IMPORTANT POINT
The assessment of compensation for permanent disability must consider its impact on the earning capacity, rather than merely applying mechanical percentages.

JUDGMENT :

J. C. Doshi, J.

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the legal heirs of deceased - Khodabhai Khegarbhai Vankar challenging judgment and award dated 09.08.2010 passed by the Motor Accident Claims Tribunal, Patan in Motor Accident Claim Petition No.4057 of 2002 (Old MACP No.1356 of 2000), whereby, learned Tribunal assessed compensation in tune of Rs.6,60,000/- and opponent no.4 and 5 of the claim petition are directed to pay said compensation along with interest at 7.5% p.a. and cost from the date of petition till realization. The claim petition was filed by deceased - Khodabhai, however, he expired in natural cause after impugned judgment and award was passed by the learned Tribunal and therefore, the appeal is filed by his legal heirs and representatives.

2. The brief facts of the case are as under.

2.1 On 02.06.2000, deceased - Khodabhai was going on Bullet No.GJ-2-3550 from Modera to Chanasma and when he reached at the place of accident, one Scooter being No.GJ-2-N-9022 came in rash and negligent manner and dashed with deceased, as a result, he received serious injuries.

2.2 FIR of incident was registered before the concerned Police Station.

2.3. The claimant filed claim petition under section 166 of MV Act being MACP No.4072 of 2002 claiming compensation of Rs.20,00,000/- along with interest jointly and severally from the opponents.

2.4. After appreciating evidence on record, learned Tribunal was pleased to pass judgment and award in tune of Rs.6,60,000/- with 7.5% interest from the date of claim petition.

2.5. Being aggrieved and dissatisfied with impugned judgment and award dated 09.08.2010, the legal heirs of - original claimant has filed present appeal.

3. Learned advocate Mr.Thakore for the appellant assailed impugned judgment mainly on the ground that learned Tribunal ought to have taken income of the deceased at Rs.8466/- instead of Rs.5000/- per month. He would submit that deceased was claimant before the learned Tribunal and he has proved his income by producing salary certificate. He submits that since it is statutory evidence on record, learned Tribunal cannot depart and take any other figure as income of the claimant. He would further submit that deceased received serious injuries from road accident and Doctor opined that he became paraplegic and had no capacity to do any work and therefore, learned Tribunal ought to have assessed 100% functional disability. It is submitted that learned Tribunal erred in sticking with physical 75% disability assessed by Doctor. It is submitted that physical disability and functional disability, both are different and distinct. Physical disability may be assessed 75% but since deceased claimant become paraplegic due to road accident, learned Tribunal ought to have considered wholly incapacity to work, which lead to 100% functional disability. It is submitted that learned Tribunal failed to grant loss of future prospects corresponding to the age of the deceased - claimant. It is submitted that in view of judgment of Hon'ble Apex Court in National Insurance Company Ltd. Vs. Pranay Shethi reported in [(2017) 16 SCC 680], 30% rise is required to given for loss of future prospects. It is also submitted that learned Tribunal ought to have assessed pain, shock and suffering, transportation charges, actual loss of income, attendant charges rationally.

3.1. Upon above submissions, it is submitted to enhance amount of compensation granted by learned Tribunal.

3.2. Second submission of learned advocate Mr.Thakore for the appellants was to the extent that learned Tribunal has wrongly assessed 20% contributory negligence of the deceased - claimant in causing road accident. He would submit that driver of offending vehicle did not enter into witness box. Claimant has asserted that driver of offending vehicle was fully negligent in causing road accident. Such assertion has not been rebutted by driver of offending vehicle or by other si