BALWINDER PAL SINGH Vs. HARJINDER SINGH

JUDGEMENT

(1.) THE appeal is by the claimant seeking for enhancement of compensation for injury suffered by claimant that resulted in amputation of leg above the knee. The assessment of disability had been made at 80 per cent and the Tribunal awarded a compensation of Rs. 2,00,000. The Tribunal assessed Rs. 1,40,000 as non - pecuniary loss and Rs. 60,000 as pecuniary loss. The pecuniary component was for medical expenses incurred and Rs. 1,40,000 must be taken as going towards pain and suffering, loss of amenities and loss of earning capacity.

(2.) IN this case the claimant was a wireless operator in the police department with the State of Punjab. His rank was equivalent to a constable and at the time when the evidence was given, he continued in service. The Tribunal found that he had not come by actual loss of his earnings since he was being continued in service and, therefore, did not make any separate provision for loss of earning capacity. The compensation was only seen as necessary for the inconvenience that he had suffered with amputation of leg and, therefore, an amount of Rs. 1,40,000 was determined as payable for non -pecuniary loss.

(3.) THE evidence makes it clear that although he continued in service and was drawing his salary, he encountered handicaps that definitely disabled him from working efficiently to earn promotion. A constable in service to be forced to opt for voluntary retirement itself is a signal as to how the injury had impacted his earning skills. It was not merely a physical disability but also a mental trauma for a person, who is hampered in his free mobility even within his own office. It is in this context that House of Lords considered the issue of how compensation would have to be assessed if a person is retained in service after he is disabled on account of accident. The House of Lords in Bale v. William Hunts and Sons Limited, (1912) AC 496, was considering the case of a workman, who was blinded in one eye. The defect was not visible and he was to have appearance as two -eyed man. He was retained in service but the House of Lords said that incapacity to work included inability to work. In other words, there is incapacity for work when a man has physical defect, which makes his earning skills unsaleable in any market reasonably accessible to him. This judgment was considered by a Division Bench of Madras High Court in Management of Sree Lalithambika Enterprises v. S. Kailasam, 1986 ACJ 1150 (Madras), where a claim for compensation under the Workmen's Compensation Act by a workman was resisted by the management stating that he was being retained in service at the same salary and, therefore, there had been no loss of earning capacity. The Division Bench cited the House of Lords and held that a person who may have suffered an injury may not come by an immediate loss if he is retained in the same employment and does not lose his job but his own saleability elsewhere as a fresh recruit to a new employer shall be surely a factor that had to be taken note of and that shall be a justification enough to provide compensation in such type of cases. The court also ruled as a matter of policy that an interpretation cannot be made as regards loss of earning capacity that can completely nullify the effect of a welfare legislation such as the Workmen's Compensation Act. A workman, who comes by any injury specified in Schedule I, could be defeated from claiming the benefit of assessment of cross of earning capacity if the employer were to come around to say that he was being retained in the same employment and, therefore, no loss of earning capacity had ensued. Such an interpretation would be wholly wrong. This court had an occasion to consider the same issue where the above two decisions were referred to in Jai Ram v. State of Harvana, F.A.O. No. 2618 of 1998; dated 11.2.2011.