A.H. Khan, J.
1. The short facts leading to this appeal are that Deshraj Singh was employed by the J. C. Mills Ltd., that on 4-1-56, while he was working in the Mills, a shuttle flew from the loom and struck him in the left eye. He applied on 26-4-56 for compensation under the Workmen's Compensation Act. The claim was resisted by the Mills on the ground that the workman already suffered from old corneal opacity in the left eye, which made him blind and that the injury by the shuttle did not cause the loss of sight, which was already impaired.
2. The Commissioner for Workmen's Compensation Mr. Srikishandas Shah held that the workman, was not blind before the accident and awarded Rs. 1470/- as compensation together with costs. Aggrieved by the order, the Mills has filed this appeal under Section 30(a) of Workmen's Compensation Act of 1923.
3. The points urged by the appellant are two;
First, that in the instant case there is no permanent partial disablement as described in Section 2(g) of the Workmen's Compensation Act of 1923 (hereinafter referred to as 'the Act').
Two, that in calculating the wages according to Section 5A of the Act, the Commissioner has added the wages for the period of leave to which he was entitled after working for one year.
4. With regard to the first point, it is contended that there was defect in the worker's eye which is technically known as corneal opacity and that the loss in the eye does not entitle the worker to compensation indicated in Schedule I of the Act. There is no trustworthy evidence on record to show the extent of defect from which the worker suffered before the present injury. None of the two Doctors, that have been produced in this case, saw the eye of the worker before it had been injured.
In the circumstances their statements about the nature of defect which existed before the injury are mere guesses. It is admitted that as a result of the injury one of the eyes had to be completely removed from the socket, but none of the Doctors examined the removed eye to ascertain the nature of the injury which is alleged to have existed prior to the accident. Since the fact is admitted that the eye had to be removed totally, I think the Commissioner was justified in holding that the injury to the eye has resulted in permanent partial disablement.
5. With regard to the second question, the judgment of the lower Court does not disclose the ground on which the wages during the period of leave have been added to the wages the worker has earned during the year.
6. It is admitted on both hands that the wages during one year amounted to Rs. 1130/1/-. It is said that after the worker has put in one year of work, he becomes entitled to annual leave with the wages according to Section 79 of the Factories Act. I have not followed the reasoning of the learned Commissioner as to why the wages of the annual leave should be added to the wages a worker earns during a year.
Section 79 of the Factories Act provides for annual leave with wages, which means that if a worker has completed a year's service, he can during the subsequent year go on leave without any deduction from the total amount of the wages to which he would be entitled in the course of the second year. This would make his wages for the second year amount to the same figure as that of the first year.
In other words when he goes out on leave for certain days, his wages during the period of leave shall not be deducted. Mr. Athawale has submitted that after becoming entitled to leave with wages, it is open to the worker either to take leave during the next year or to get the wages for the period of leave added to his total yearly income. But he has not been able to show according to what section of the Act this is possible.
7. Reliance has been placed upon the definition of the wages given in Clause (m) of Section 2 of the Act, which runs as follows:
'Wages' include any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment.''
8. It is contended that since 'wages' include privilege and other benefits therefore the wages during the annual leave should be added to the wages earned in the course of a year. Privilege and the benefits referred to above are like the dearness allowance or the facility of having free quarters. But I do not quite see how the annual leave with wages can be regarded as a privilege or benefit which it going to swell the wages. Annual leave with wages no doubt is a privilege but this privilege only means that no money shall be deducted from the wages when the worker is on annual leave. This privilege does not mean that there should be an accretion or addition to the wages of the next year.
9. In this view of the matter I am afraid the learned Commissioner was not justified in adding the wages of the period of the annual leave to the total wages one would earn in a year. If this amount of wages for annual leave is deducted from the amount calculated by the Commissioner, then both the parties agree that the compensation to which the worker is entitled would be Rs. 1260/-. I, therefore, hold that the worker is entitled to Rs. 1260/- and not Rs. 1470 as compensation for the injury be sustained.
10. For reasons stated above, I allow the appeal partly and modify the order of the Commissioner as stated above. Parties to bear their own costs.