Hon'ble BHAGWATI, J.—Challenge in this appeal is to the award dated 13th March, 1995, whereby the Commissioner, Workmen's Compensation Act, Alwar, decreed an amount of Rs. 24,000/- in favour of the respondent and against the appellant.

2. Heard learned counsel for the appellant and carefully perused the relevant material on record including the impugned award.

3. Learned counsel for the appellant canvassed that the accident took place on 4.4.1992 wherein the claimant, being a helper, lost one phalanx of his right hand index finger. Such disablement falls under the category of `permanent partial disablement' and the injury occurs at entry No. 29 in Part II of Schedule I of the Act. The claimant at the time of the accident was 45 years of age, for which the relevant factor is 169.44 as per Schedule IV and his monthly income was more than Rs. 1000/-. He further canvassed that entry No. 29 of Part II of Schedule I of the Workmen Compensation Act fixes the loss of earning capacity at 9% for loss of one phalanx of either finger. He further canvassed that Section 4(1)(c)(i) of the Act provides that in case of an injury specified in part II of Schedule I, such percentage of the compensation which would have been payable in case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury. He further canvassed that as per formula prescribed under Section 4(1)(c)(i) for computing the amount of compensation in case of permanent partial disablement, the amount of compensation comes to Rs. 50% x 1000 x 169.44 x 9% = Rs. 7624.80/-, whereas the learned Commissioner awarded an amount of Rs. 24,000/-, which is abysmally high and thus, the amount of compensation needs to be reduced and the impugned award passed by the learned Commissioner deserves to be modified. He has placed reliance on two judgments reported in 2007 ACJ 2004 & 1996 ACJ 98.

4. None is present for the respondent despite service.

5. Having ruminated over the submissions made by the learned counsel for the appellant and carefully scanned the relevant provisions of law, it is noticed that the claimant-respondent, being in the employment of appellant non claimant as a Helper lost one phalanx of index finger of his right hand which resultantly got amputated and he suffered 9% permanent loss of earning capacity as per the entry No. 29 in Part II of Schedule I of the Act. The learned Commissioner considered 10-15% permanent loss of earning capacity and having taken into consideration date of birth of the claimant, age, loss of earning capacity, salary, allowances and relevant factor, applied the formula as prescribed under Section 4(1)(b) of the Act and thus, reckoned the compensation to the tune of Rs. 12,708/-. The learned Commissioner also held that since the amount of compensation came to be Rs. 12,708/- and the law envisages an amount equal to 50% of the monthly wages of the injured workman multiplied by relevant factor or an amount of Rs. 24,000/-, whichever is more, the respondent claimant was entitled to claim Rs. 24,000/-. This has been impugned by the appellant relying upon the afore-stated judgments.

6. In the case of Deep Metal Industries vs. B.D. Gaikwad reported in 1996 ACJ 78, the High Court of Judicature at Bombay dealt with the same issue and observed as under:

"Section 4 of the Act provides the rule regarding payment of compensation. We are not concerned with Section 4(1)(a) which pertains to death and section 4(1)(b) which pertains to permanent total disablement. We are concerned with section 4(1)(c) which provides for permanent partial disablement resulting from the injury. The compensation payable in the case of an injury specified in Part II of Schedule I is such percentage of the compensation depending upon the loss of earning capacity out of the amount of compensation payable calculated under Section 4(1) (b) of the Act."

7. Similarly in the case of New India Assurance Co. Ltd. vs. T. Narasimha M

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