JUDGMENT : Deepak Gupta, J. Both the appeals are being disposed of by a common judgment. 2. The admitted facts of the case are that Claimant Israr Khan was employed with Appellant Mahaveer Construction Company. He met with an accident during the course of employment and suffered injuries on left hand. Dr. Y.K. Tiwari was examined who also proved the disability certificate and in this certificate the disability of the workman/Claimant was assessed at 40%. Compensation was assessed accordingly and the Claimant was held entitled to Rs. 1,41,883/- as compensation for the injuries suffered. In addition thereto, the Commissioner for Workmen's Compensation awarded Rs. 56,753/- as penalty under Section 4A of the Workmen's Compensation Act, 1923 (now Employees' Compensation Act, 1923) (henceforth 'the Act'). Appeals have been filed by both the employer and the employee/Claimant. 3. The employer has raised two issues, firstly that the disability was only to two fingers of the one of the hands and at best the disability to be assessed at 20%. The second argument of Shri Malay Kumar Bhaduri, Learned Counsel for the employer is that the penalty has been imposed without issuing any notice and, therefore, the award of penalty is illegal. 4. On the other hand, Smt. Indira Tripathi, Learned Counsel for the employee/Claimant submits that the compensation awarded is on the lower side. According to her, four fingers of the workman/Claimant have been affected and, therefore, the loss is 50% as per Item No.7 of Part II of Schedule I of the Act. 5. I shall first deal with the issue with regard to percentage of the disability which has to be taken into consideration. Shri Malay Kumar Bhaduri, Learned Counsel for the employer has argued that since the disability is of two fingers, the maximum disability could be 20% in terms of Item No.9 of Part II of Schedule I of the Act. Section 4 of the Act deals with amount of compensation. Clause (c) of sub-section (1) of Section 4 of the Act deals with permanent partial disablement resulting from the injury, which reads as follows: "4. Amount of compensation. Section 4 of the Act deals with amount of compensation. Clause (c) of sub-section (1) of Section 4 of the Act deals with permanent partial disablement resulting from the injury, which reads as follows: "4. Amount of compensation. – (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:– xxxxx xxxxx xxxxx (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; Explanation I. – Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries; Explanation II. – In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;" 6. Under sub-clause (i) of clause (c), the Act envisages that where an injury is specified in Part II of Schedule I then the disability has to be assessed in accordance with the Schedule alone. However, sub-clause (ii) mentions that where the injury is not specified in Schedule I then the percentage of compensation payable shall be proportionate to the loss of earning capacity as duly certified by a qualified medical practitioner. 7. In the present case, there is not only injury to two fingers. The fact of the matter is that two fingers have been amputated, but there are injuries to the other two fingers also. They have been however not amputated. Therefore, they cannot fall within Item No.7 because that deals with cases of amputation of four fingers. 7. In the present case, there is not only injury to two fingers. The fact of the matter is that two fingers have been amputated, but there are injuries to the other two fingers also. They have been however not amputated. Therefore, they cannot fall within Item No.7 because that deals with cases of amputation of four fingers. However, the matter is also not squarely covered under Item No.10 which only relates to the amputation of two fingers. This case relates to amputation of two fingers and injuries to two fingers. Therefore, this case is not squarely covered by the Schedule and, therefore, the opinion of the expert/medical practitioner is relevant and since the medical board has assessed the disability at 40%, I see no error in the award and uphold the finding relating to assessment of damages. 8. However, coming to the penalty, it has been repeatedly held by the Apex Court that penalty under Section 4A of the Act cannot be awarded by the Commissioner until and unless he issues notice to the other side. Therefore, the award of penalty has to be and is accordingly is set aside. 9. Having set aside the award of penalty, I am clearly of the view that the Learned Commissioner has gravely erred in awarding interest @ 9% per annum. The Act clearly laid down that the interest has to be awarded @ 12% per annum. There is no discretion to award lesser or higher rate of interest and this interest has to be awarded from the date when the accident took place. Therefore, I modify the impugned award in the following terms: the Claimant is held entitled to Rs. 1,41,883/- as compensation along with interest @ 12% per annum from the date when the accident took place, i.e., 7.2.2003 till payment/deposit of the amount. 10. Both the appeals are disposed of in the aforesaid terms.