JUDGMENT
R.D. Vyas, J.
1. These two appeals arise against the same judgment and award by the Commissioner for Workmen’s Compensation, Indore, who was pleased to award an amount of Rs. 20,097. Both the employer and employee have preferred the aforesaid appeals-Misc. Appeal No. 387 of 1996 is by the employee Bharat Singh whereas Misc. Appeal No. 165 of 1997 is by the employer Pluton Cement Pvt. Ltd.
2. The short facts giving rise to these appeals are that the employee Bharat Singh was working with the employer Pluton Cement Pvt. Ltd. His salary at the time of accident was Rs. 600 per month. The accident took place on 27.3.1988. The employee lost two phalanges of the index finger and middle finger was injured. His age was 28 years. The employee gave notice to the employer of the accident. In reply employer asked the employee to get himself examined by a qualified medical practitioner but he did not do so. He was already examined by a qualified medical practitioner. After taking evidence, the Commissioner was pleased to hold that the employee had sustained 32 per cent disability in his left hand.
3. Mr. S. Patwa, counsel for the appellant employee in Appeal No. 387 of 1996 and Mr. D.M. Kulkarni, counsel for the appellant in Appeal No. 165 of 1997 for the employer and both the learned Counsel appeared vis-a-vis. Since the appeal of the employee was already admitted and both the parties were appearing and since the delay was required to be condoned both the counsel felt that the matter could be decided then and there, therefore, at their request and consent the appeals were heard on 14.3.1997 itself.
4. Mr. Patwa argued that the evidence of the employee Bharat Singh as PW 1, Dr. Saxena as PW 3, Liladhar as PW 2 proved that the employee was aged 28 and his service came to an end because of the injuries that he sustained. Therefore, the Commissioner ought to have granted 100 per cent disability benefit. He argued that what is material in granting the compensation is not the physical disability but the disability in his earning capacity. He has argued that in a given case an injury may not affect the earning capacity but may give rise to some physical disability only whereas it is also possible as in this case that the injury was comparatively lesser in percentage so far as physical disability is concerned but looking to the nature of work the employee in this case was required to perform, he was incapacitated 100 per cent and in fact the evidence proves that the employee could not continue as his services came to be terminated because of this injury. In that view of the matter he argued that the Commissioner ought to have granted 100 per cent disability benefit rather than basing on 32 per cent physical disability. He argued that the Commissioner has erred even in not granting interest on the amount that was granted by way of compensation. The law makes it mandatory under Section 4A of the Workmen’s Compensation Act that the Commissioner shall award 6 per cent interest in case the amount due is not paid by the employer as and when it fell due. He argued that in this case at least one thing is certified that the injury has occurred during the course of the employment and in the premises of the employer. He argued that looking to the injury and the disability on 100 per cent basis according to the Schedule ought to have been granted as per Rs. 600 p.m. and the employee should get Rs. 65,541 with interest at 6 per cent per annum. The Commissioner should also have imposed penalty on the employer as he did not make the payment of dues within time as required by law.
5. Mr. Kulkarni, learned Counsel for the respondent on the other hand, argued for the employer that the Commissioner was not justified in granting even 32 per cent of the Schedule compensation as looking to the injury of loss of phalanges he could have been awarded 20 per cent loss of earning capacity. He also argued that the Commissioner should have dismissed the application of the employee because as required by Section 11 of the Workmen’s Compensation Act when the employer demanded the employee to appear before a qualified medical examiner, but he did not go, there should be an adverse inference against it.
6. To this Mr. Patwa had argued that the employee was in fact examined by a qualified medical examiner, therefore, there was no reason to examine him over again. However, that does not disentitle him of the benefit under the Workmen’s Compensation Act. He argued that looking to the evidence of Bharat Singh, PW 1 and in the absence of any evidence by the employer the compensation should have been paid on the basis as claimed by the employee.
7. Hearing the learned Counsel and appreciating the evidence of the aforesaid witnesses, I am in agreement with the argument advanced by Mr. Patwa. The employee has been relieved from service, therefore, it has to be accepted that the disability attached to him because of the injury is 100 per cent so far as the earning capacity is concerned. So far as notice under Section 11 is concerned, it must be appreciated that Dr. Saxena is a qualified medical examiner, he has not only examined the employee but has given his evidence, therefore, there is no reason to doubt the evidence given by the employee himself, or of Liladhar as also of Dr. Saxena. Looking to the resultant loss, of earning it has to be accepted that the employee could not continue in his vocation, which he was having at the time of the accident and which he would have continued. The disability has to be accepted as 100 per cent rather than lesser percentage as certified by the doctor as the evidence proves the fatal disability of 100 per cent in the loss of job altogether. In that view of the matter, Appeal No. 387 of 1996 deserves to be and is hereby allowed. The award of the Commissioner is amended to Rs. 65,541 as against the amount granted by the Commissioner. The amount will bear an interest at 6 per cent per annum from the date it had become due except for the amount that was deposited by the employer. That amount will not bear the interest from the date of the deposit. The further amount deposited also will not bear interest from the date of that deposit, however, the same will bear interest from the date the same had become due till deposit is made. The Appeal No. 165 of 1997 as a natural corollary deserves to be and is hereby dismissed. The employer in both the appeals will pay the cost of the employee. Counsel’s fees as per schedule.