JUDGMENT AND ORDER :

1. The appeal being MAC. App. No. 115 of 2013 [National Insurance Co. Ltd. vs. Biswajit Roy & Another] and Cross Objection being CO (FA) No. 03 of 2014 [Sri Biswajit Roy vs. Smti. Sushmita Sarkar (Dasgupta)] are clustered for disposal by a common judgment as this appeal and the cross objection arise from the judgment and award dated 15.05.2013 delivered in T.S. (MAC) No. 161 of 2012 by the Motor Accident Claims Tribunal, Court No. 4, West Tripura, Agartala.

2. Heard Mr. P. Gautam, learned counsel appearing for the appellant as well as Mr. S. Pal, learned counsel appearing for the respondent/cross-objector.

3. In this appeal and the cross objection, the fundamental facts of the road traffic accident are not in dispute. The cross-objector, hereinafter referred to as the victim, while proceeding towards Krishnagar by riding his motor bike on 22.02.2012 at about 9.30 pm near the BOC at Bardowali he was dashed by a speeding vehicle bearing No. TR-01-C-3378 (Tata Sumo) and from the said accident he received serious injuries on his person, particularly in the lower limb. He was immediately rushed to the GBP Hospital, Agartala but considering the seriousness of the injuries he was taken to the Apollo Hospital, Kolkata where he was treated as an indoor patient w.e.f. 23.02.2012 to 02.03.2012. He sustained injuries on his leg, chest, head and other parts of his body. After discharge from the hospital the victim was under regular medical care.

4. According to the victim, the accident could occur for rash and negligent driving of the said vehicle by its driver. He claimed for compensation to the extent at Rs. 28,00000/-. The tribunal after recording the evidence and making the purported inquiry awarded a sum of Rs. 16,14,980/- with interest @ 7% per annum from the date of filing of the claim petition i.e. 19.04.2012 till the final payment is made.

5. It has been further directed that failing in payment in time i.e. within a period of 2 months from the date of the judgment, the said sum shall carry interest @ 9% per annum from the date of filing of the claim petition.

6. Mr. Gautam, learned counsel appearing for the appellant has raised two fundamental objections viz. the assessment of income of the victim is not based on correct procedure and reliance on one income tax return for the year 2010-2011 is unacceptable inasmuch as this income tax return is not for the relevant year. That apart, to assess the income of a business man based on the return of one year is always subject to question.

7. Mr. Gautam, learned counsel has further submitted that even the assessment of tribunal in respect of the disability is unacceptable as 85% disablement as recorded in the disability certificate is conditional and temporary one. For the method that has been followed by the tribunal, to consider the disablement as the permanent disablement the entire assessment has been vitiated.

8. Mr. Gautam, learned counsel has submitted that the Apex Court has clearly laid down the law how to assess the disability vis-a-vis the functional disability to assess the loss of earning in Raj Kumar vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343. According to him, 40% disability of the lower limb cannot be treated as the functional disability of the entire body. The percentage of such disability has to be related to disability of the body as a whole. Such disability on doubt takes away the functional capacity but that is not of equal proportion.

9. Thereafter, Mr. Gautam, learned counsel has submitted that the compensation as awarded by the tribunal cannot be sustained. In the last lap of his submission, Mr. Gautam, learned counsel has submitted that award of penal interest @ 9% is entirely unsustainable inasmuch as the Apex Court has clearly laid down the law that under Section 171 of the Motor Vehicles Act, the tribunal does not have any authority to impose penal interest with retrospective effect.

10. From the other side, Mr. S. Pal, learned counsel

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