Basheer, J:

The short question that arises for consideration in this appeal is whether loss of vision in one eye of the driver of a transport vehicle can be reckoned as permanent total disablement as contemplated in Part I Schedule I of the Workmens' Compensation Act, 1923.

2. Appellant-Insurance Company had admittedly issued a policy cover in respect of the goods vehicle in which the respondent herein was employed as a driver. The vehicle in question had been converted as a tanker to carry inflammable and other hazardous materials. On the ill fated day, the respondent was engaged as the driver in the tanker lorry by its owner V.B.Gopinathan who was arrayed as opposite party No.1 in the claim petition before the Commissioner for Workmens' Compensation, Ernakulam. Sulphuric acid was brought in the tanker lorry to be unloaded at Fertilisers and Chemicals Travancore Ltd. (FACT). While the sulphuric acid was being unloaded, a few drops of the acid fell into the eyes of the respondent/ claimant, resulting in severe burn injuries. It is on record that ultimately respondent lost vision in his left eye. Respondent filed the claim petition before the Commissioner seeking compensation from the owner and insurer of the vehicle , as provided under the Act.

3. The claim was resisted by the appellant contending, inter alia, that there was no employer-employee relationship between the claimant and the insured/owner of the vehicle and that the injury was not caused in the course of employment. However it was admitted by the appellant-Insurance Company that the vehicle was covered under a valid insurance policy at the time of the accident.

4. The claimant was examined before the Commissioner as AW.1 and the owner of the vehicle (opposite party No.1) was examined as DW.1. Exts.A1 to A4 were marked on the side of the claimant and Exts.D1 to D3 on the side of the opposite party.

5. The Commissioner held that the mishap occurred in the course of employment of the claimant as a driver. While considering the quantum of compensation payable to the claimant the Commissioner noticed that the claimant being a driver by profession he had lost sight in his left eye totally and that thereby he had become disabled permanently to continue his avocation in life. The Commissioner therefore assessed the loss of earning capacity of the claimant as 100%. The monthly earning of the claimant was reckoned as Rs.3,500/- and applying the relevant multiplier the total compensation payable to the claimant was calculated as Rs.4,32,495/-. The appellant Insurance Company was directed to pay the said amount to the claimant with 12% interest.

6. It is contended by the learned senior counsel who appears for the appellant that the Commissioner committed serious illegality and irregularity in reckoning the disability of the claimant as 100% though the Medical Board in Ext.A1 certificate had assessed his disability as 40%. Learned senior counsel further submits that there is no rhyme or reason to ignore and overlook the report of the Medical Board which consisted of qualified Medical Practitioners who had expertise in the subject concerned. It is further contended by him that even assuming the claimant may not be in a position to drive a tanker lorry or such other heavy vehicle, his loss of earning capacity could not have been fixed as 100%. According to the appellant this is not a case of total disablement, since loss of vision in one eye will not incapacitate him for "all work", which he might have been capable to perform at the time of the accident.

7. The Commissioner has of course assessed the disability as 100%, keeping in view the relevant entry contained in Schedule I of the Act. Item No.4 in the above schedule is extracted hereunder:

Sl.No.

Description of Injury

Percentage of loss of earning capacity

1

2

3

4

Loss of sight to such an extent as to render the claimant unable to perform any work for which eye- sight is essential.

100

8. Undoubtedly