JUDGMENT :

NISHA M. THAKORE, J.

1. Heard Mr. Vilav K. Bhatia learned advocate on record for the appellant-original claimant, Mr. Sunil B. Parikh learned advocate has appeared on behalf of respondent No. 2- Insurance Company. Despite service of rule upon respondent No.1 who is the owner of the offending vehicle involved in the accident, has chosen not to enter appearance for contesting the present appeal. With the able assistance of learned advocates on record for the respective parties the appeal is finally heard.

2. The present appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) at the instance of the original claimants, being aggrieved and dissatisfied with the judgment and award dated 05.01.2015 passed by the learned Motor Accident Claim Tribunal (Aux.) Ahmedabad Rural at Mirzapur in MACP No. 373 of 2004. By the said judgment and award though the Tribunal has partly allowed the claim petition preferred by the original claimant under Section 166 of the Act, 1988, holding him entitled to recover sum of Rs. 1,63,500/- with the interest at the rate of 9% per annum from the date of filing of the claim petition till its actual realization, with cost, however, has not entertained the entire claim of compensation of Rs. 5 lakhs. Hence, the present appeal praying for further additional amount of compensation to the tune of Rs. 3,36,500/- with interest and costs.

3. Considering the grounds raised in the appeal and the submissions made by learned advocate appearing for the appellant, this Court vide order dated 05.01.2016, had admitted the appeal. Learned advocate Mr. Sunil B. Parikh appearing on behalf of respondent No.2-Insurance Company have waived service notice of admission.

4. Learned advocate appearing for the appellant at the outset has submitted that the present appeal is confined to the limited issue of future loss of income being determined on the lower side. The attention of this Court was invited to the relevant facts of the case while submitting that at the time of accident the deceased was 35 years and was serving as a Journalist-Editor and his salary was Rs. 15,000/- to Rs. 20,000/-. In support, the documentary evidence in the nature of income tax returns filed by the claimant has been produced on record at Exhs. 46 and 47. Though the petitioner has argued based on such income tax returns of earning salary of Rs. 20,320/- per month and has pressed for future loss of income as Rs. 7,02,259/-, the Tribunal has taken note of the income tax return produced on record at Exh. 47 for the A.Y 2004-2005 which suggest rise in the income to Rs. 2,43,840/- as against the annual income of earlier assessment year produced on record at Exh. 46 wherein his income was indicated as Rs. 2,04,930/-.

5. Having noted the aforesaid rise in the annual income of the claimant after occurrence of the accident, the Tribunal has applied the principles laid down by the Hon’ble Supreme Court in the case of Rajkumar vs. Ajay Kumar and others reported in 2011 ACJ 246 (SC) and has drawn conclusion that there was no economic loss due to disability or injuries sustained by the claimant. The Tribunal has, therefore, refused to consider the prospective income of the deceased for the purpose of determination of future loss of income. Assailing the aforesaid findings and reasons assigned by the Tribunal, learned advocate had invited my attention to the nature of injuries sustained by the claimant. Reliance was placed on the disability certificate produced on record at Exh. 45. It was submitted that despite the doctor having opined permanent partial disability of 55% to the right lower limb, the parties by submitting pursis at Exh. 28 had consented to treat it as a case of 18% permanent disability of body as a whole. May that be so, the Tribunal ought to have taken into consideration the functional efficiency of the claimant being compromised. In order to substantiate his aforesaid submissions, learned advocate had placed relianc