Sanjay K. Agrawal, J.

1. This is an insurer's appeal under Section 30(a) of the Employee's Compensation Act, 1923 (for short "the Act of 1923") against the order dated 15.04.2011 passed by Commissioner, Workmen's Compensation-cum-Labour Court, Rajnandgaon (for short "the Commissioner"), in case No. 42/W.C.Act/2008/non-fatal, thereby granting the application for compensation filed by respondent No. 1/claimant. The facts in nutshell, necessary for adjudication of the appeals, are as under:

(1.1.) Respondent No. 1/claimant filed an application under Section 10 of the Act of 1923 stating, inter alia, that on 05.11.2007 while, he was working, under the employment of respondent No. 2, suffered injury in his left eye and also lost vision of that eye thereof. It was further pleaded that he is a Turner by profession, earning Rs. 4,100/- per month and was aged about 46 years on the date of accident. As a result of the loss of vision of one eye, he suffered loss of earning capacity to the extent of 80% and, therefore, claimed a sum of Rs. 3,27,258/- as loss of future income along with penalty and interest.

(1.2.) The appellant/Insurance Company filed its written statement alleging breach of terms of the policy of insurance and claimed exoneration from its liability to make payment of compensation, and also pleaded that the compensation claimed by respondent No. 1/claimant is on higher side.

(1.3.) The learned Commissioner, after appreciating the oral and documentary evidence, partly allowed the claimant's application holding that the claimant has suffered permanent disability i.e. loss of vision of left eye resulting into reduction of earning capacity to the extent of 70%; he was aged about 47 years on the date of accident and used to earn Rs. 3,100/- per month and is entitled for Rs. 2,12,317/- jointly and severally from the employer and appellant-Company and also imposed penalty of Rs. 15,000/- payable by employer and penal interest @ 7% per annum.

2. This appeal was admitted for hearing on 11.10.2011 on the following substantial question of law:

Whether the Commissioner for Workmen Compensation was justified in holding loss of earning capacity of respondent No. 1 as 70% ignoring the fact that injury sustained by him is scheduled injury prescribed in Schedule I, part II, item No. 25 of the Workmen Compensation Act?

3. Shri Sourabh Sharma, learned counsel appearing for the appellant would submit that the injury sustained by the respondent No. 1/claimant is a scheduled injury prescribed in Schedule I, part II, item No. 25 of the Act of 1923 and resultant loss of earning capacity according to said schedule would be only 40% and, therefore, learned Commissioner has committed a legal error in holding the loss of earning capacity of respondent No. 1 as 70% and, therefore, the amount of compensation be suitably reduced holding loss of earning capacity as 40%.

4. Per contra, Shri Santosh Yadu, learned counsel appearing for respondent No. 1 would submit that though the injury suffered by the claimant is scheduled injury but since respondent No. 1/claimant has become unfit to work as Turner, thus, the learned Commissioner has rightly taken loss of earning capacity to the extent of 70% and, therefore, the impugned order deserves to be upheld.

5. I have heard and considered the rival submissions and have carefully perused the record of the Commissioner.

6. Under the provisions of the Employee's Compensation Act, 1923, once it is proved by the workman:

(i) that he is a workman, and

(ii) that he has suffered injury by accident in the course of his employment,

The liability of the employer to pay compensation is established. If the injury received by the workman is a scheduled injury, the minimum amount of compensation which the workman would be entitled to claim would be commensurate with the deemed loss of earning capacity as indicated in the Schedule. In case where the workman received non-scheduled injury, he will have to show by leading evidence as t