JUDGMENT
Deepak Gupta, J.
1. This is an appeal by the workman under Section 30 of Workmen ‘s Compensation Act. The appeal has been admitted on the following substantial questions of law:
(1) Whether the learned Commissioner is right in assessing the compensation by taking disability at 30 per cent despite holding that the loss of earning capacity is to the extent of 100 per cent by misconstruing the provisions of Section 4 of the Workmen’s Compensation Act, 1923?
(2) Whether the learned Commissioner is right in not awarding 50 per cent penalty as envisaged under Section 4-A of the Workmen’s Compensation Act?
(3) Whether the learned Commissioner is right in not taking into consideration the law laid down by this Hon’ble court in Himachal Pradesh State Forest Corporation Ltd. v. Sheesh Ram ?
(4) Whether the learned Commissioner erred in law in ordering the deduction of ex gratia payment?
2. The brief facts necessary for the decision of the case are that the appellant Puran Dutt was working as a driver in the Himachal Road Transport Corporation (H.R.T.C). On 29.9.1999 the claimant was on duty with bus No. HP 07-2099 which met with an accident. The claimant suffered serious injuries in the accident and his right leg was crushed. He was taken to hospital. In view of the injuries, the claim- ant has suffered 30 per cent disability. However, there is sufficient material on record to show that as far as the work of driving is concerned, he is totally unable to do this work.
3. The first question of law raised is that whether the Commissioner should have assessed the compensation by taking the loss to the earning capacity at 100 per cent. Section 4 of the Act provides the method of computing compensation payable to the workman.
4. Section 4 (1) (c) of the Act reads as follows:
4(1) (c) Where permanent partial disablement results from the injury
(i) in the case of an injury specified in Part II of Schedule I, 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
(ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
5. It is clear from a reading of Section 4 (1) (c) that in case of injury not specified in Schedule I, the Commissioner can award such compensation as is proportionate to his loss of earning capacity as assessed by a qualified medical practitioner. The expression total disablement has been defined in Section 2 (1) (1) of the Act which reads as follows:
2 (1) (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:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;
6. This expression has been considered by the Apex Court in Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC), wherein the court held as follows (para 5):
(5) The expression ‘total disablement’ has been defined in Section 2 (1) (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 nature as to cause permanent disablement to the respondent, and the question for consideration is that 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 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 that 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 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.
7. From a bare perusal of the Act and the judgment of the Apex Court it is clear that if in a particular case from the evidence led on record it is proved that the workman has been incapacitated to do the work which he was capable of performing before the accident it would mean that he is totally disabled and his loss of earning capacity is 100 per cent.
8. In the present case claimant himself has stated that he cannot work as a driver. In this behalf he has also examined Dr. Anil Bansal, Orthopaedic Surgeon, Zonal Hospital, Solan as PW 2 who clearly stated that the workman shall be unable to do the work of driving. Similarly, Dr. Dinesh Rana, PW 3, has stated that though the disability of the claimant is 30 per cent, as far as his loss of earning capacity is concerned, it is 100 per cent since he is unable to drive a vehicle. He also states that he has given this opinion on the application of the H.R.T.C. In fact the evidence led by the respondent H.R.T.C. itself clinches the matter. The respondent examined one Jag-dish Chand as RW 1 who has stated that Puran Dutt (appellant) was found unfit to do the job of a driver and, therefore, he was compulsorily retired from the H.R.T.C. It is thus clear that loss of earning capacity as far as the appellant is concerned was 100 per cent and the compensation should have been assessed by taking the appellant to have suffered permanent total disablement. Question No. 1 is answered accordingly.
9. The wages of the claimant at the time of accident were Rs. 8,381 per month. This is stated in statement of RW 1. Maximum wages which could be taken into consideration in the year 1999 were Rs. 2,000. 60 per cent of these wages had to be multiplied by the relevant factor. The age of the claimant was 42 years and the relevant factor is 178.49 and, therefore, the compensation payable works out to Rs. 2,000 x 60/100 x 178.49 = Rs. 2,14,188.
10. The next question which arises is whether this was a fit case where penalty should have been awarded. The accident in question took place on 29.9.1999. The claim petition was filed on 28.2.2002 and it was decided on 31.5.2003. For a period of 4 years the H.R.T.C. did not deem it fit to pay the amount. It could have at least deposited the amount payable by taking the disability at 30 per cent even if employer had shown that there would have been some mitigating circumstances in its favour. However, in the present case the amount was deposited more than 4 years after the accident. In the meantime the claimant had also been compulsorily retired from service. The attitude of the employer, to say the least, was callous. The Supreme Court in Pratap Narain Singh Deo v. Shrinivas Sabata 1976 ACJ 141 (SC), with regard to the penalty held as follows:
(8) It was the duty of the appellant, under Section 4-A (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 false pleas that respondent was a casual contractor and that accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to respondent’s personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling 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.
11. This court in Ram Dulari Kalia v. Himachal Pradesh State Electricity Board, 1987 ACJ 258 (HP), held as follows:
(16) The question then is as to what penalty should be ordered to be recovered from the respondents in the factual matrix of this case. The same factors and considerations are again relevant while considering this question. Respondents are not private employers but public sector employers. They are an agency or instrumentality of the State. They are expected to be model employers. While dealing with their workman, it is their duty to implement the beneficent provisions of the Act in their true letter and spirit and to make payment of the compensation as soon as it falls due. In view of the fact that the basic requirement, namely, the death having occurred as a result of the injury sustained in an accident arising out of and in the course of employment, was never in dispute in the present case, it was the duty and obligation of respondents to pay the compensation due under the Act as soon as it fell due. Both, the statutory provisions and the case-law on the subject, are clear and specific in regard to the precise point of time when the payment is required to be made. In the reply to the application for review, the appellant had drawn their specific attention thereto. Still, however, as found earlier, the liability was not admitted initially and no payment of compensation was made until ten days before the fresh award was announced in the review proceedings, although they were called upon by the Commissioner to deposit the compensation way back in January 1985 when the notice under Section 10-A was issued. All sorts of objections, one of which was based on a contract which was apparently void, were set up and pleaded in support of the denial of liability as well as in justification for the delay. I do not think under such circumstances a public sector employer can be relieved of the rigours of the provision relating to the recovery of penalty up to the maximum extent. I, therefore, regard this to be a fit and proper case where respondents should be directed to pay penalty to the extent of 50 per cent of the amount of statutory compensation.” Similar view was taken by this court in Himachal Pradesh State Forest Corporation Ltd. v. Sheesh Ram .
12. In the present case the employer is a public sector undertaking. It was aware that the claimant had suffered disability. There could have been some dispute with regard to the extent of compensation to be paid. However, there could be no manner of doubt that appellant had met with an accident during the course of employment and had suffered 30 per cent disability. The least which was expected of such an employer is that it should have deposited the amount of compensation by taking the disability at 30 per cent immediately after the receipt of the disability certificate. In fact, in the present case, as pointed out above, PW 3, Dr. Dinesh Rana, on the application of the employer had issued a certificate showing that appellant had become unfit to work as a driver. On the basis of such a certificate the employer compulsorily retired the appellant. There are no mitigating circumstances in favour of the H.R.T.C. and in view of these facts I feel that it is a fit case where maximum penalty of 50 per cent should be imposed. Question Nos. 2 and 3 are answered accordingly.
13. The last question is as to whether deductions could be made for the ex gratia payment made to the employee.
14. Allahabad High Court in Moti Lal v. Thakur Das, 1985 ACJ 634 (Allahabad), under similar circumstances held that the amount paid to the injured workman by the employer towards compensation can be deducted from the amount of compensation. Similar view has been taken by Calcutta High Court in Equitable Coal Co. Ltd. v. Kashia Mahatin . However, these courts have also taken the view that the amount not paid towards compensation, but paid towards medical expenses are not to be deducted. In the present case as per the statement of RW 1 these payments were made by way of ex gratia grant and there is nothing on record to show that these payments were made for medical expenses. In fact the medical expenses of the claimant have been reimbursed. Therefore, this amount will have to be treated as having been paid towards compensation. Accordingly, the amount of compensation payable to the petitioner will come down to Rs. 2,09,188 and the penalty on this amount would be Rs. 1,04,594.
15. In view of the above discussion, the present appeal is allowed and it is held that the claimant is entitled to compensation of Rs. 2,09,188 and penalty of Rs. 1,04,599. Further, on the amount of compensation of Rs. 2,09,188 the claimant shall also be entitled to interest at the rate of 12 per cent per annum w.e.f. 29.10.1999, i.e., one month after the date of accident till deposit of the amount. The appeal is disposed of in the aforesaid terms.
Cross-objection No. 472 of 2003:
16. These cross-objections are no cross-objections in the eyes of law. All that has been stated in the cross-objections is that the award should be upheld and the award has not been challenged. Therefore, the cross-objections are dismissed.