In cases of permanent partial disablement due to an injury not specified in Schedule I of the Workmen's Compensation Act, 1923, the compensation payable is proportionate to the loss of earning capacity permanently caused by the injury.

P. C. Pandit, J.

1. This is a first appeal filed by Bhagat Singh under Sec.30 of the Workmens compensation Act, 8 of 1923 (hereinafter refer red to as the Act) against the order of the learned Senior Subordinate Judge, Hoshiarpur, who was acting as the commissioner under the Act, holding that the appellant was entitled to receive only Rs.980 as against Rs.4,900 claim ed by him as compensation.

2. On 23-2-1962, the appellant was work ing at a machine in connection with the excava tion work of the Bhakra-Nangal Project, when a big stone fell on him, which fractured his head, resulting in his permanent disability as a workman. He remained in Nangal Hospital from 23-2-1962 to 1-9-1962. Later on, he was declared permanently unfit and was discharged from service. At that time he was 28 years old and his monthly wages were Rs.105. His case was that he was entitled to receive compensation amounting to Rs.4,900 on account of permanent disablement as mentioned in Sec.4 (1) (c) (ii) read with Schedule IV of the act.

3. The position of the Punjab State, respondent, was that since the appellants permanent disability was only 20 per cent, as mentioned in the medical certificate, he was entitled to 20 per cent of the compensation payable for permanent total disablement, which came to Rs.980.

4. The learned Commissioner came to the conclusion that medical report, Ex. P-1, showed that the permanent disability of the appellant was only 20 per cent and not total. There was no evidence to show that this medical report was in any way wrong. That being so, accord ing to the learned Commissioner, the permanent disability was 20 per cent and not total. Under Sec.4 (1) (c) read with schedule IV of the Act, the appellant was, therefore, entitled to 20 per cent of the compensation payable for permanent total disablement, that is, Rs.980.

5. Learned counsel for the appellant submitted that the Commissioner had misinterpreted the provisions of Sec.4 (1) (c) and Schedule IV of the Act. According to the medical report, it was true that his clients permanent disability was mentioned as 20 per cent, but it was further stated therein that he was unfit for duty. He was, as a matter of fact, discharged from ser vice. Under these circumstances, his loss of earning capacity was 100 per cent and he was, therefore, entitled to the full compensation pay able in the case of permanent total disablement, that is, Rs.4,900.

6. The facts are not disputed, namely, that it was a case of permanent partial disablement; that the appellant was earning Rs.105 per month; that the Doctor had stated that his permanent disability was 20 per cent, but he was declared to be unfit for duty; and that he was discharged from service. It is common ground that if it was a case of permanent total disablement, the appellant would have got rs.4,900. It is also not controverted that the injury, which the appellant received, is not specified in Schedule I of the Act. The question then arises that under these circumstances, is the appellant entitled to the total amount of Rs.4,900, as contended by him, or he can claim only 20 per cent of the same, as is the position of the Punjab State This case is, admit tedly, covered by the provisions of sec. 4 (1) (c) (ii), which are as follows:-

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"sec. 4. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

* * * * * * * * (c) Where permanent partial disablement results from the injury-* * * * * * * * (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity permanently caused by the injury;"

* * * * * * * * a plain reading of these provisions will show that where a permanent partial disablement results from an injury which is not specified in Schedule I, then in the case of that injured person, the amount of compensation would be the sum payable in the case of per