Civil Appeal No 1536 of 1970
Appeal by special leave from the judgment and order dated the 10th November 1969 of the Orissa High Court at Cuttack in OJCs
No 877 of 1969
Santosh Chatterjee and G section Chatterjee for the Appellant
The Judgment of the Court was delivered by SHINGHAL J
This appeal by special leave is by Pratap Narain Singh Deo who is the proprietor of two cinema halls in Jeypore district Koraput Orissa
It is not in dispute that Srinivas Sabata respondent No 1 hereinafter referred to as the respondent was working as a carpenter for doing some ornamental work in a cinema hall of the appellant on July 6 1968 when he fell down and suffered injuries resulting in the amputation of his left arm from the elbow
He served a notice on the appellant dated August 11 1968 demanding payment of compensation as his regular employee
The appellant sent a reply dated August 21 1968 stating that the respondent was a casual contractor and that the accident had taken place solely because of his own negligence
The respondent then made a personal approach for obtaining the compensation but to no avail
He therefore made an application to the Commissioner for Workmen s Compensation respondent No 2 stating that he was a regular employee of the appellant his wages were Rs 120 per mensem he had suffered the injury in the course of his employment and was entitled to compensation under the  hereinafter referred to as the Act
Notice of the application was served on the appellant on October 10 1968 calling upon him to show cause why penalty to the extent of 50 percent and interest at 6 percent per annum should not be imposed on him under section 4A of the Act on the amount of compensation payable by him because of the default in making the payment of the compensation
The appellant contested the respondents  claim on the grounds mentioned above and on the further ground that respondent No 2 had no jurisdiction to entertain and adjudicate on the claim
He filed a memorandum of agreement on April 10 1969 accepting the liability to pay compensation for a sum which was found by the Commissioner to be so grossly inadequate that he refused to register it
The Commissioner held in his order dated May 6 1969 that the injury had resulted in the amputation of the left arm of the respondent above the elbow
He held further that the respondent was a carpenter by profession and by loss of his left hand above the elbow he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only
 He therefore adjudged him to have lost 100 percent of his earning capacity
 On that basis he calculated the amount of compensation at Rs 9800 874 and ordered the payment of penalty to the extent of 50 per cent together with interest at 6 percent per annum making a total of Rs 15092 
The appellant felt aggrieved and filed a writ petition in the High Court of Orissa but it was dismissed summarily on October 10 1969
He has therefore come up in appeal to this Court by special leave
It has not been disputed before us that the injury in question was caused to the respondent by an accident which arose out of and in the course of his employment with the appellant
It is also not in dispute that the injury resulted in amputation of his left arm at the elbow
It has however been argued that the injury did not result in permanent total disablement of the respondent and that the Commissioner committed a gross error of law in taking that view as there was only partial disablement within the meaning of section 21g of the Act which should have been deemed to have resulted in permanent partial disablement of the nature referred to in item 3 of of Schedule I of the Act
This argument has been advanced on the ground that the amputation was from 8 from tip of acromion and less than 412 below tip of olecranon
As will appear there is no force in this argument
The expression total disablement has been defined in section 2i 1 of the Act as follows 1 total disablement means such disablement whether of a temporary or permanent nature as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement
 It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident
The Commissioner has examined the question and recorded his finding as follows The injured workman in this case is carpenter by profession
By loss of the left hand above the elbow he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only
 This is obviously a reasonable and correct finding
Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal
There is also no justification for the other argument which has been advanced with reference to item 3 of of Schedule I because it was not the appellant s case before the Commissioner that amputation of the arm was from 8 from tip of acromion to less than 412 below the tip of olecranon
A new case cannot therefore be allowed to be set up on facts which have not been admitted or established
875 It has next been argued that the Commissioner committed serious error of law in imposing a penalty on the appellant under section 4A3 of the Act as the compensation had not fallen due until it was settled  by the Commissioner under section 19 by his impugned order dated May 6 1969
There is however no force in this argument
Section 3 of the Act deals with the employer s liability for compensation
Sub section 1 of that section provides that the employer shall be liable to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment
 It was not the case of the employer that the right to compensation was taken away under sub section 5 of section 3 because of the institution of a suit in a civil court for damages in respect of the injury against the employer or any other person
The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment
It is therefore futile to contend that the compensation did not fall due with after the Commissioner s order dated May 6 1969 under section 19
What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall in default of a agreement be settled by the Commissioner
There is therefore nothing to justify the argument that the employer s liability to pay compensation under section 3 in respect of the injury was suspended until after the settlement contemplated by section 19
The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant and there is no justification for the argument to the contrary
It was the duty of the appellant under section 4A1 of the Act to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent
He failed to do so
What is worse he did not even make a provisional payment under sub section 2 of section 4 for as has been stated he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence
Then there is the further fact that he paid no heed to the respondent s personal approach for obtaining the compensation
It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner
In these facts and circumstances we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty
The appeal fails and is dismissed


Summary:
Under Section 2i1 of the Workmen s Compensation Act 1923total disablement means such disablement whether of a temporary or Permanent nature as incapacitates a workmen for all work which he was capable of per forming at the time of time ocident resulting in such disablement
Under section 4A3 when an employer defaults in paying the compensation within one month from the date it fell due the Commissioner may direct payment of penalty and interest if he is of the opinion that there was no justification for the employer s delay
The Commissioner in the present case awarded compensation holding that the respondent was a carpenter by profession that he suffered an injury by an accident which arose out of and in the course of his employment with the appellant that it resulted in the amputation of his left arm from above the elbow that in consequence he had become unfit for the work of carpenter as carpentery cannot be carried on with one hand only and that therefore the respondent had lost 100 of his earning capacity that is that he suffered total disablement
He also ordered the payment of penalty under section 4A3 together with interest at 6 per cent per annum
The appellant s writ petition to the High Court challenging the order was dismissed
In appeal to this Court it was contended 1 that the amputation was of the nature referred to in item 3 of Part II of Sch
I of the Act and must therefore be deemed to have resulted only in permanent partial disablement and 2 that the Commissioner erred in imposing a penalty as com pensation had not fallen due until it was settled by the Commissioner under section 19
Dismissing the appeal
 HELD 1 The finding of the Commissioner that there was total disablement was correct
The argument with reference to item 3 of Part II of Sch I was a new case which could not be allowed to be raised by the appellant because the facts relied on had not been admitted or established
874G H 2 The Commissioner was fully justified in ordering the Payment of penalty and interest
875A a Section 31 of the Act provides that an employer shall be liable to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment
Therefore under section 4A1 it was the duty of the appellant to pay the compensation at the rate provided in section 4 as soon as the personal injury was caused to the respondent
Not only did the appellant not do so or even make a provisional payment under section 4A2 he took the false pleas that the respondent was a casual contractor and that the accident was caused solely by the respondent s own negligence and raised frivolous objections before the Commissioner that he had no jurisdiction and even prevailed on the respondent to file a memorandum of agreement settling the claim at a grossly inadequate sum
He was therefore liable to pay the penalty and the interest
875B E H b There is nothing in section 10 which provides that if any question arises in any proceeding under the Act as to the liability of any person to pay company on or as to the amount or duration of the compensation it shall in default 873 of agreement be settled by the Commissioner to justify the argument that appellant s liability to pay compensation was suspended until after the settlement under section 19
815 CE