The court emphasized the importance of considering functional disability and medical evidence in determining just compensation for personal injury under the Motor Vehicles Act, 1988.

JUDGMENT :

GITA GOPI, J.

1. The injured claimant has challenged the judgment dated 30.8.2002 passed by the MACT (Aux), Ahmedabad (Rural) in MACP No. 632/95. The grounds inter-alia raised challenging the judgment are that the compensation has not been granted as per the functional disability and the amount under the various heads are also on lower side and the learned Tribunal has not considered the same in right perspective.

2. Learned advocate Mr. Heet Jhaveri for the appellant submitted that the learned Tribunal though had considered the evidence on record with regard to the treatment undergone by the claimant and had also considered 40.03% physical disability assessed of the body as a whole by the orthopedic surgeon but has failed to consider the functional disability of the claimant accordingly and has assessed disability as 30%. Learned advocate Mr. Jhaveri submitted that the Tribunal was required to follow the principles laid down in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 to decide the functional disability since the claimant could not continue with her job, and to state that under various heads to grant just compensation requires holistic view of this court, Advocate Mr. Jhaveri has placed reliance on the judgments of Mangla Ram vs. Oriental Insurance Company Limited, (2018) 5 SCC 656 and Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma, (2015) 2 SCC 180 and also to contend that strict proof of accident is not possible when the claimants are merely required to establish their case on the touchstone of preponderance of probability.

3. The Hon’ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 SCC 343 has observed as under:

“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 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.”

4. As per the facts of the case, on 9.1.1995, the applicant claimant was going towards drive in road from Thaltej on her Sunny moped bearing registration no. GJ-1-N-9916. She had sto