The judgment establishes the importance of assessing compensation for non-pecuniary and pecuniary heads, considering the impact of disability on earning capacity, and applying statutory provisions for determination of loss of earning capacity.

K. KANNAN, J.

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 hospitalized for a period of 53 days. He had continued in his treatment and had to avail to 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 the 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 lakh towards transportation and special diet and that the visits subsequent to his hospitalization on many days had caused expenses to the tune of Rs. 1 lakh.

2. While the issue of assessment of compensation for 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 lakh for transportation from Kurukshetra to Ludhiana, I would understand that he had availed of 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 lakh cannot be incurred without documentary proof. If the Tribunal had assessed only Rs. 5,000/- as going towards 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 hospitalized 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 an 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 hospitalization 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 = inch as the disability certificate issued by the Medical Officer shows. I would, therefore, reassign the head of claim for compensation for disability as going towards the loss of amenities attendant to such disability.

3. The loss of earning capacity is invariably assessed in the context of how the disability impacts the earning skills. If it is merely an issue of a fracture or mal-union where the injured himself continues in the same employment, an assessment for loss of earning capacity need not be separately provided, particularly when an assessment is separately made for loss of amenities resulting from such disability. However, if there is a privation of organ, then there is a statutory basis for determination of loss of earning capacity. This has been provided under the provisions of the Workmen's Compensation Act and they are also incorpora