K.KANNAN, J. - (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. The manner of assessment of compensation by the Tribunal is grossly inadequate and improper. Since the petitioner was present in court, I was of the view that 1; is own evidence on his present status could also be obtained to do complete justice. I, therefore, invoked the power under section 165 of the Indian Evidence Act and examined him. Learned counsel for the insurance company availed himself of the right of cross -examination. The evidence given by the witness has brought out the following facts: That the accident had taken place on 17.1.1993 and he continued in service in the same post as a constable up to 31.12.2004. That he had applied for voluntary retirement after completing 15 years of service and secured to himself the benefits attendant on such premature retirement. It was elicited in cross -examination by the counsel appearing on behalf of the insurance company that he was receiving a pension of Rs. 6,000 per month. It was also brought out in evidence that even during the time when he continued in service subsequent to the impairment, he could not effectively discharge his duties since his work involved mobility within office to carry the message received in the Wireless Service Department to higher officials. During the said period, the Signal Officer had objected to his inability to move from one room to another and subsequently was also served with the order of transfer but on his own request expressing difficulty, the order of transfer was cancelled and he continued in the same post as constable without securing any promotion. He thus explained that he decided to seek for voluntary retirement only on account of difficulties, which he was encountering in carrying out his official duties.
(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.;