The main legal point established is the correct assessment of disability and the calculation of pecuniary and non-pecuniary damages under the Motor Vehicles Act.

JUDGMENT :

Subhendu Samanta, J.

1. The instant appeal has been preferred against the judgment and award dated December 14, 2011 passed by the learned Judge, Motor Accident Claims Tribunal, 2nd Court, Tamluk, Purba Medipur, in M.A.C. case No. 162/322 of 2010/2009.

2. The brief fact of the case is that the present appellant being the claimant preferred an application before the learned Tribunal under Section 166 of the Motor Vehicles Act for getting compensation from the Insurance Company on the ground that he sustained severe injury in a road traffic accident due to rash and negligent driving of the driver of the offending vehicle duly insured under the policy of the insurance company. By such accident, he sustained severe injury and he became a permanent disabled. The claim was contested by the Insurance Company by filing written statement.

3. After hearing the parties, the learned Tribunal has awarded a sum of Rs.1,85,800/- in favour of the claimants.

4. Being aggrieved by and dissatisfied with the impugned award, the present application has been preferred by the claimant for enhancement of the compensation.

5. Learned advocate for the appellant submits that the learned Tribunal has committed an error in passing the award of compensation. The present appellant was the helper of the offending vehicle bearing no.WB 295984(Bus). Due to such accident, he was admitted to the hospitals including nursing homes and during such treatment he spend huge amount of money, which was not awarded by the learned Tribunal in this case. He further argued that the learned Tribunal has also failed to appreciate the facts that he was permanently disabled, which is 55% as obtained by the Board of Doctors by issuing a disability certificate. The learned Tribunal has erroneously fixed the disability to the extent of 30% only. He again argued that the claimant/appellant is entitled to get future prospect according to the observation of Hon’ble Supreme Court passed in Pranay Shetty.

6. In support of his contention he cited decisions of Hon’ble Supreme Court passed in Raj Kumar Vs. Ajay Kumar & Anr. reported in 2011 ACJ 1, R.K. Hattangadi Vs. Pest Control(India) Pvt. Ltd. reported in 1995 AIR SC 755.

7. Learned advocate appearing on behalf of the Insurance Company submits that the learned Tribunal has committed no error in awarding the compensation. Learned Tribunal has categorically observed that the disability certificate produced before him and he was of view that there are some shortened of leg and fracture in the ancle of the claimant, so, in that case, the disability cannot be more than 30%. The learned Tribunal has also observed the evidence of doctor; in the cross-examination of doctor he had specifically observed that the doctor’s evidence does not support the disability of the claimant to be 55%. He again argued that the claimant has already received the compensation amount and the appeal by the claimant is infructuous.

8. Heard the learned advocates and perused the observation of the learned Tribunal also perused the decisions of Hon’ble Supreme Court cited by the learned advocate for the appellant in Raj Kumar (Supra) the Hon’ble Supreme Court has held that para 9 is quoted below :

“9. Therefore, the Tribunal has to first decide whether there any permanent disability and if so, the extent of such permanent disability. This means that 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 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 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