JUDGMENT : 1. The appellant, the original applicant, was in the employment of the respondent (the opponent) company as a coolie engaged in loading and unloading of the employers' goods. On June 23, 1980, while 16 labourers, including the applicant, were engaged in loading glass sheets bundles on a truck, a bundles fell down and crashed the left foot of the applicant. This resulted in compound fractures of middle shaft (L) tibia and fibula. The applicant was taken to the hospital. He remained in the hospital for more than two moths and has, though recovered and has, though recovered, been walking with crutches. The applicant claimed compensation on the basis of 100% loss of working capacity. The claim was disputed by the employers. Their defence was that the applicant had met with the accident as a result of his own negligence. It was denied that the applicant had become totally disaled. Further, a sum of Rs. 4,500/- was stated to have been advanced by the employers to the applicant which required to be deducted in case any amount was held payable by the employers to the applicant. 2. Referring to the evidence in the shape of a medical certificate issued by a doctor from J.J. Hospital dated April 23, 1981, in which the permanent partial disability of the applicant was estimated at 35% and the fact that the applicant was employed by the employers as a watchman at a salary or Rs. 260/- per month as against the salary of about Rs. 500 per moth, which he was earlier getting, the commissioner for workman's Compensation held that the physical disability of the applicant could be reasonably estimated at 60%. On this basis, he computed the amount of composite payable to the applicant at Rs. 18,114/- Observing that though belatedly, vouchers for payment of Rs. 5,470/- indicating payment to the applicant were product and the applicant had though denied having received those amounts, did not step into the witness box to face the cross-examination regarding the vouchers, the Commissioner held that a sum of Rs. 4,500/- should be treated as having been paid to the applicant by the employers and that amount required deduction from the amount of compensation payable. The Commissioner did not consider the case to be a fit case for imposing penalty or for directing payment of interest u/s 4A of the Workmen's Compensation Act. 3. 4,500/- should be treated as having been paid to the applicant by the employers and that amount required deduction from the amount of compensation payable. The Commissioner did not consider the case to be a fit case for imposing penalty or for directing payment of interest u/s 4A of the Workmen's Compensation Act. 3. Aggrieved by the aforesaid judgment dated October 6, 1982 of the Commissioner for Workmen's Composition, the applicant has come up in appeal. The main grounds are that the court below was not justified in determining the physical disability at 60% instead of 100% claimed by him and that the payment of Rs. 4,500/- was not proved and was in any event not deductible from the amount of compensation payable. As regards interest, the claim was that the interest was required to be paid automatically once any amount was found payable as compensation under the Act. Regarding penalty, the case was that the defence put by the employers was, to say the least, most untenable. For instance, it was claimed that the accident had occurred as a result of the applicant's neglience as it as due to the mischief he was doing with other workers at the time of loading the lorry. The fact that no evidence whatsoever was produced in support of this defence shows that the defence as not boa fide. Accordingly it was urged that the lower Court was not justified in not imposing penalty u/s 4A of the Act. 4. None appeared no behalf of the respondent employers. Shri Kudrolli, the learned counsel for the applicant, took the court through the evidence and the impugned judgment. I have gone though the evidence and the impugned order carefully. 5. There being no appeal or cross-objections, it has to be take as established that the accident too place out of and in the course of the employment. The first issue, therefore, is whether the determination of disability by the Court below at 60% is justified. I this context, reference may usefully be made to the facts which are not disputed. The applicant met with an accident and had to remain in the hospital. He sustained multiple compound fractures of middle shaft (L) tibia and fibula. He is now walking with crutches. He was employed as a coolie engaged in loading and unloading of the goods. I this context, reference may usefully be made to the facts which are not disputed. The applicant met with an accident and had to remain in the hospital. He sustained multiple compound fractures of middle shaft (L) tibia and fibula. He is now walking with crutches. He was employed as a coolie engaged in loading and unloading of the goods. It is true that the employers had claimed that the applicant was employed as a watchman after the accident for a period of one month and was paid a salary of Rs. 260/- per month and this claim was accepted by the lower Court. It is however, see that the vouchers on the basis of which this claim had been made and was taken as proved were not proved a such. No doubt it is seen from the record that the applicant refused to step into the witness box to face the cross-examination regarding the vouchers on the ground that the vouchers had not been proved. It further appears that the lower court drew a adverse inference from the fact that the applicant did to enter into the witness box. To my mind, when the vouchers themselves were not proved, the fact of the applicant not entering the witness box would not make them proved. On the basis of the unproved vouchers the lower Court came to the conclusion that the applicant had worked as a watchman with the employers for a month on a salary of Rs. 260/- per month. In my opinion, the lower Court was not justified in doing so. That apart, the very fact that the applicant was employed for one month only rather goes to show that the applicant was not fit enough even to work as a watchman. Otherwise he would have continued. 6. Moreover, the Court's attention was invited to this Court's judgment in the case of Samir U. Parikh Vs. Sikander Zahiruddin, in which, after referring to the Supreme court decision in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, it was held that the incapacity to earn is to be determined with reference to the work or job the workman was doing at the time of the accident. In the Supreme Court decision, the workman was a carpenter and had suffered a injury which resulted in amputation of his left arm. Srinivas Sabata and Another, it was held that the incapacity to earn is to be determined with reference to the work or job the workman was doing at the time of the accident. In the Supreme Court decision, the workman was a carpenter and had suffered a injury which resulted in amputation of his left arm. This had rendered him unfit for the work of a carpenter though he could do some other work. The Supreme Court confirmed the finding of the Commissioner that he was incapacitated to the extent of 100%. In the present case, the applicant, as stated earlier, was working as a coolie. The defect in his leg as a result of which he was to walk with crutches will certainly make him unfit to do the work of a coolie. Therefore, the incapacity in his case will have to be taken at 100%. Therefore, the applicant would be entitled to compensation in the sum of Rs. 32,340. 7. As regards payment of Rs. 4,500/-, it has already been observed that the vouchers relied upon in this behalf were not proved. Even otherwise, I have gone through the vouchers, the vouchers only indicate that some payments were made by the employers to the applicant by way of salary for 11 months after he came out of the hospital. This included the alleged payment of Rs. 260/- towards salary when he worked as a watchman in the last of the 11 months. Assuming these payments were genuine payments, it is beyond one's comprehension how could these payments be treated as advances or be adjusted against the amount of compensation. If at all, these payments were salary payments. 8. As regards interest, the provisions of Section 4A(3), in my judgment, are clear. Section 4A(3) reads as under : "Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the commissioner may direct that, in addition to the amount of arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty". As held by this Court in Gannon Dunkerly and Co. As held by this Court in Gannon Dunkerly and Co. v. Smt. Aleyamma Varghese (1) 1988 ACC 426 (Bom), interest is required to be paid as soon as a amount is determined to be payable to the workman by way of compensation. Accordingly, it is directed that the employers shall pay simple interest at the rate of 6% per annum on the amount of compensation from the date of the application till the date of the payment. 9. Coming the to the claim for penalty, I am of the view that the defence take by the employers that the accident was the result of the applicant's own negligence is, to say the least, not a bona fide defence. No evidence was produced in support thereof. At the same time, one cannot perhaps dispute that whether disability was total or 60% or whether the amount of Rs. 4,500/- was or was not paid, whether those amounts required to be deducted, there can be genuine dispute about them. Having regard to the above discussion, in my judgment, ends of justice will be, met if 10% penalty is directed to be recovered from the employers. 10. In the result, the appeal is allowed with costs.