JUDGMENT C.R. Sarma, J. 1. Heard Mr. S.M. Ali, learned Counsel appearing for the Appellant. None appears on behalf of the Respondents despite service of notice. 2. This appeal is directed against the judgment and award dated 23-9-2000 passed by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala in case No. T.S.(W.C) No. 29 of 1996. By the impugned judgment and order, the learned Commissioner, granted compensation of Rs. 1,22,472 with interest thereon @ Rs. 12 percent per annum with effect from 26-5-94 in favour of the claimant petitioners i.e. the Respondent No. 1 in this appeal payable by the Appellant-insurer. 3. The fact of the claimant's case is that on 26-5-94, while he was engaged as a driver of Truck No. TRL-2823 belonging to the Respondent No. 2 sustained injuries in respect of his eyes due to bursting of tyre of the Truck aforesaid. For the said injury, sustained by him in respect of his right eye, he was required to undergo operation as the said eye was affected by advance cataract. According to the claimant, he lost vision in respect of his right eye. The claimant preferred the claim case No. T.S(W.C) No. 29 of 1996 claiming compensation from the insurer of the said vehicle. The claim of the claimant was contested by the insurer i.e. the Appellant and the owner of the vehicle i.e. the Respondent No. 2. The learned Commissioner framed the following issued for disposal of the matter: (i) Was Krishna Kumar Dey a Workman under O.P. No. 1 on the date of alleged accident, as defined in Workman's Compensation Act ? (ii) Was the claimant-petitioner injured in an accident arising out of and in course of his employment under O.P. No. 1 ? (iii) Is the claimant-petitioner entitled to get any compensation under Workman's Compensation Act ? (iv) If so, what should be the quantum of compensation and who is liable to pay it ? 4. The claimant examined himself as PW 1 and two other witnesses including the Medical Officer under whom he obtained treatment. The owner of the vehicle examined himself as OPW No. 1. The learned Commissioner considering the evidence on record came to the finding that the claimant sustained injury in respect of his right eye requiring cataract operation and, thus, lost the vision of the said eye. The owner of the vehicle examined himself as OPW No. 1. The learned Commissioner considering the evidence on record came to the finding that the claimant sustained injury in respect of his right eye requiring cataract operation and, thus, lost the vision of the said eye. The learned Commissioner also arrived at the finding that the monthly income of the claimant was Rs. 1600/- per month and that his age at the time of incident was 50 years. Therefore, applying the factor 153.09 and taking 50 percent of his monthly income as the monthly wage, computed the compensation at Rs. 1,22,472/-. Aggrieved by the said computation of compensation by taking 50 percent of the wage, the insurer as Appellant has come up with this appeal contending that the learned Commissioner committed error in adopting the percentage of disability. 5. Mr. S.M. Ali, learned Counsel appearing for the Appellant referring to the item No. 25 of the Schedule I (Part-II) of the Workmen's Compensation Act,1923 has submitted that for the loss of one eye, the appropriate percentage of loss of earning capacity should have been 40 and that the learned Commissioner committed error by applying 50 percent instead of 40 percent loss of earning capacity. There is no dispute that as provided by item No. 25 at Schedule I aforesaid, the percentage of loss of earning capacity is 40 in respect of one eye, without complications of the other being normal. The learned Commissioner, relying on the evidence of the Medical Officer (PW 3) came to the finding that the right eye of the Petitioner suffered from advance cataract and that the operation was done in respect of the said eye. The claimant who deposed as PW 1 stated that he had undergone an operation at B.R. Ambedkar Hospital. In his evidence, he stated that after the operation, he recovered his eye sight to some extent and that he is not in a position to drive vehicle at night due to weakness of his eye sight. The Medical officer who examined the claimant deposed as PW 3. He stated that on 13-3-95, the claimant attended the Eye Department at B.R. Ambedkar with advance cataract in respect of his right eye for which he was operated upon. The Medical officer who examined the claimant deposed as PW 3. He stated that on 13-3-95, the claimant attended the Eye Department at B.R. Ambedkar with advance cataract in respect of his right eye for which he was operated upon. The Medical Officer further stated that without seeing the record, he was not in a position to say as to what extent the patient recovered in respect of his eye sight. He also opined that without seeing any record, it was not possible to say whether the cataract found in the eye was caused due to any injury. The Medical Officer further opined that cataract might be caused from the injury. From the evidence of the said Medical Officer, it appears that the claimant was required to be operated upon in respect of his right eye. There is no medical evidence to show that he suffered any injury in respect of his other eye. The learned Commissioner also came to the finding that the right eye of the claimant was operated upon. 6. In view of the above, it appears that the claimant could establish that he sustained injury requiring operation in respect of his right eye. In view of the above, as proved in item No. 25 of the Schedule aforesaid, the percentage of loss of earning capacity of the claimant should have been taken as 40 percent instead of 50 percent. The learned Commissioner did not mention any reason for taking 50 percent of the monthly wage of the claimant for calculating his compensation. 7. In view of the above, I am of the considered opinion, the learned Commissioner committed error by taking 50 percent of the monthly income of the claimant instead of taking 40 percent of the said income. Therefore, I am inclined to hold that the learned Commissioner misapplied the percentage of disability. Hence, I find sufficient merit in this appeal requiring interference. 8. Accordingly, the compensation awarded by the learned Commissioner is modified as follows: Monthly income (approximate) 40 % of 1600 = Rs. 640/-. As the age of the claimant was 50 years, the learned Commissioner rightly took the factor as 153.09. Therefore, the total compensation payable to the claimant would come to Rs. 640 X 153.09 = Rs. 97,977.60/- (Rupees ninetyseven thousand nine hundred seventyseven and sixty paise). No interference is made in respect of interest awarded by the learned Commissioner. 9. 640/-. As the age of the claimant was 50 years, the learned Commissioner rightly took the factor as 153.09. Therefore, the total compensation payable to the claimant would come to Rs. 640 X 153.09 = Rs. 97,977.60/- (Rupees ninetyseven thousand nine hundred seventyseven and sixty paise). No interference is made in respect of interest awarded by the learned Commissioner. 9. With the above modification, this appeal is disposed of. If the earlier amount awarded by the learned Commissioner has already been deposited by the Appellant, the balance amount after deducting the modified amount shall be returned to the Appellant.