JUDGMENT Mr. K. Kannan J.:- I. The subject of lis: claim for injuries 1. The appeal is for enhancement of compensation for injuries suffered in a motor accident on 20.09.1994. The appellant was on duty on Haryana Roadways bus as driver. The accident was the result of collision between the bus and a truck that came from the opposite direction. The driver suffered grievous injuries as also some of the passengers who were travelling in the bus. The Tribunal assessed a compensation of Rs. 87,000/- under various heads. There was evidence to the effect that the claimant had prolonged treatment from 20.09.1994 to 06.01.1995 during which period he had been operated upon four times. He gave evidence to the effect that he spent about Rs. 50,000/- and produced bills therefor. He had gangrene in his foot at the site of injury and therefore, he had to undergo three surgeries to secure a full correction of his leg and obtain appropriate skin grafting to help healthy skin care. There was also evidence that he had been taking physiotherapy for gaining strength in his leg. II. Search for surer tools for determination of compensation for injuries a. The pecuniary heads, the easier part – the need to collect relevant materials 2. While we have come by a definite scales of compensation for death with reference to the manner of assessment of income with provisions of increase of salary and the deductions to be made for personal expenses and the multiplier to be adopted with variance in the recent years only with reference to the compensation payable for loss of consortium, loss of love and affection and loss to estate, the assessment of compensation for injuries are by and large arbitrary and follow no objective criteria. When the Tribunal makes an appraisal for compensation, it should take into account all the following details: (i) age; (ii) employment/avocation and income; (iii) period of hospitalisation and details such as (a) cost of medicines; (b) hospitalisation charges, including consultation charges, room rent, etc; (c) attendant charges; (d) special diet and (e) expenses for future hospitalisation and treatment, including physiotherapy; (iv) nature of injuries, such as abrasions, cut injuries, crush injuries, fractures; (v) loss of income during the period of treatment and (vi) transportation. While collecting the details, the following may be borne in mind. While collecting the details, the following may be borne in mind. It shall detail the period of hospitalization as inpatient in hospital and the period of domiciliary rest and recuperation; i.e., when the patient is still advised full bed rest at home when he/she cannot resume duty and carry on the normal activities for living. This is essential for determination of loss of income, which is a distinct head. Medical bills are also to be seen as an item of expenditure which can be proved with greater certainty by production of bills. It may not be necessary to secure the presence of a chemist to speak about the genuineness. The Tribunal can look for the appropriate prescriptions and the purchase of medicines that have been made to ascertain to itself that bills produced are genuine. If there is also a future medical expenditure that has to be incurred such as removal of implants, continuance of physiotherapy, periodical visits to be made in future or constant monitoring to prevent any further deterioration, appropriate medical evidence must be brought. It is most desirable that the doctor who his brought before the Court is also asked appropriate questions to elicit the above details. Transportation again is a head of claim where very poor evidence is brought. If the person must be compelled to travel by private car or a taxi, it is essential to at least give a distance and the likely charges that are incurred for even if there are no vouchers for payment of amounts to the taxi operator. It shall become possible for a Tribunal or appellate forum to make some assumption that has a basis to reality. (b) Non-pecuniary heads – translating in monetary terms 3. Amongst the non-pecuniary heads pain and suffering or loss of amenities due to disability have all obtained different approaches from various Courts. The judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar and others, [2011(1) Law Herald (SC) 644 : 2011(1) Law Herald (Acc.) 222 (SC)] : (2011) 1 SCC 343 provides a theoretical basis for the manner of assessment of compensation for injuries that brings out the distinction between the percentage of disability and the loss of earning capacity. The judgment of the Supreme Court in Raj Kumar Vs. Ajay Kumar and others, [2011(1) Law Herald (SC) 644 : 2011(1) Law Herald (Acc.) 222 (SC)] : (2011) 1 SCC 343 provides a theoretical basis for the manner of assessment of compensation for injuries that brings out the distinction between the percentage of disability and the loss of earning capacity. The judgment also brings out an illustration of how a disability percentage qua particular limb must ultimately be assessed qua the whole body in order that the compensation is rightfully assessed to determine the extent of disability that could rob a person of the amenities of life. There have been also several judgments which have spelt out the need for assessing compensation under the distinct heads provided under the Act. c. Disability assessment in percentage, what it means and its relevance 4. An injury is either temporary or permanent. At a base level, it causes pain and puts a person to suffering. The duration of pain or suffering determines whether it is temporary or permanent. Each part of the body that is injured retains the imprint of injury in the sense that it affects its functionality. If it results in fracture of bone, it takes time to heal; if there is mal-union of bones, it affects its functionality. If it causes wasting of muscles for pathological reasons or by disuse, it also affects the functionality of the part of the body. Injuries to brain and spine are sometimes dangerous and debilitating in the sense there is a gradual deterioration of disability. It might paralyse the body; it may affect the functioning of other organs also. Episodes of seizures could occur. A doctor who assesses the disability reports a percentage assessment depending on the disability quotient in relation to the normal functionality of the particular limb or muscle. This loss of functionality may therefore impact directly the earning skills; it may not. A theoretical understanding to the concept of disability and how the assessment is done is explained by a judgment of this court in Madan Lal Papneja Vs. State of Haryana and others, [2011(5) Law Herald (P&H) 229 : 2011(1) Law Herald (Acc.) 328] : 2012 ACJ 1999. A theoretical understanding to the concept of disability and how the assessment is done is explained by a judgment of this court in Madan Lal Papneja Vs. State of Haryana and others, [2011(5) Law Herald (P&H) 229 : 2011(1) Law Herald (Acc.) 328] : 2012 ACJ 1999. A Division Bench of the Kerala High Court in Kalesh v Sudheer 2011 ACJ 192 , ILR (2010) 1 Kerala 784, 2010(1) KLT 537 has suggested that in every case where there is a disability, Tribunal must invariably direct the claimant to be present personally for the Tribunal to observe disability and record its perception of disability in its own words in proceedings paper. As Tribunals are not themselves experts in ascertainment of disability, at least the alleged disability could be perceived and recorded faithfully made available in awards. This, the court observed would be a very valuable input to appreciate disability certificate. I am respectful agreement with the observations and highly commend this practice. (d) Understanding disability under three heads for compensation 5. Mere reference to percentage of disability cannot convey any meaning. It should be correlated to the actual injuries. It has three components: (i) It impairs functionality and causes loss normal amenities of life; restricts movements qnd diminishes happiness; (ii) It causes pain and suffering, which could be transitory or permanent and (iii) It might impact earning capacity. Disability would therefore be required to address compensation under three heads. B.Kothandapani v TNSTC (2011) 6 SCC 420 and K.Suresh v New India Assurance (2012) 12 SCC 274 . A provision for loss of earning capacity cannot do away with requirement of having to assess loss due to pain and suffering separately, as held by the Supreme Court in Kavita Vs. Deepak, [2012(5) Law Herald (SC) 3593] : 2012(8) SCC 604 . There have been ad hoc approaches to steam-roll disability compensation at arbitrary amounts for loss of amenities only by providing either for Rs. 1,000/- or Rs. 2000/- per percentage of disability. If the attempt were to secure homogenous approach then it suffers from a serious flaw in providing for Rs. 1,000/- or Rs. 2,000/- per percentage without minding whether the percentage assessed is qua a particular limb or for the whole body. 1,000/- or Rs. 2000/- per percentage of disability. If the attempt were to secure homogenous approach then it suffers from a serious flaw in providing for Rs. 1,000/- or Rs. 2,000/- per percentage without minding whether the percentage assessed is qua a particular limb or for the whole body. This must, therefore, remind the Tribunals to secure at all times when doctors give evidence whether the disability that assessed is qua a particular limb or for whole body. After all, if a straightforward provision for compensation for disability were to be made on the basis of percentage of disability, it has to be on a rational standard basis of providing for a particular sum for a whole body disability. 6. There was an attempt by this Court to standardize the scales of compensation for injury cases. In Madan Lal Papneja Vs. State of Haryana and others, [2011(5) Law Herald (P&H) 229 : 2011(1) Law Herald (Acc.) 328] : 2012 ACJ 1999, even a template was prepared for injuries to address all the heads of claim. The decision in Kalesh (supra) brings a more comprehensive proforma, which is in the nature of a fact sheet for both fatal accidents and injury cases. In Papneja, it was suggested that loss of amenities could be assessed at Rs. 1000 per percentage for whole body if accompanied with loss of earning capacity which could be assessed independently after assessing percentage of loss of earning capacity. Monetary compensation for pain and suffering was also suggested at Rs. 7500/- for each fracture of a bone. If it also required open surgical intervention, this Court suggested an additional amount of Rs. 5,000/- as the component of pain and suffering. If there was a loss of tooth, this Court has suggested that it should be at least Rs. 7500/- taking into account the cost of orthodontic replacement. From the time when the above decision was delivered to now, another three years have passed. The amounts suggested in the judgment were not immutable for all times to come. They were merely guidance for a Court to make appropriate reappraisal over a period of time. 7500/- taking into account the cost of orthodontic replacement. From the time when the above decision was delivered to now, another three years have passed. The amounts suggested in the judgment were not immutable for all times to come. They were merely guidance for a Court to make appropriate reappraisal over a period of time. Going by the present value of the money and higher amounts for cases of death by providing for higher sums for loss of consortium, love and affection and funeral expenses, I would suggest that as regards pain and suffering for each fracture suffered, there may be a compensation of Rs. 10,000/- and if there was a surgical intervention to reduce a fracture, there could be an additional amount of Rs. 7,500/-. For instance, for a single fracture in bone in the arm, we could provide for a compensation for pain and suffering at Rs. 10,000/- and if there are two bones in the arm that are broken, it could be Rs. 20,000/-. If the surgery is effected for an implant, apart from the surgical expenses including the cost of implant, the pain and suffering component could be Rs. 17,500/- for a single fracture or if there are two bones fractured Rs. 10,000+10,000+7500= Rs. 27,500/-. It may seem that we are drawing some scales of compensation without any rational basis. The amounts which are suggested are, however, on due consideration of how Schedule II has been prepared in the year 1994. The pain and suffering provided under Schedule II is bare Rs. 2500/-. I have taken note of the value of the money and how over a period of time, the amount which was suggested must be taken by making appropriate appreciation for the present value of money. Pain and suffering as well as loss of amenities for amputees could be higher, since the victim is made to cope with visible disability, great inconvenience, frustration and pain throughout the rest of live. Madanlal Papneja (supra) suggests the figures also. All this is an attempt to standardize the compensation regimes so that we obtain homogeneity in approaches of what is appropriate for non-pecuniary heads like pain and suffering or loss of amenities. Whenever a percentage of disability is assessed, it shall be converted in terms of a disability qua the whole body and could be provided for a compensation at the rate of Rs. Whenever a percentage of disability is assessed, it shall be converted in terms of a disability qua the whole body and could be provided for a compensation at the rate of Rs. 2,000/- per percentage (increased from Rs. 1000 already suggested). A fracture in the arm that results in no future disability would require to be compensated only for pain and suffering under the non-pecuniary head and the loss of amenities on a conservative scale for the limited period of temporary disability. If the fracture had resulted in mal-union that leads to consequence of any impairment of functionality of the arm, the percentage of disability as assessed, say, if it is 10% qua the whole body, then it could be Rs. 20,000/- towards loss of amenity. 7. If the mal-union has actually resulted in disabling the arm for the work for which the claimant is normally accustomed to do, it should be seen whether there is also any loss of earning capacity from the point of view of usual avocation of the claimant. For instance, a shop keeper where he has to do minimal accounting or a clerk in office that would require a long writing activity or a labourer in the fields that would require hands to be used, to each one of them a fracture and permanent disability assessed may not have the same effect on the income earning capacity. Some rough approximation must be made in terms of percentage of loss of earning capacity about how such difficulty would impair his earning skills. It may not necessarily be the same percentage of loss of earning capacity for all persons having the same percentage of disability. An attempt must be made to convert the percentage of disability into percentage of loss of earning capacity for the particular type of work. Mal-union of a bone in the arm for a person who is working in a office may cause some difficulties in the use of his arm but may not at all times affect his earning capacity in office. It may not be the same for a manual labourer. It would have an impact on his earning skills as well. To re-empahasise, the loss of earning capacity must be always seen with reference to the particular avocation that a person was doing. It may not be the same for a manual labourer. It would have an impact on his earning skills as well. To re-empahasise, the loss of earning capacity must be always seen with reference to the particular avocation that a person was doing. e. Schedule injury by privation of any organ as mentioned in WC Act, always compensate at the percentage of earning capacity 8. Make no mistake that a provision for loss of earning capacity ought not to be denied where the employee was continued to be engaged on the same employment, for any amputation case where a person suffers from any of the injuries enumerated in the Schedule under the Workmen’s Compensation Act. The decision is Madanlal Papneja (supra) again has clarified with reference to several decisions from India and abroad that the loss of earning capacity for privation of organs must always be provided, no matter that a person was employed in the same job and suffered no immediate loss of income. The raison d’être was provided through a reference to decisions that laid down that loss of earning capacity must be understood in the context of how a person with some disabilities would suffer his employability quotient in the open market, if he were to seek for employment afresh. As an illustration, a person who has suffered a loss of even in one eye and who has a disability assessed at 30% but continues in the same job shall be provided with compensation not only for loss of amenities in life by the disability but shall also be compensated for loss of earning capacity taking 30% percentage of loss on his annual earning, even if he is retained in the same job and does not suffer reduction in salary. The reason is, he cannot evenly compete with a person in open market with another person who has no such disability, making due allowance to reservation provisions under Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. It may be noticed that Schedule II under the Motor Vehicles Act and Schedule IV provided under the Workmen’s Compensation Act refer to percentage of earning capacity for various injuries listed out in the Schedule under the Workmen’s Compensation Act and it does not provide for loss of percentage of disability. It may be noticed that Schedule II under the Motor Vehicles Act and Schedule IV provided under the Workmen’s Compensation Act refer to percentage of earning capacity for various injuries listed out in the Schedule under the Workmen’s Compensation Act and it does not provide for loss of percentage of disability. It is important to remember the distinction between same, for in many cases we find that when a doctor assesses a percentage of disability, it is misunderstood as constituting of percentage of earning capacity and the multiplier is applied. We come by wrong illustrations of how a functional disability of, say, a hand where there is a fracture of ulna and wasting of the forearm, it could have serious impact as regards the ability to carry weight and all functions that would require strength of the arm. It might not cause a very serious disability as regards his ability to use the fingers nor other parts of the body. A disability component between the wrist and the elbow could be anywhere in the range of 0 to 30%. If the doctor, therefore, assesses the functional disability at say 20%, it ought not to be immediately taken that 20% is also the loss of earning capacity for calculating the compensation. This illustration is given only because it is seen a recurrent mistake in the approaches of several Tribunals while assessing compensation. IV. Importance of doctor’s evidence in injury cases 9. This brings us to what is so seriously lacking about medical evidence in Courts at the trial. A doctor does no more than merely produce a disability certificate with the statement that he had issued the disability certificate and the percentage of disability that he has assessed. It hardly gives any guidance to either the Tribunal or in appellate forums to understand the nature of injuries. A mere reference to percentage of disability can give no idea about the pain and suffering or how the particular disability could impact his earning skills, let alone inform about the loss of amenities. If the doctor gives medical terms to the nature of injuries suffered, it shall be absolutely essential that the Tribuna elicits from the same person the ordinary, usual words which are used and also how the particular injury could impact the claimant in performance of normal activities and activities at the usual avocation which the claimant was used to doing. If the doctor gives medical terms to the nature of injuries suffered, it shall be absolutely essential that the Tribuna elicits from the same person the ordinary, usual words which are used and also how the particular injury could impact the claimant in performance of normal activities and activities at the usual avocation which the claimant was used to doing. The value of the doctor’s evidence is seldom properly understood and in all injury cases, the best of evidence as regards each one of the heads which we have identified could approach objectivity only through a doctor’s evidence. It is possible to go through this exercise only if there is a trial. If there is no trial, the examination of the patient by the doctor in the presence of Lok Adalat or before the insurer who negotiates for a settlement will themselves secure what is appropriate and just. 10. If the parties have forced themselves to a position of fullfledged trial then it must be confined to cases where there was some difficulty in the assessment and it required a higher level of effort from a Tribunal to assess the compensation. It is simply inexplicable to allow for cases to drift into trial but still not fully take advantage of Court’s forensic abilities for assessing the actual disability, the loss of earning capacity and such like important components of compensation assessment. V. Illustration of poor quality of evidence 11. To refer to this case and illustrate as to how there has been a complete lapse to address the claim properly, I should only point out to the heads of claim that have been considered by the Tribunal. Here was a case where the claimant had a complaint of non-union of the lower tibia. He had to undergo four operations and all that we could see is that the Tribunal elicited that he had been taking treatment for about 3 months and 20 days and he required diet including juice, cheese etc. The Tribunal had assessed Rs. 11,000/- as compensation under this head. It is anybody’s case how arbitrary this assessment is. If he was hospitalized for as longer period as 3 months and 20 days, there was no reference to the hospital charges, none about the value of nursing services that should have been rendered and how special diet had to be provided for. 11,000/- as compensation under this head. It is anybody’s case how arbitrary this assessment is. If he was hospitalized for as longer period as 3 months and 20 days, there was no reference to the hospital charges, none about the value of nursing services that should have been rendered and how special diet had to be provided for. As regards the loss of income, he was a driver by profession and if he had been hospitalized and he had injuries that ultimately resulted in the disability of his foot and ankle, either the application of clutch or brake or even accelerator would require the senses of the foot and ankle with all functionalities such as flexion, sensation and range of movement in full play. There ought to have been evidence about whether he was able to resume duty as a driver or not. Since he was an employee in a Government organization there ought to have been evidence of whether his services were taken to some other department or retained as a driver. There ought to have been evidence of how such an alternative employment if provided under the same organization allowed for all the benefits which he enjoyed as a driver, say, travel batta or avenues of promotion. That ought to have really given the clue for the loss of income already suffered and the loss of earning capacity that it had caused. In this case even as regards the lack of amenities due to the fractures, there was evidence that gangrene had set in and therefore, he had to undergo skin grafting and several operations. The pain and suffering for each operation must be taken as something distinct. The 40% disability which was assessed which the doctor saying that he had disability of the foot and ankle must be brought not merely with reference to the fact that he had a disability to cope with for the rest of his life and he must also be provided with loss of earning capacity with the loss of amenities. In this case, I estimate the loss to be at least 20% for a driver who would have difficulty in use of his foot and ankle for application of brake, clutch or accelerator as the case may be and impacted his earning capacity. 12. In this case, I estimate the loss to be at least 20% for a driver who would have difficulty in use of his foot and ankle for application of brake, clutch or accelerator as the case may be and impacted his earning capacity. 12. I thought for a while whether the case should be remitted to the Tribunal for a reappraisal of all these but I have only dissuaded myself from such an exercise from the fact that the case is nearly two decades old and it will be futile to undertake such an exercise at this stage. If I am making some conjectures as regards any of these heads, it is not because it is the best thing to do but it has become the most exigent exercise at this length of time. The Tribunal shall not allow themselves such a lapse to take place. VI. Filling up details in the proforma 13. The various heads of compensation would be as under:- ----------------------------------------------------------------------------------------------------------------------------------------- INJURY CASE ----------------------------------------------------------------------------------------------------------------------------------------- Age 27 years Period of Hospitalization 20.09.94 to 06.01.1994 108 days Occupation Driver, Haryana Roadways and income Rs.4000 ----------------------------------------------------------------------------------------------------------------------------------------- Heads of claim Tribunal High Court Sl. No. Amount (Rs.) Amount (Rs.) ----------------------------------------------------------------------------------------------------------------------------------------- 1 Loss of income 10,000 10,000 2 Medical expenses (i) Medicines 16,000 16,000 (ii) Hospital Charges 5000 (iii) Attendant Charges 5000 (iv) Special Diet 5000 (v) Future medical expenses - 3 Transport 5000 4 Pain & Suffering @ Rs. 10000 per 50,000 fracture + Rs. 7500 per surgery 5 Loss of amenity for 20% disability 40,000 qua whole body (40% qua limb), as assessed by the doctor 6 Loss of earning capacity 20% Income 4000 Multiplier 17 Future loss of income (20% X 4000 X 12 X17) 1,63,200 7 Reduction in life expectancy - 8 Loss of prospect of marriage - 9 Loss due to disfugurement - ----------------------------------------------------------------------------------------------------------------------------------------- 10 Total 87,000 2,99,200 ----------------------------------------------------------------------------------------------------------------------------------------- VII. Disposition 14. The total compensation payable shall be Rs. 2,99,200/-. The amount in excess over what has already been provided by the Tribunal shall also attract simple interest @7.5% p.a. from the date of petition till the date of payment. The award passed by the Tribunal stands modified and the appeal is allowed to the above extent. ---------0.B.S.0------------