The assessment of compensation for non-pecuniary damages is directly related to the assessment of compensation for loss in future earnings, and the impact of permanent disability on the earning capacity of the injured is crucial in determining the compensation for non-pecuniary damages.

Suresh Kait, J.

CM No.7040/2006(delay)

For the reasons enumerated in the application, the delay in filing the appeal is condoned.

Application stands disposed of. MAC.A. 418/2006

1. Instant appeal has been preferred against the impugned award dated 11.11.2005 passed by the ld. Tribunal whereby an amount of Rs.7,45,615/-was awarded by the ld. Tribunal with interest @ 7.5% per annum from the date of filing of the petition till the date of payment.

2. Counsel for the appellant has argued that vide the aforesaid impugned award, the ld. Tribunal has awarded only Rs.20,000/-for loss of amenities; and Rs.10,000/- for pain and sufferings. He submits that the appellant was having 65% disability on right leg due to which, the said leg was amputed.

3. Ld. Counsel further submitted that though he was working as a labourer, ld. Tribunal considered the functional disability of 100%, however not granted sufficient amount for loss of amenities, pain and sufferings.

4. Ld. Counsel further submitted that the accident took place in 2001 and the award was passed in 2005. He further submitted that at the time of accident, appellant was 22 years old and no amount was granted for disfigurement and loss of marriage prospects.

5. On the other hand, ld. Counsel appearing on behalf of the respondent insurance company submitted that the Disability Board assessed the disability of the appellant as 65% whereas ld. Tribunal has considered 100% functional disability, thus, the compensation granted to the appellant are on the higher side.

6. Ld. Counsel further submitted that monthly income of the appellant was considered as per the minimum wages applicable at the time of accident and keeping in view the age of the appellant 50% compensation towards future prospects was also granted.

7. He further submitted that ld. Tribunal has considered all aspects on higher side, therefore appellant is not entitled to get any compensation towards loss of amenities, pain and sufferings.

8. As regards the compensation for disfigurement and loss of marriage prospects, ld. Counsel has argued that ld. Tribunal has considered 100% disability, therefore, in these heads also, he is not entitled to get any compensation.

9. I have heard ld counsel for both the parties.

10. The appellant met with an accident at the age of 22 and sustained grievous injury which resulted into amputation of right leg above knee. Medical Board has examined and assessed the disability of the appellant. As per the certificate issued by the Medical Board the permanent disability has been ascertained as 65% in relation to right lower limb.

11. Importantly, the assessment of compensation in respect of permanent disability is based on the avocation or profession that had been carried out by the injured, prior to the accident. The aforesaid aspect is an important factor for assessing the functional disability. It is pertinent to note that the appellant was working as Hand Cart Puller. Rightly, in order to assess the functional disability, the ld Tribunal has considered the impact and effect of the disability on the earning capacity of the injured. Thus, the ld Tribunal has assessed the functional disability of the appellant as 100%. Accordingly, the ld Tribunal has passed an award on account of following heads:-

12. Appellant is seeking enhancement of compensation on account of loss of amenities of life, pain and suffering which falls under the head of non– pecuniary damages. Therefore, the sole point to be considered whether the appellant/injured is entitled to enhancement of compensation on account of non–pecuniary damages. The assessment of compensation on account of loss of amenities of life, pain and suffering is directly related to the assessment of compensation on account of loss in future earnings. In this context, it is significant to note the observations of the Apex Court in Raj Kumar Vs. Ajay Kumar (2011) 1 SCC 343:-

“10. Ascertainment of the effect of the permanent disability on the a