1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.772 OF 2009 with C.A.NO.13303 OF 2008. The United India Insurance Company Ltd. Beed. - APPELLANT VERSUS 1) Bhaskar s/o Keshavrao Sontakke and another - RESPONDENTS ***** Mr.VR Mundada,Advocate for Appellant; Mr.RJ Nirmal, Adv.for Resp.No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 6th January, 2010. PER COURT : 1) Heard the Counsel appearing for the insurance company as also the counsel for original claimant and owner of the tractor. 2) The appellant/insurance company challenged the legality and validity of the order of the learned Commissioner, Workmen’s 2 Compensation, awarding Rs.3.93,246/- with interest at the rate of 9%, treating the disablement of the original claimant to be 100%, when in fact, the claimant has lost his one eye and there is partial weakness in another eye. According to the learned counsel, the assessment of 100% loss of earning is erroneous and the finding recorded by the learned Commissioner is even contrary to the statutory arrangement. 3) The factual matrix in the matter is not of much controversial. The question now revolves only to the extent of determining the disablement. Considering the evidence of Medical Officer and Schedule-I appended to the Workmen’s Compensation Act, 1923, particularly, Part-II of the said Schedule, the injury or loss of one eye is the percentage of permanent disablement to the extent of 40%. However, since the Medical Officer, who has examined the claimant, found that the disablement could be assessed to be 75%. There is no hitch in accepting the said statement 3 of the medical officer. In this scenario of the matter, considering the peculiar pursuits, which the claimant was required to undertake, being a driver of the tractor, and now by virtue of impairment to his eyes, he has been refrained from following such pursuits, I find that the observation of the learned Commissioner as to 100% disablement does not flow in tune with the statute. Evaluating all the aspects, the disablement of the claimant can be considered as 75% and based on the same, the amount of compensation should have been Rs.2,92,828.50, the calculations of which are indeed given by the appellant/insurance company in paragraph 6 of the appeal memo. These calculations are not imaginary or at lower pedestal as they flow in tune with the standard of calculations provided under the statute as the factor of 218.47 was considered, which should have been the factor of 216.91 as the claimant was 25 years old at the relevant time. In the situation, the appeal is partly allowed as under : 4 4) Instead of Award of Rs.3,93,246/-, the Award of the learned Commissioner is corrected and made effective for an amount of Rs. 2,92,828.50, payable with the same interest @ 9% by both the original respondents. No other alteration in the order. The stay operating is vacated. The original claimant shall make an application to learned Commissioner in the Claim Petition for withdrawal of the amount. The balance amount be refunded to the appellant/insurance Company. 5) Civil Application disposed of. (K.U.CHANDIWAL) JUDGE bdv/fa772.09