The court affirmed that loss of earning capacity due to a scheduled injury can exceed statutory minimums if sufficient evidence shows greater impact on the claimant's ability to work.

1. This is an insurer's appeal under S.30 (1) (a) of the Employee's Compensation Act , 1923 (for short 'the Act of 1923') against the order dated 15.4.2011 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 the claimant - respondent No. 1.

2. The facts in nutshell, necessary for adjudication of the appeal, are as under:
2.1. Claimant - respondent No. 1 filed an application under S.10 of the Act of 1923 stating, inter alia, that on 5.11.2007 while he was working under the employment of respondent No. 2, he suffered injury in his left eye and also lost vision of that eye. 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 per cent and, therefore, claimed a sum of Rs. 3,27,258 as loss of future income along with penalty and interest.
2.2. 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 claimant - respondent No. 1 is on higher side.
2.3. 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 per cent, 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 insurance company and also imposed penalty of Rs. 15,000 payable by employer and penal interest at the rate of 7 per cent per annum.

3. This appeal was admitted for hearing on 11.10.2011 on the following substantial question of law:
"Whether the Commissioner for Workmen's Compensation was justified in holding loss of earning capacity of respondent No. 1 as 70 per cent ignoring the fact that injury sustained by him is scheduled injury prescribed in Schedule I, Part II, serial No. 25 of the Workmen's Compensation Act?"

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

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

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

7. 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