ORDER D.P.S. Chouhan, J. 1. It is an appeal under section 30 of the Workmen's Compensation Act, 1923 (for brevity hereinafter referred to as 'the Act') at the behest of M/s Diamond Cements Narsingarh against Smt. Pravin Bano, Ku. Rauvin, Ku. Asmin, Ku. Tajbano, Ku. Taj Been and Ku. Nagvin arising out of the order of the Workmen's Compensation Commissioner, Labour Court, Sagar, dated 29-10-1990 whereby the respondents, who were the claimants before the Workmen's Compensation Commissioner, were awarded Rs. 74,760/- by way of compensation and 6% per annum interest thereover was allowed and also a sum of Rs. 20,000/- by way of penalty and Rs. 200/- by way of costs. 2. The facts in brief are that one Rustam Khan was employed with M/s Diamond Cements Narsingarh as driver since 1982 who on 21-4-1986 reported for duty at 6 a.m. at the factory and who taking out the official car of the factory at 6.30 a.m. reported at the residence of the concerned official of the factory where he developed pain in his chest and on getting such news, the official at whose residence Rustam Khan took the vehicle, called another driver and asked for taking Rustam Khan to the hospital of the Diamond Cement Factory on being advised by Dr. Deo, was taken to the main Government Hospital at Damoh who in the way died and was declared dead by the doctors in the Government Hospital. His salary at the time of his death was Rs. 1,000/- per mensem and was of 39 years of age. 3. The heirs and legal representatives of the deceased Rustam Khan i.e. Smt. Pravin Bano (his wife), Ku. Rauvin, Ku. Asmin, Ku. Tajbano, Ku. Taj Been and Ku. Nagvin (his daughters) who were his dependents, made a claim under the Act for compensation, which was registered as Claim Case No. 3/88 before the Labour Court, Sagar. After exchange of reply, the following four issues for determination were framed : (Editor: The text of the vernacular matter has not been reproduced.required.) 4. The first issue was decided in favour of the claimants by holding that Rustam Khan died while on duty. On issue No. 2, the finding recorded was that he was getting salary of Rs. 1,000/- per mensem. It was also found that before start of the duty, on 26-4-1986, the deceased Rustam Khan got indisposed. 5. The first issue was decided in favour of the claimants by holding that Rustam Khan died while on duty. On issue No. 2, the finding recorded was that he was getting salary of Rs. 1,000/- per mensem. It was also found that before start of the duty, on 26-4-1986, the deceased Rustam Khan got indisposed. 5. Heard the learned counsel for the appellant. No one represented the respondents in spite of the fact of cause list having been revised. 6. It may, at the outset, be noted that in view of the requirement of first proviso to section 30 of the Act, no appeal lay against any order unless substantial question of law is involved in the appeal. The learned counsel for the appellant submitted that he does not challenge the findings of the Workmen's Compensation Commissioner on the issues Nos. 1 to 3. He made two fold submissions : (1) That Rustam Khan died due to heart attack which was not the scheduled injury. (2) That the penalty as has been imposed is in violation of the provisions of section 4A of the Act wherefor no opportunity to the appellant was given to explain the delay. 7. On the first point, learned counsel for the appellant submitted that under section 3 of the Act, the personal injury caused to the person by accident arising out of and in the course of his employment, is to be compensated and sub-section (2) of section 3 of the Act provides compensation for the deceased by deeming it to be the injury by accident within the meaning of section 3 of the Act and as such, he was not entitled for any compensation and the order appealed against is bad in law. 8. 8. The first proviso to sub-section (2) of section 3 of the Act is as extracted below :- "Provided that if it is proved, - (a) that a workman whilst in the service of one more employers in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under this sub-section for that employment, and (b) that the disease has arisen out of and in the course of the employment; the contracting of such disease shall be deemed to be an inquiry by accident within the meaning of this section :" Thus, this Proviso lays down that if a workman whilst in the service of employer in any employment specified in Part C of Schedule III has contracted a disease specified therein as an occupational disease peculiar to that employment during a continuous period which is less than the period specified under sub-section (2) of section 3 of the Act, for that employment, and that the disease has arisen out of and in the course of the employment, such a disease is taken to be the injury by accident within the meaning of section 3 of the Act and this position is not disputed by the learned counsel for the appellant. This point was not raised before the Workmen's Compensation Commissioner and Workmen's Compensation Commissioner not having recorded any such findings, it cannot be said to be a substantial question of law. Thus, this point, as raised by the learned counsel for the appellant, is sans substance. 9. Now, the second point/submission as raised by the appellant's learned counsel is that so far as the award of the Commissioner in respect of compensation is concerned, he has no grievance against the same but the grievance is against the penalty part as the penalty is in violation of the provisions of section 4A of the Act and wherefor or no opportunity to the appellant to explain satisfactorily the delay, was given. 10. Section 4A of the Act is as extracted below :- "4-A. Compensation to be paid, when due and penally for default. - (1) Compensation under section 4 shall be paid as soon as it falls due. 10. Section 4A of the Act is as extracted below :- "4-A. Compensation to be paid, when due and penally for default. - (1) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim. (3) 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 the 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 delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty." 11. Under sub-section (1) of section 4A of the Act, the Compensation under section 4 (which is provided in section 4 of the Act) has to be paid as soon as it falls due. Section 4 provides for the quantum of the amount payable under different categories of circumstances. Sub-section (2) of section 4A provides the situation in case of default in deposit or payment of compensation in the cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts. This sub-section makes it clear that the amount which falls due, such amount of liability which the employer accepts, must be paid. Sub-section (3) of section 4A is the additional provision which gives discretion to the Workmen's Compensation Commissioner for awarding simple interest at the rate of 6% per annum on the amount together with, if in the opinion of the Commissioner, there is no justification for the delay. Since the awarding of the interest has not been disputed, it is not necessary to dilate on this aspect of the matter. Sub-section (3) further provides for penalty in clear terms. Since the awarding of the interest has not been disputed, it is not necessary to dilate on this aspect of the matter. Sub-section (3) further provides for penalty in clear terms. In the present case, a penalty to the tune of Rs. 20,000/- has been awarded. This point was also not raised before the Workmen's Compensation Commissioner, as no such issue was framed. However, the point is entertained. 12. Sub-section (3) of section 4A of the Act envisages three aspects : viz. (1) compensation due to the workman; (2) interest; (3) penalty. The delay in making payment of compensation as soon as it falls due is taken as a ground for awarding interest at 6% per annum on the amount of compensation. The provision of penalty is intended to act as a deterrent on the employer for avoiding delay in the payment of compensation as and when it falls due though the same is subject-matter of discretion. But the penalty part is not to be included for the purpose of awarding interest. 13. An important thing to be noticed in section 4A is that the section does not contain the provision where the employer deny the liability for compensation in toto. Where the liability is denied in toto, then, it cannot be said that the liability has fallen due on the date of the accident. Two categories of cases are covered by sub-section (1) and sub-section (2) of section 4A of the Act, - one is where the entire compensation is accepted and the other is where the entire liability of compensation is not accepted but only part is accepted. It does not cover the case or cases where the wholesome liability is denied. In such a case, the due date would not be the date it is denied. In such a case it cannot be said that there is no justification for delay in the payment of compensation and it would not be a case for imposition of a penalty. The proposition that the discretion to left the penalty must be exercised judiciously and after due consideration of all relevant circumstances is the legal position no more res integra. 14. In view of the above, I am of the view that the penalty imposed on the appellant is unwarranted. 15. There is also a cross objection on behalf of Smt. Pravin Bano, Ku. Rauvin, Ku. Asmin, Ku. Tejbano, Ku. 14. In view of the above, I am of the view that the penalty imposed on the appellant is unwarranted. 15. There is also a cross objection on behalf of Smt. Pravin Bano, Ku. Rauvin, Ku. Asmin, Ku. Tejbano, Ku. Taj Been and Ku. Nagvin in the Misc. Appeal No. 542/90 making a prayer for modification of the award of the Workmen's Compensation Commissioner and enhance the amount of compensation. Counsel for cross objection is not present. It may however be noticed that the provisions of the Code of Civil Procedure are not applicable to the appeals or proceedings under the Workmen's Compensation Act. The Cross-objection is not maintainable and accordingly deserves to be rejected. It is accordingly rejected. 16. The appeal is partly allowed. So far as the amount of compensation and the awarding of the interest and cost are concerned, the same are maintained, but the part to the extent of imposition of penalty to the tune of Rs. 20,000/- is set aside. In the facts and circumstances of the case, I make no order as to costs.