- (1.) THE subject of lis: claim for injuries I. 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. 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 SCC 343provides 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 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 Kamboj Pankaj Kumar judgment of this court in Madan Lal Papneja Vs. State of Haryana and others, 2012 ACJ 1999. A Division Bench of the Kerala High Court in K alesh v Sudheer, 2011 ACJ 192 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;