SURESH CHAND Vs. E I C

JUDGEMENT

(1.) LIST revised. Heard Sri A.K. Sachan, learned counsel for the appellant. No one appears for the respondent despite the name being printed in the cause list. This appeal is under Section 82 of the Employees State Insurance Act directed against the order of the Employees Insurance Court, Kanpur, dated 22.09.1990. The appellant had suffered employment injury in left eye on 9.10.1982. He was medically examined and the Medical Board after examining him, found that his eye site stood diminished and as such assessed the loss to the extent of 10% of the earning capacity. Against the said order, the appellant preferred an appeal which has been decided by the impugned order and the loss of earning capacity of the appellant has been enhanced and determined to 15% and accordingly the order of the Medical Board has been modified. Still not satisfied by the order, the appellant has come up in this appeal. Sri A.K. Sachan, learned counsel for the appellant has argued that the injury suffered by the appellant is a schedule injury which has been prescribed under entry 32- A of Schedule -2 of the Act which provides that such an injury amounts to 30% loss of earning capacity. Therefore, the Medical Board as well as the Employees Insurance Court committed an error in holding the loss of earning capacity to be 10% and 15% respectively which is on the lower side. Undoubtedly, the injury sustained by the appellant in the left eye is a scheduled injury and is covered by entry 32-A of schedule-2 of the Act which reads as under:- " 32-A Loss of Partial vision of one eye Percentage of loss of earning capacity is 10%" However, the aforesaid loss of earning capacity to the extent of 10 % has been prescribed by the Amending Act No. 29 of 1989 w.e.f. 20.10.1989. In the instant case, the accident had taken place on 09.10.1982 prior to the aforesaid amendment and therefore the provision as stood on the date of the accident was to be applied. On the date of accident such injury amounted to a loss of 30% in the earning capacity. In support learned counsel for the appellant has placed reliance upon a Division Bench judgment of this Court in the case of Employees State Insurance Corporation Vs. Ameer Hasan reported in 1980 (41) FLR, 224. In the aforesaid decision, the Division Bench has ruled that partial loss of vision of one eye is covered by the schedule and has upheld the loss of earning capacity to the extent of 30%. In view of the aforesaid decision and the facts and circumstances of the case, the court below and the Medical Board have erred in law in restricting the claim of loss of earning capacity of the appellant to the extent of 10% and15% respectively. It ought to have been 30% as prescribed under the unamended schedule as on the date of accident. Accordingly, appeal succeeds and is allowed. The order of the court below stands further modified and the appellant is awarded 30% loss of earning capacity.