JUDGMENT
1. This is an appeal preferred by the employer under [SECTION] of the [ACT], [SECTION]23 (hereinafter referred to as 'the Act') against the order of the Commissioner for Workmen's Compensation, Rangareddy district Zone ('the Commissioner for short) in W. C. Case No. 155 of [SECTION]88 dated December 18, [SECTION]90. The brief facts are as follows :-
2. The respondent who, according to the appellant herein, was working as a helper in the rice mill of the appellant and was involved in an accident on June 3, [SECTION]87. He underwent treatment and as a result of the said accident his left hand had to be imputed up to below elbow. The Doctor's certificate shows that the stump length bellow the elbow is 10" form olecranon. This is not disputed. On this basis the injury suffered by the respondent falls under [SECTION] to the Act which gives the list of injuries "deemed to result in permanent partial disablement". The percentage of loss of earning capacity in the case of such is 60%. Under Memo No. C/10[SECTION][SECTION]1/87 (NF) dated December 17, [SECTION]87, the Commissioner calculated the compensation payable to the respondent at Rs. 2[SECTION],90[SECTION]-12 ps. on the basis that he, was drawing a salary of Rs. 375/- per month as helper and that his age at the time of accident was 22 years and that 60% of earning capacity was lost, and directed the said amount to be deposited. The said amount was deposited by the appellant and it was withdrawn by the respondent. The counsel on both sides agree that the said Memo was issued on letter dated December 9, [SECTION]87 addressed by the appellant and as per the particulars furnished in the said letter that the respondent was drawing a salary of Rs. 375/- per month and that his age at the time of accident was 22 years and that 60% of his earning capacity was lost.
3. The respondent filed his application for compensation under the Act before the Commissioner stating that the monthly wages that were being paid to him were Rs. 375/- per month although the minimum wage payable to him was fixed at Rs. [SECTION]35/- per month and that he was claiming compensation on the basis of the minimum wages fixed at the relevant time i.e., at Rs. [SECTION]35/- per month. He stated in his application that he was aged 23 years at the time of the accident. He also claimed that he was entitled to 100% of loss of earning capacity and on that basis claimed Rs. [SECTION]7,839-12 ps. as compensation. The said application of the respondent was numbered as W. C. Case No. 155 of [SECTION]88.
[SECTION]. In the counter filed on behalf of the appellant, it was contended that the application of the respondent herein was not maintainable on the ground that already under the Memo dated December 17, [SECTION]87 the compensation payable to the respondent was fixed on the basis of his salary of Rs. 370/- per month and after assessing the loss of earning capacity as 60% and that the said order had become final and therefore the Commissioner could not rehear the matter. There was also the general statement that the appellant did not accept any of the allegations made in the application of the respondent herein and that lie was put to strict proof of the same.
5. After evidence was adduced on both sides and after hearing the arguments advanced on both sides, the Commissioner held that the sum of Rs. 2[SECTION],90[SECTION]-12 ps. was fixed earlier under his Memo dated December 17, [SECTION]87 basing on the particulars furnished by the appellant herein. Therefore, that order was not passed by him after regular enquiry on an application made by the workman i.e., the respondent herein. He also pointed out that it was a Memo issued to the appellant herein without any verification of the wages paid to the workman and that therefore he had jurisdiction to entertain the application of the respondent herein. He also observed that there was no dispute regarding the age and that the wage of Rs. [SECTION]35/- claimed by the respondent was the minimum wage fixed for the category in which he was working but not Rs. 375/- per month. I need not traverse in greater detail this part of the order because the learned counsel for the appellant does not seriously dispute that the Commissioner could deal with the application of the respondent-workman inspite of the earlier Memo dated December 17, [SECTION]87 issued by the Commissioner and that the compensation could be fixed on the basis of the minimum wages of Rs. [SECTION]35/-.
6. The real dispute however is about the percentage of the loss of earning capacity. The Commissioner held that the loss of earning capacity of the respondent had to be taken as 100% and not 60%. There is no dispute that Ex. P-3, which is the "Physically Handicapped Certificate" issued by the Doctor, states that the percentage of loss of earning capacity is 60%. As already stated above, this is as per [SECTION] to the Act. The Commissioner held as follows on this aspect of the matter :-
"Though Ex. P3 shows the physical disability is only 60% the applicant has completely lost his earning capacity, as he could not work with amputated hand and further the loss of physical disability cannot be taken as synonymous with the loss of earning capacity. Hence the loss of earning capacity is to be taken as 100% and the applicant is entitled to Rs. [SECTION]8,1[SECTION]8/- "
7. The learned counsel for the appellant contends that under Clause (c) of sub-section (1) of Section [SECTION] of the Act, where permanent partial disablement results from the injury specified in [SECTION], the amount of compensation shall be "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 that as the injury suffered by the respondent-workman is an injury specified under [SECTION] to the Act and falls under [SECTION] of the said part and the percentage of loss of earning capacity is given as 60%, it is not open to the Commissioner to depart from the said percentage and fix the compensation payable at 100% of the compensation payable for permanent total disablement. He also points out to the heading of [SECTION] which is "List of injuries deemed to result in permanent partial disablement". In this connection, it is instructive to notice the definitions of the expressions "partial disablement" and "total disablement" under Clauses (g) and (1) respectively of [SECTION] of the Act. They are as follows :-
"(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workmen in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time provided that every injury specified in [SECTION] shall be deemed to result in permanent partial disablement."
(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."
The proviso to the definition of partial disablement states that "every injury specified in [SECTION] shall be deemed to result in permanent partial disablement". In view of the said deeming provision, will it be possible to contend that such an injury could never amount to "total disablement" even if it incapacitates the particular workmen suffering that injury for all work which he was capable of performing at the time of the accident ? The proviso to the definition of "total disablement" indicates that if the combination of injuries specified in [SECTION] resulted in the aggregate percentage of loss of earning capacity crossing 100%, permanent total disablement shall be deemed to result. However, such an argument was not advanced before the Commissioner and therefore, I am of the view that that question need not be answered in the present appeal. l have already referred to the counter filed by the appellant herein No contention is raised therein that the respondent - workman would not be entitled to compensation at 100% of the loss of earning capacity though he had claimed the same specifically in his application. The order of the Commissioner also does not indicate that any such contention was advanced before him. The passage from the order of the Commissioner referred to above, shows that the Commissioner found that the respondent-workman completely lost his earning capacity as he could not work with the amputated hand. The evidence adduced does not disclose the functions of an assistant driver, or for that matter, of a 'helper'. It is not the case of the appellant that the respondent workman was offered employment as helper even after the accident. In the circumstances, it is not open to the learned counsel for the appellant to advance such a contention for the first time before this Court in the present appeal under [SECTION] of the Act.
8. The learned counsel for the respondent has placed before me the decision of a learned single Judge of this Court in National Insurance Co. Ltd. v. Mohd. Saleem Khan ([SECTION]92-II-LLJ-377), wherein it was found that the workman injured, who was working as a driver of a heavy vehicle at the time of the accident, was not any more fit to drive any vehicle after the accident and on that finding it was held at page 378 :
"Such disablement comes within the purview of total disablement as defined in [SECTION], [ACT], though the doctor held that physical impairment and loss of physical function was to extent of 50% only. The work which the workman was capable of performing at the time of the accident, is material to consider whether it is a case of total disablement or not, in view of the injuries sustained in the accident. If the workman is incapacitated to do all the work which he was capable of performing at the time of the accident, it is a case of total disablement. It may be that in view of the above injuries, the workman is capable enough to render some other sort of work but still when there is incapacity to do the work which he was capable of performing by the date of the accident, it is a case of total disablement".
The learned Judge relied on the decision of the Supreme Court in [ENTITY] v. Srinivas, ([SECTION]76-I-LLJ-235). However, it has to be pointed out that the injuries received by the workman in that case before the learned single judge, "were multiple compound injuries on both feet and collar bone" and they do not fall under [SECTION] the Act which are deemed as resulting in permanent partial disablement. They fall under sub-clause (ii) of Clause (c) of sub-section (1) of Section [SECTION] of the Act. The decision of the Supreme Court in [ENTITY] (Supra) is direct to the point. The Commissioner in that case found that the injured workman, a carpenter by profession, lost his left hand above the elbow and therefore he was rendered unfit to the work of carpentry as the work of carpentry could not be done by one hand only and on that basis held that the injury suffered by the workman in that case was of such nature as to cause permanent disablement to him. That finding of the Commissioner was questioned before the Supreme Court which held as follows at page 237 :-
"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 [SECTION], 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 [SECTION] 1/2" 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."
The facts narrated in that case show that the workman suffered injuries when he fell down resulting in the amputation of the left arm from the elbow. The facts of that case do not show that the injury suffered was such as would fall under [SECTION] of the Act.
9. The learned counsel for the appellant submits that the Commissioner had no power to grant interest at 16% on the balance of amount of Rs. 2[SECTION],809/-. He submits that the appellant had already deposited the balance amount of Rs. 2[SECTION],90[SECTION]-12 ps. by way of demand draft bearing No. 3608[SECTION][SECTION] dated February 25, [SECTION]91 after receiving the gist of the order on January 18, [SECTION]91 and that therefore there is no default on the part of the appellant in paying the balance compensation as fixed by the Commissioner in his order dated December 18, [SECTION]90. . The record discloses that the appellant deposited the entire sum of Rs. 2[SECTION],90[SECTION] - 12 ps, as required by Memo of the Commissioner dated December 17, [SECTION]87 on January 1, [SECTION]88 and that therefore there was no default on the part of the appellant in payment of the compensation as originally fixed by the Commissioner on the letter dated December 9, [SECTION]87 of the appellant herein. The learned Counsel for the appellant contends that under [SECTION] of the Act the compensation has to be paid only when it falls due and alight it falls due when the Commissioner determines and quantifies the same. He further contends that under [SECTION] of the Act. the Commissioner has discretion only to direct recovery of "simple interest at the rate of 6% per annum on the amount due" and that he is not authorised to impose interest at 16%. So far as the second contention is concerned, I find that it is well taken. The Commissioner has no discretion as regards the rate of interest that can be charged if he exercises his undoubted discretion under [SECTION] of the Act to recover interest; that interest can only be simple interest at the rate of 6% per annum on the compensation amount due. The said [SECTION] however further enables the Commissioner to impose penalty not exceeding 50% of the amount due if in his opinion there is no justification for the delay in paying the compensation due. In the present case, the Commissioner did not purport to impose any penalty. In the circumstances, the rate of interest has to be reduced to 6% from 16% and to that extent the order of the Commissioner has to be modified.
The other contention of the learned counsel for the appellant however, has to be rejected. The question as to when the compensation falls due is no longer res integra. In [ENTITY]'s case (Supra) itself the Supreme Court has held after examining [SECTION], [SECTION], [SECTION] and [SECTION] of the Act that the liability of the employer to pay compensation arises as soon as the personal injury is caused. This is what the Supreme Court held at pages 237-238.
"[SECTION] of the Act deals with the employer's liability for compensation - [SECTION] of that section provides that the employer shall be liable to pay compensation if 'personal injury is caused to a workmen by accident arising out of and in the course of his employment' The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident
It was the duty of the appellant (employer), under [SECTION] of the Act; to pay the compensation at the rate provided by [SECTION] as soon as the personal injury was caused to the respondent".
Earlier the Bombay High Court in [PRECEDENT], : and the Allahabad High Court in [PRECEDENT], ([SECTION]71-II-LLJ-38[SECTION]) took the same view holding that under [SECTION] of the Act. Compensation under [SECTION] should be paid as soon as it fell due and that the liability to pay the compensation was not dependent upon the determination of the same and that it became due and payable on the date when the injury was caused and not on any subsequent date. To the same effect are the decisions of the Gujarat High Court in Smt. Vimlaben Vashrambhai v. The Gujarat Housing Board [SECTION]75 ACJ 8[SECTION], Karnataka High Court in [ENTITY] v. Executive Engineer, PWD, [SECTION]82 ACJ 361, Rajasthan High Court in Ramlal v. Regional Manager Food Corporation of India, Jaipur, [SECTION]81 Lab IC 1281, Jammu & Kashmir High Court in Vajay Ram v. Janak Raj [SECTION]81 Lab IC 1[SECTION]3 and the Himachal Pradesh High Court in [PRECEDENT]. [ENTITY], [SECTION]87 Lab IC 7[SECTION]8. A Division Bench of the Allahabad High Court in U.P. State Transport Corporation v. Abdul Hameed, [SECTION]85 (50) FLR 92, referring to the decision of the Supreme Court in [ENTITY]'s case (supra) affirmed the view taken in [PRECEDENT] (supra). These decisions also show that the position is the same whether the accident results in personal injury or death. The lone divergent view seems to have been struck by the Orissa High Court in K. Chandramma v. Hindustan Constructions Company Ltd. [SECTION]71 Lab IC 315. [ENTITY], J. differed from that view in P. V. Narasyamma v. S. Subbalaxmi [SECTION]86 LS 52 in view of the decision of the Supreme Court in [ENTITY]'s case (Supra) and agreeing with the decision of a Division Bench of the Karnataka High Court in [ENTITY]'s case (Supra). The learned Judge also held that thought [ENTITY]'s, case, (Supra) related to injury suffered by a workman, the principle was the same whether it relates to injury or death and that the Commissioner would be fully Justified in making an order for payment of interest from the date of injury or death. In view of this clear position of law, there is no merit in the contention of the learned counsel for the appellant that interest is not payable from the date of the accident.
10. In the result, the appeal is allowed only to the extent of modifying the rate of interest on the balance amount of Rs. 2[SECTION],809/- payable by the appellant pursuant to the order of the Commissioner in W. C. Case No. 155 of [SECTION]88 dated December 18, [SECTION]90 from 16% to 6% from the date of the accident up to the date of actual payment. In other respects, the said order of the Commissioner stands. No costs.