Satish Chandra, J.
1. This appeal is at the instance of a workman. It is directed against an order registering the memorandum of agreement between the appellant and his employer, namely, the Northern Railway.
2. The appellant was working as a fireman-grade C, when on 21 October 1960 he met with an accident at Tapri railway station and received an injury to his left eye. He was given medical treatment. Later on he was examined by the divisional medical officer, New Delhi, who assessed the appellant's loss of earning capacity caused by the Injury to his left eye at 10 per cent. The appellant's vision of the left eye was only lessened and not completely lost. The appellant has admitted this fact in his statement. The railway administration transmitted to the Commissioner under the Workmen's Compensation Act, 1823, a memorandum of agreement arrived at between the appellant and the railway administration for registration. The appellant objected to the registration on the ground that it was obtained by misrepresentation and fraud. He also contended that he was entitled to compensation on the basis that the loss of the earning capacity was 30 per cent as laid down in Sch. I to the Workmen's Compensation Act.
3. The Commissioner found that the agreement was not final and the employee was not estopped from contesting it. He also found that on the evidence on the record it has been established that the appellant suffered a lessening of the vision of the left eye and that the loss of the earning capacity of the appellant was 10 per cent. On these findings he came to the conclusion that the appellant was entitled to a compensation of Rs. 490 which had already been paid to him. In the result he directed that the memorandum of agreement should be registered.
4. The workman feeling aggrieved has come to this Court in appeal. The only point urged for the appellant is that the Commissioner misconstrued the provisions of Section 4(1)(c) and of Sch. I to the Workmen's Compensation Act. There is no doubt that the Injury to the appellant has caused permanent partial disablement and is covered by Section 4(1)(c) of the Act. The dispute is confined to the applicability of Sub-clause (i) or (ii) of Sub-clause (c).
5. It is, therefore, necessary to read the same:
4. (1) Subject to the provisions of this Act the amount of compensation shall be as follows, namely:
(a) * * *(b) * * *(c) Where permanent partial disablement results from the injury-
(i) in the case of an injury specified in part II of Sch. I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that Injury, and
(ii) In the case of an Injury not specified in Sch. 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.
It is to be observed that In case of an Injury specified In part II of Sch. I, the compensation payable Is such percentage as is specified in that schedule against the mentioned Injury. In such case no evidence is relevant to establish the percentage of the loss of earning capacity caused by the Injury. Clause (ii) relates to injuries which are not specified at all in Sch. I. For such Injuries the loss of earning capacity has to be ascertained on evidence. So the only question requiring determination is whether the Injury suffered by the appellant in the present case, namely, lessening of vision of one eye, is specified in part II of Sch. I or not. Entries 25 and 26 of part II to Sch. I are relevant. They run as follows:
(25) Loss of one eye, without complications, the other being normal.
(26) Loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal.
For the appellant reliance was placed upon entry 26. It is urged that the appellant has Buffered loss of vision of one eye. The respondent, on the other hand, contends that the appellant has only suffered a lessening of the vision of one eye and has not 'lost' the vision. The question, therefore, is whether the word 'loss' in entry 26 means a complete or total loss of vision or it refers to a case of vision decreasing in degree. The note appended to Sch. I is material for the resolution of controversy. The note says:
Complete and permanent loss of the use of any limb or member referred to in this schedule shall be deemed to be the equivalent of the loss of that limb or member.
This note indicates that If the use of any limb or member is completely and permanently lost, it will, for the purposes of the schedule, be a 'loss' of that limb or member. Even if the limb or member itself la not physically lost, but if it becomes totally unusable, there Is its 'loss' under the schedule. An eye is a limb or member of human body. The explanatory note will apply to it. An eye is used for sight or vision. So, if the vision of an eye is completely and permanently lost, it will amount to the 'loss of an eye.' Such a case will fall under entry 25 because it provides for loss of an eye. Total loss of vision of an eye cannot as well be 'loss' of vision of an eye under entry 26, because then entry 26 will become a surplus age, a mere duplication of entry 25. Such a situation is clearly ruled out by the provisions of a different percentage of loss of earning capacity in the two cases. Entry 25 provides for a loss of 40 per cent. Entry 26 prescribes a loss of only 30 per cent. Obviously, entry 26 is Intended to deal with a less serious Injury than is covered by entry 25. Total loss of vision being covered by entry 25, 'loss of vision' in entry 26 will refer to a partial loss of vision. A lessening of the vision will, hence, fall under entry 26. Such an injury being mentioned in Sch. I, the case will be covered by Sub-clause (1) of Section 4(1)(c). The workman was, therefore, entitled to compensation at the statutory rate for 30 per cent loss in earning capacity. The appellant has been paid Rs. 490 at the rate of 10 per cent. It is undisputed that if the requisite percentage is 30, he will be entitled to an additional sum of Rs. 980.
6. In the result, the appeal is allowed. The order of- the Commissioner is set aside. The respondent shall pay to the appellant a sum of Rs. 980 as also the coats of this appeal.