Both the appeal and the cross objection are being disposed of by a common judgment since the both arise out of the award of the learned Motor Accident Claims Tribunal, Sonamura, West Tripura dated 03.05.2012 in Case No. T.S(MAC) 41 of 2011 whereby the learned Tribunal awarded a sum of Rs.21,60,070/- in favour of the claimant under the following heads:

(i) Cost of medicines = Rs. 2,69,832/-

(ii) Cost of attendant = Rs. 16,350/-

(iii) Cost of air fare & subsequent treatment = Rs. 32,210/-

(iv) Consultation fees = Rs. 4,950/-

(v) Loss of income = Rs.16,51,728/-

(vi) Conveyance allowance = Rs. 20,000/-

(vii) Incidental cost = Rs. 15,000/-

(viii)Pain & sufferings = Rs. 1,00,000/-

(ix) Future expenses = Rs. 50,000/-

Total : Rs.21,60,070/-

Both, the claimant and the insurance company have challenged the award. The claimant claims more amount whereas according to the insurance company the amount awarded is already excessive.

2. The claimant states that he was working as a Sub-Contractor under the Project Manager of Rimky Construction. According to the claimant he also had some landed property and his total income both from work of Sub-Contractor and property was Rs.10,588/-. The learned Tribunal assessed the income at Rs.10,588/- as per the certificate issued by the Deputy Collector & Magistrate, Bishalgarh Revenue Circle and held that the in injury in question had caused 100% loss of income and thereby calculated the future loss of income. The learned Court below has also taken into consideration lot of its personal knowledge while awarding the income. At two distinct stages in the award it is stated that the Tribunal has observed the condition of the claimant-injured when he appeared in the witness box and keeping that into consideration he has assessed the loss of income at 100%. I have perused the order sheet dated 3rd April, 2012 the date on which the petitioner submitted his examination-in-chief by way of affidavit and on which he was cross-examined. The order sheet does not reflect that the Judge had made note of the visual observations made by him. In case any Judge wants to rely upon some observations which he may have made during the course of trial, it is the duty of the Judge to note down these observations on the file. The Judge may or may not finally decide the case for various reasons. He may be transferred, he may be promoted, he may be terminated from service, he may die. Therefore, if anything which the Judge has visually observed, which he feels is relevant to the case must be noted down and this should be noted down orally in the presence of the counsel so that the counsel can raise an objection to the observation being made.

3. Another important factor is that normally a Judge should not become a witness for any party. In case the Judge become the witness or gets so involved in the case that he is behaving in a partisan manner then he ceases to be a Judge and he should recuse from the case. In this case, in the entire file I do not find any observations made by the Judge with regard to the physical condition of the claimant and therefore, I am clearly of the view that the learned Tribunal gravely erred at the time of final arguments in making general observations that he had observed the general condition of the claimant and found that he is incapable of earning.

4. The Presiding Officer of the Tribunal was not a doctor. He is not an expert witness. Claimant’s who come to Court may feign disability. There was a disability certificate on record. The Supreme Court in Raj Kumar Vrs. Ajay Kumar and another, (2011) 1 SCC 343 has clearly held that in case any party wants to prove that its income has reduced drastically by the injury suffered in an accident it must prove not only the disability certificate but also examine through doctor who will prove what work the claimant can do and what work the claimant cannot do. The opposite party has a right to cross-examine this doctor. Nothing of this sought was done in the present