Calcutta Licensed Measurers Bengal ... vs Md. Hossain on 29 November, 1968
9. According to Mr. Banik, the law is now well settled. Loss of income is one thing and loss of earning capacity is another and the two cannot be equated. It is possible that even after having sustained serious injury one may continue to earn at the same level or be retained by the employer whether on sympathy or otherwise. But that is not the real test. The principle is whether the victim is capable of undertaking all possible jobs as he or she was before accident. In other words, whether the saleability of the services ordinarily rendered by the victim had been diminished. This principle of law has been discussed in a fairly old decision of this court rendered in the case of Calcutta Licensed Measurers v. Md. Hussain 1969 ACJ 92 (Calcutta). In this case, on facts it was found that after the accident a workman was receiving a higher salary as a measure of concession or of grace. In substance there was no loss of earnings, but factually it was found that his partial and permanent disablement was caused by the accident and it was such that it was not possible for him to perform the same work that he performed before the accident. Of course, this case was decided under the Workmen's Compensation Act, 1923 but the principle can very well be applied to the present case, where there is no statutory guidance for assessment of damages.