1. This is an appeal preferred by the employer under S. 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) against the order of the Commissioner for Workmen's Compensation, Rangareddy District Zone (the Commissioner for short) in Workmen Compensation Case No. 155 of 1988, dated 18 December 1990. 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 was involved in an accident on 3 June 1987. He underwent treatment and as a result of the said accident his left hand had to be amputated up to below elbow. The doctor's certificate shows that the stump length below the elbow is 10 from olecranon. This is not disputed. On this basis the injury suffered by the respondent falls under item (4) of Part II of Sch. I to the Act which gives the lists of injures “deemed to result in permanent partial disablement.” The percentage of loss of earning capacity in the case of such is 60 per cent. Under Memo. No. C/10441 of 1987(NF), dated 17 December 1987, the Commissioner calculated the compensation payable to the respondent at Rs. 24,904-12 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 per cent 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 The said amount was deposited by the appellant and it was withdrawn by the respondent.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 9 December 1987, 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 per cent 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. 435 per month and that he was claiming compensation on the basis of the minimum wages fixed at the relevant time, i.e, at Rs. 435 per month. He stated in his application that he was aged 23 years at the time of accident. He also claimed that he was entitled to 100 per cent of loss of earning capacity and on that basis claimed Rs. 47,839.12 as compensation. The said application of the respondent was numbered as Workmen Compensation Case No. 155 of 1988.

4. In the counter fied 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 17 December 1987, the compensation payable to trespondent was fixed on the basis of his salary of Rs. 370 per month and after assessing the loss of earning capacity as 60 per cent and that the said order had become final and, therefore, the Commissioner could not re-hear 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 therein and that he 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. 24,904-12 was fixed earlier under his Memo, dated 17 December 1987, 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 therein 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. 435 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 17 December 1987, issued by the Commissioner and that the compensation could be fixed on the basis of the minimum wage of Rs. 435.

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 per cent and not 60 per cent. There is no dispute that Exhibit P3, which is the “physically handicapped certificate” issued by the Doctor states that the percentage of loss of earning capacity is 60 per cent. As already stated above, this is as per item (4) of Part II of Sch. I to the Act. The Commissioner held as follows on this aspect of the matter:

“Though Exhibit P3 shows the physical disability is only 60 per cent 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 per cent and the applicant is entitled to Rs. 48,148 …”

7. The learned counsel for the appellant contends that under Cl. (c) of Sub-sec. (1) of S. 4 of the Act, where permanent partial disablement results from the injury specified in Part II of Sch. I, 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 Part II of Sch. I to the Act and falls under item (4) of the said part and the percentage of loss of earning capacity is given as 60 per cent, it is not open to the Commissioner to depart from the said percentage and fix the compensation payable at 100 per cent of the compensation payable for permanent total disablement. He also points out to the heading of Part II 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 Cls. (g) and (1) respectively of Sub-sec. (1) of S. 2 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 workman 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 Part II of Sch. I 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 Part II of Sch. I shall be deemed to result in permanent partial disablement.”

(emphasis supplied.)

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 workman 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 injures specified in Part II of Sch. I result in the aggregate percentage of loss of earning capacity crossing 100 per cent 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 the question need not be answered in the present appeal. I have already referred to the counter filed by the appellant herein. No contention was raised therein that the respondent-workman would not be entitled to compensation at 100 per cent 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 S. 30 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 Company, Ltd. v. Mohammed Saleem Khan [1991 - II L.L.N 922], 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 finding it was held, in Para. 5, at page 923, that:

“Such disablement conies within the purview of total disablement as defined in S. 2(1), Workmen's Compensation Act, though the doctor held that physical impairment and loss of physical function was to be extent of 50 per cent 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 Pratap Narain Singh Deo v. Srinivas Sabata [1976 — I L.L.N 16], However, it has to be pointed out that the injures 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 Part II Sch. I to the Act which are deemed as resulting in permanent partial disablement. They fall under Sub-cl. (ii) of Cl. (o) of Sub-sec. (1) of S. 4 of the Act. The decision of the Supreme Court in Pratap Narain (vide 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 carpenter 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 and the Supreme Court held as follows, in Para. 5, at page 18:

“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 Part II of Sch. I, because it was not the appellant's case before the Commissioner that amputation of the arm was from 8 from tip of cromion to less than 4½ “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 Part I of Sch. I of the Act.

9. The learned counsel for the appellant submits that the Commissioner had no power to grant interest at 16 per cent on the balance of amount of Rs. 24,809. He submits that the appellant had already deposited the balance a mount of Rs. 24,904-12 by way of demand draft bearing No. 360844, dated 25 February 1991, after receiving the gist of the order on 18 January 1991 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 18 December 1990. The record discloses that the appellant deposited the entire sum of Rs. 24,904-12 as required by memo of the Commissioner, dated 17 December 1987, on 5 January 1988 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 9 December 1987, of the appellant herein. The learned counsel for the appellant contends that under S. 4-A of the Act the compensation has to be paid only when it falls due and that it falls due when the Commissioner determines and quantifies the same. He further contends that under Sub-sec. (3) of S. 4-A of the Act, the Commissioner has discretion only to direct recovery of “simple interest at the rate of 6 per cent per annum on the amount due” and that he is not authorised to impose interest at 16 per cent.

10. 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 Sub-sec. (3) of S. 4-A of the Act to recover interest; that interest can only be simple interest at the rate of 6 per cent per annum on the compensation amount due. The said Sub-sec. (3) however, further enables the Commissioner to impose penalty not exceeding 50 per cent 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 per cent from 16 per cent and to that extent the order of the Commissioner has to be modified.

11. The other contention of the learned counsel for the appellant, however, has to be rejected. The question as to when compensation falls due is no longer res Integra. In Pratap Narain Singh case [1976 — I L.L.N 16] (vide supra), the Supreme Court has held after examining Ss. 3, 4, 4-A and 19 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, in Paras. 7 and 8, at page 18:

“Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of the 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…’

….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 S. 4-A(1) of the Act, to pay the compensation at the rate provided by S. 4 as soon as the personal injury was caused to the respondent ….”

Earlier the Bombay High Court in Mahgarida Gomes v. M. Mackenzie and Company [A.I.R 1968 Bom. 328], and the Allahabad High Court in Saraswati Press v. Nand Ram [1971 A.C.J 316], took the same view holding that under S. 4-A of the Act, compensation under S. 4 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. Gujarat Housing Board [1975 A.C.J 84], Karnataka High Court in Jayamma v. Executive Engineer, Public Works Department [1982 A.C.J 361] Rajasthan High Court in Ram Lal v. Regional Manager, Food Corporation of India, Jaipur [1981 L. & I.C 1281], Jammu and Kashmir High Court in Vijay Ram v. Janak Raj [1981 A.C.J 84] and the Himachal Pradesh High Court in Ram Dulari Kali v. H.P.S.E Board, Shimla [1987 - I L.L.N 825]. A Division Bench of the Allahabad High Court in Uttar Pradesh State Transport Corporation v. Abdul Hameed [1985 - I L.L.N 610], referring to a decision of the Supreme Court in Partap Narain Singh case [1976 - I L.L.N 16] (vide supra), affirmed the view taken in Saraswati Press v. Nand Ram (vide 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. [1971 L. &. I. C. 135], K. Ramaswamy, J., differed from that view in P.V Narasayamma v. S. Subbalaxmi [1980 L.S 52], in view of the decision of the Supreme Court in Pratap Narain Singh case (vide supra), and agreeing with the decision of Division Bench, of the Karnataka High Court in Jayamma case (vide supra). The learned Judge also held that though Pratap Narain Singh case (vide 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.

12. In the result, the appeal is allowed only to the extent of modifying the rate of interest on the balance amount of Rs. 24,809 payable by the appellant pursuant to the order of the Commissioner in Workmen Compensation case No. 155 of 1988, dated 18 December 1990, from 16 per cent to 6 per cent 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.