BRIJ MOHAN SHARMA Vs. GURMAIL SINGH SAINI

JUDGEMENT

(1.) THE appeal is for enhancement of claim for compensation for a claimant, who had suffered amputation of four toes other than a big toe in one leg. He was a clerk in HUDA and the evidence was that from Kurukshetra, he had been later referred to the hospital at Ludhiana where for a fracture of the shaft femur, he had been conservatively treated by traction and hospitalised for a period of 53 days. He had continued his treatment and had to avail of 148 days' leave from his office. The Tribunal had assessed the compensation at Rs. 1,30,000 that included Rs. 5,000 towards special diet and transportation and Rs. 60,000 towards disability. The learned counsel contends that the transportation expenses had not been properly assessed. The evidence, according to him, was that he had spent Rs. 1,00,000 for transportation and special diet and that the visits subsequent to his hospitalisation on many days had caused expenses to the tune of Rs. 1,00,000.

(2.) WHILE the issue of assessment of compensation under non-pecuniary heads like pain and suffering, loss of earning power and loss of amenities could be subject to certain variations in view of the subjective character of assessments, pecuniary compensation must as far as possible be brought through appropriate evidence. A certain amount of conjecture could be possible for illiterate persons, who may not know the value of documentary proof, but I cannot take the same excuse for a person who is a clerk in HUDA. If he had spent Rs. 1,00,000 for transportation from Kurukshetra to Ludhiana, I would understand that he had made several visits to the hospital from Kurukshetra through taxis or through private vehicles where he should have incurred the expenses towards the fuel and driving charges. An amount as high as Rs. 1,00,000 cannot be incurred without documentary proof. If the Tribunal had assessed only Rs. 5,000 for special diet and transportation, the justification could only be that the claimant did not produce what was essential to substantiate his plea. I have no better evidence to make a higher assessment and also give the benefit of my conjecture for the assessment for this head of claim. For a person, who had been hospitalised for 53 days and who had a long period of treatment that prevented him from returning to his office for nearly 4 months, an assessment of compensation of merely Rs. 5,000 for pain and suffering seems inadequate. He had suffered amputation of four toes of the right foot and he also had a fracture of the shaft of femur that must have literally confined him to bed and for a fracture while I would normally provide for about Rs. 7,500, I will award Rs. 25,000 as compensation for pain and suffering for his long hospitalisation and confinement to bed. The assessment of Rs. 60,000 towards disability, I would understand as answering the issue of loss of amenities for a person, who had a stiffness of his knee, muscle weakness and a shortening of the lower limb by 1/2 inch as the disability certificate issued by the Medical Officer shows. I would, therefore, reassign the head of claim for compensation for disability towards the loss of amenities attendant to such disability.

(3.) THE doctor's certificate shows that the assessment of disability had been made under two heads: (i) for shortening of the limb and impairment of movements of knee by 35 per cent and the doctor has certified 22 per cent as the disability arising from the amputation of four toes in a leg. The assessment does not appear to have any basis as far as the amputation of toes is concerned for if the guidance for assessment of disability as prescribed by the Ministry of Law (OM No. 4-2/83 HW.III, dated 6.8.1986) is applied, it follows the same formula as prescribed under Workmen 's Compensation Act in respect of the privation of the organs. Under the Workmen 's Compensation Act, the loss of four toes of one foot excluding the great toe is assessed at 9 per cent. By no stretch of imagination could, therefore, the disability be assessed at 22 per cent. Although the earning capacity and disability are different, even if the loss of the toes must be taken to have resulted in 22 per cent loss of disability, I would apportion the loss of earning capacity at 9 per cent in the manner that Workmen's Compensation Act provides. The claimant was said to be earning Rs. 4,066. Total compensation is reassessed and tabulated as below: <IMG>JUDGEMENT_970_ACJ_2013.jpg</IMG>