the Tribunal, on the basis of the case laws cited before it by both the parties, x-ray plates, injuries alleged to have been suffered by the claimant and by merely looking at the condition of the claimant, who had appeared before the Tribunal with the support of crutches, mechanically returned a finding that the petitioner was 70% disabled. As has been held by the Apex Court, mere production of a disability certificate or discharge certificate is not the 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, was tendered for cross-examination with reference to the certificate. The Apex Court has categorically held that the Tribunal must invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. In the present case, the dictum of the Apex Court has been followed in its breach. The finding recorded by the Tribunal that the claimant was 70% disabled is simply based on speculation and cannot be upheld. 15. Even if it is taken that the claimant had sufferred 70% disability as a result of injuries sustained by the claimant in the accident, the Tribunal for assessing the compensation under the head of loss of future earnings, was obliged to consider the effect and impact of the alleged permanent disability of the claimant on his earning capacity. The Tribunal, in the present case, has mechanically applied the percentage of the permanent disability as percentage of economical loss or loss of earning capacity. For assessing the loss of compensation under the head of loss of future earnings. The Tribunal was obliged to follow the procedure as laid down by the Apex Court in paragraph 13 in the case of Raj Kumar (supra). While awarding compensation of Rs.4,28,400/- to the claimant under the head of loss of future earnings, since the Tribunal has not adhered to the procedure laid down in the case of Raj Kumar (supra), the impugned award cannot be sustained and is liable to be set aside. 16. Apart from the above, as per the disability certificate, the claimant had sufferred partial ankylosis. Partial ankylosis is stiffness of a joint due to abnormal adhesion and rigidity of joint, which may be the result of disease, injury, or surgical procedure. Ankylosis can result from a wide range of factors including Genetic Factors, Fracture and Injury, Rheumatoid Arthritis, Infection and Immobility. The disorder can be cured with proper management. 17. The Tribunal while assessing the permanent disability was obliged to act with caution. There is no medical evidence on record to establish that the alleged partial ankylosis with which the claimant was sufferring was on account of the injuries suffered by the claimant in the road accident in question. While assessing the permanent disability of the claimant the Tribunal was obliged to consider as to whether there was any possibility of recuperation after treatment, which too has not been done in the present case. 18. In the circumstances, the findings recorded by the Tribunal that the claimant was 70% disabled and mechanically applying the percentage of permanent disability as percentage of economic loss or loss of earning capacity cannot be upheld. 19. In so far as award of Rs.1,00,000/- towards medical expenses is concerned, it transpires that by the time the claimant appeared in the witness box the claimant had not filed the documents pertaining to his treatment. Later on the claimant filed the documents along with the list 76-Ga and list 2-Ga. We find from the record that a large number of bills/vouchers filed by the claimant do not relate to him. As has already been mentioned above, the assessment of pecuniary damages towards treatment, hospitalisation, medicines involves reimbursement of actuals and are to be ascertained from the evidence on record. The Tribunal instead has awarded a sum of Rs.1,00,000/- towards medical expenses only on conjectures and surmises. In the circumstances, the award of Rs.1,00,000/- towards medical expenses too cannot be sustained and is liable to be set aside. 20. The Tribunal has further awarded a sum of Rs.25,000/- towards future treatment whimsically without there being any specific medical evidence regarding need of fututure treatment and cost thereof. The award of Rs.25,000/- towards future treatment also cannot be sustained. 21. In view of the discussions made above, the First Appeal From Order is allowed. The impugned award, except the finding recorded by the Tribunal that the accident had actually taken place, is hereby set aside. The matter is remanded back to the Tribunal to decide the matter afresh in the light of the observations made above within a maximum period of six months from the date of production of a certified copy of this order. Appeal Allowed.;