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PETITIONER: PRATAP NARAIN SINGH DEO

       Vs.

RESPONDENT: SRINIVAS SABATA AND ANR.

DATE OF JUDGMENT04/12/1975

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  222            1976 SCR  (2) 872  1976 SCC  (1) 289

ACT:      Workmens Compensation  Act (8  of 1923) ss. 2 (i)(1) 44 and 19 and item 3 of Part II of Sch. I-Scope of.

HEADNOTE:      Under Section  2(i)(1) of  the  Workmen’s  Compensation Act,  1923,"total   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 s.  4A(3), 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 s. 4A(3) 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 s. 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

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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  3(1) 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  s. 4A(1) it was the duty  of the  appellant to  pay the  compensation at the rate provided  in s.  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  s. 4A(2), 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 s.  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 s. 19. [815-CE]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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 O.J.Cs. No. 877 of 1969.      Santosh  Chatterjee   and  G.  S.  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 Workmen’s Compensation  Act, 1923,  (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

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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. 15,092/-.      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 2(1)(g) of the Act which should have been deemed to  have resulted in permanent partial disablement of the nature referred to in item 3 of Part II 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 41/2"  below tip of olecranon. As will appear, there is no force in this argument.      The expression  "total disablement" has been defined in section 2(i) (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

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appeal.  There  is  also  no  justification  for  the  other argument which has been advanced with reference to item 3 of Part II  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 41/2" 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. 875      It has next been argued that the Commissioner committed serious error  of law in imposing a penalty on the appellant under section  4A(3) 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 4A(1) 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.

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V.P.S.                                      Appeal dismissed 876