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1. The appellant has challenged the Award of the Claims Tribunal whereby compensation of `1,55,000/- has been awarded to him. The appellant seeks enhancement of the award amount.

2. The accident dated 27th April, 1993 resulted in grievous injuries to the appellant. The appellant and his wife were travelling in bus No.DL-1P-2213. The appellant was standing near the front gate. The bus driver abruptly applied the brakes due to which the passengers standing in the bus including the appellant and his wife fell down. The appellant fell out of the front gate of the bus and his right foot was crushed under the wheels. The appellant suffered grievous injuries on the right foot, fracture on left femur, injury on knee, right hand, left shoulder and other injuries all over the body. The appellant was initially taken to Hindu Rao Hospital from where he was shifted to Batra Hospital. The appellant remained under treatment at Batra Hospital from 27th April, 1993 to 11th June, 1993. The right forefoot of the appellant was amputated and skin-grafting was done after healing of the wound.

The appellant proved the MLC - Ex.PW2/A prepared at Hindu Rao Hospital where he remained for 4-5 hours on 27th April, 1993.

The appellant was, thereafter, taken to Batra Hospital where he remained for one and a half months up to 11th June, 1993 and the mid front portion of the right feet was amputated. A rod was inserted in the left leg which had got fractured and skin grafting was done there. The discharge summary of the Batra Hospital is Ex.PW2/2. The appellant could not sit, walk or stand after discharge from the hospital and remained on complete bed rest for a long time. The admission card of the Batra Hospital and the OPD card have been proved as Ex.PW2/3 to Ex.PW2/7. The appellant was again admitted in the hospital for removal of the rod by surgery from 4th November, 1993 to 9th November, 1993, the discharge summary in respect whereof is Ex.PW2/8. The disability of the appellant has been assessed as 60% vide Disability certificate-Ex.PW2/9. The appellant made 16 visits to the hospital incurring an expenditure of `400/- per visit. The appellant proved the salary certificate - Ex.PW2/10 and the leave of 150 days by leave certificate - Ex.PW2/11. The appellant claimed to have spent more than `1,00,000/- on diet, conveyance and medicine. The appellant also deposed that he could not travel by public transport and had to travel by three-wheeler or taxi for which he had spent `1,200/- per month. The appellant also spent `50/- to `60/- per day on special diet. The appellant‟s wife also took leave to look after her husband. The FIR and site plan were proved as Ex.PW2/17 and Ex.PW2/18.

c) Traumatic and non-traumatic leisions

14. Cervical spine fractures are assessed on the basis of evaluation of vertebral compressions, fragmentation, involvement of posterior elements, nerve root involvement of posterior elements and moderate neck rigidity. They are assessed by X ray examination and treated surgically. Cervical inter- vertebral disc disorders, thoracic and dorso-lumbar spine fractures resulting in acute pain, paraplegia, vertebral compression resulting in severe pain, neurogenic low back disc injuries resulting in severe pain are assessed on a scale of 0 to 100%. Without the accompaniment of any compression, fractures or leisions, there could be persistent muscle spasm, stiffness of spine with mild, moderate to severe radiological changes are assessed in the range of 0 to 30% .

b) Translating disability into loss of earning power

16. All injuries and assessments of disability do not impact the earning capacity [Orissa State Road Transport Corporation v. Bhanu Prakash Joshi-(1994) 1 ACC 467 (Ori); New India Insurance Company Ltd v. Rajauna-(1996) 1 TAC 149 (Kant); Balaiah (T.) v. Abdul Majeed-AIR 1994 AP 354]; nor in a similar way. The disability has to be seen in the context of the particular occupation or calling that the victim is engaged in. For instance, a mal-union of fracture in the lower limb and stiffness at the knee for a professional driver of motor vehicle may completely make him unfit to be a driver. In Oriental Insurance Company Limited v. Koti Koti Reddy-2000(2) LLJ 552 (AP), the injuries caused to the claimant were on the forehead and right leg, particularly at joint and foot. The permanent disability was assessed at 30% by the doctor and due to calcanian fracture, it was in evidence that he could not work as driver. The WC Commissioner assessed the loss of earning capacity as 100% and the HC upheld the assessment. A deformity of the hand could affect a carpenter differently than how it may be irrelevant for, say, a telephone operator. In Pratap Narain Singh Deo v. Srinvas Sabata- AIR 1976 SC 222, an amputation of the arm of a carpenter was taken to result in 100% loss of earning capacity; In Sadasihiv Krishan Adke v. M/s Time Traders- 1992(1) LLJ 877, a coolie lost his leg. The injury to his leg resulted in his walking with crutches and the Court assessed the loss of earning capacity to be 100%. The attempt at the trial shall always be to elicit how the particular percentage of disability has affected the job that the person was doing and if not suitable for the same job, to what other type of employment that he or she is fit for, in the changed circumstances and what is likely to be the loss of income. With the passing of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, a person may continue in the same employment, notwithstanding such disability, the ascertainment of loss of earning capacity will still be relevant to know the employability of the person in open market with the particular disability. The continuance of employment despite the injury may not itself dis-entitle the person from claiming compensation. Posing the question what such injury results, the Madras High Court said in The Management of Sree Lalithambika Enterprises, Salem v. S. Kailasam- 1 988 (1) LLJ 63 that the employer may continue an injured person in employment and deny that any loss of earning capacity has resulted in spite of privation of an organ. This, the court said, could not be supported and cannot be the intendment of the WC Act . To the same effect, see Executive Engineer, PWD, Udaipur v. Narain Lal-(1977) 2 LLN 415, 1977 LIC 1827 (Raj). It must be noticed both the Workmen‟s Compensation Act and the MV Act use the expression loss of earning capacity differently from disability per se and without making reference to the claimant‟s evidence and the expert opinion of a doctor, it will be arbitrary to simply take the % of disability as % of loss of earning capacity. If a Tribunal assesses compensation at a fixed sum for every %of disability, it will result in overlapping of claims if assessment of loss of earning capacity is independently assessed. There are certain recent decisions of the Supreme Court itself [Arvind Kumar Mishra v. New India Assurance Co Ltd and another C.A.No.5510 of 2005 dated Sep.29, 2010; Yadav Kumar v. The Divisional Manager, National Insurance Co. Ltd & another C.A.No.7223 of 2010, dated Aug.31, 2010], where the % of disability assessed has been taken as synonymous with % of loss of earning power, but it must be assumed that the court took the value of % of disability to be the same as % of earning power, having regard to the special facts and circumstances. When the loss of earning power and compensation are determined, it is not necessary to make any deduction for personal expenses, as we do, for determining dependency for claimants in fatal accidents. The reason is obvious; the claimant is alive to receive the whole loss of income in injury cases and this principle has also been recognized in Oriental Insurance Co Ltd. v. Ram Prasad-(2009) 2 SCC 712.