JUDGMENT Sanjay Karol, ACJ. (Oral) - In these Appeals, so filed under the provisions of the Workmen''s Compensation Act, 1923 (Hereinafter referred to as the Act), both Bhagat Ram (claimant) and Hemender Kumar Gupta (employer) have assailed same award dated 19.2.2007, passed by the Commissioner under the Workmen''s Compensation Act, Karsog, District Mandi, H.P., in File No. 4, titled as Sh. Bhagat Ram vs. Sh. Hemender Kumar Gupta. 2. Appeal filed by the claimant, being FAO No. 86 of 2007, titled as Bhagat Ram vs. Hemender Kumar Gupta, stands admitted on the following substantial questions of law: - "1. Whether the judgment of the Workmen Compensation Commissioner, can be sustained, assessing the liability of the Petitioner against the medical evidence produced on the record. 2. Whether the assessment of the amount awarded to the Petitioner is in accordance with the proved wages and the Workmen Commissioner committed an error in relying solely on the evidence of the respondent?" 3. Appeal filed by the employer, being FAO No. 107 of 2007, titled as Hemender Kumar Gupta vs. Bhagat Ram, stands admitted on the following substantial question of law:- "1. Whether the Workmen Commissioner has committed irregularity by not deducting/adjusting the amount paid by the appellant in lieu of compensation and for treatment to the workmen while calculating the compensation, particularly when compensation has been calculated for 100% disability of index finger of workmen, whereas, the disability caused to the workmen is only 50%?" 4. Having heard learned counsel for the parties, primarily following issues arise for consideration in the instant Appeals:- 1. As to whether findings returned by the Commissioner Workmen with regard to the nature of workmen''s engagement, employment and deployment are borne out from the record or not? 2. Whether the Commissioner Workmen should have applied the factor of 14% so prescribed in Schedule I, Part II or should have applied Schedule I, Part II, sub Clause 4, considering the nature of injury suffered by the claimant? 3. Whether the disability, functional or otherwise, is to the extent of 50% or 100% considering that workman cannot continue to discharge the duties which he was so performing prior to the date of the incident in question? 4. 3. Whether the disability, functional or otherwise, is to the extent of 50% or 100% considering that workman cannot continue to discharge the duties which he was so performing prior to the date of the incident in question? 4. Whether the employer is liable to pay, if at all, the amount of interest and penalty on the compensation so awarded by the Commissioner Workmen and such sum which may be enhanced by this Court? 5. Certain facts are not in dispute. Claimant was working as a workman with the employer. While on duty and in the course of discharge of his duties, claimant sustained injury as a result of an accident. Fault is not attributable to him. Accident took place on 21.8.2004 while working on the machine (stone crusher) installed by the employer. Immediately claimant was brought by the employer to the Indira Gandhi Medical College & Associated Hospital, Shimla, for treatment, where he was hospitalized for few days. His index finger had to be amputated. Medical Board so constituted to examine the disability opined such percentage to be 50%. Dr. R. K. Gupta (PW-3) has proved certificate (Ext.PW-3). Quite apparently, claimant cannot use the left hand in view of amputation of left hand index finger and fixed extension deformity on tissue in lateral aspect of the palm. This Court has also seen the claimant and quite apparently the hand cannot be used for performing any job. 6. It was pointed out that the claimant was actually not discharging the duty of a ''loader'' on the crusher/machine but that of a ''munshi/clerk''. But then this fact is not borne out from the record. Also Commissioner Workmen has found the claimant to have been employed and engaged for discharging the duties on the machine. 7. In his testimony, claimant Bhagat Ram (PW-1) does state that even though the disability certificate so issued by the Medical Board is to the extent of 50% but in effect, he is not able to discharge and perform such duties as he was so performing immediately prior to the occurrence of the accident. 8. It is a matter of record that the employer has also stepped into the witness box and from his testimony (RW-1), nature of employment and engagement of the claimant as workman cannot be disputed. Also he stood disengaged subsequent to the occurrence of the accident. 9. 8. It is a matter of record that the employer has also stepped into the witness box and from his testimony (RW-1), nature of employment and engagement of the claimant as workman cannot be disputed. Also he stood disengaged subsequent to the occurrence of the accident. 9. Now significantly, there is no material on record indicating that the claimant was engaged to discharge the duties of a ''munshi/clerk''. As such having appreciated the material on record, this Court is of the view that the claimant was employed and engaged to discharge the duties of a crusher operator on the machine and as a resultant to the accident, cannot continue to perform the same with a single hand. 10. There is also not much dispute with regard to the wages. A sum of Rs. 90/- per day was being paid to the claimant. 11. It is a matter of record that the Commissioner Workmen, on the basis of pleadings of the parties, framed following issues for consideration: "1. Whether the Petitioner was deployed as Driver/operator/servant with/by the respondent No. 1 in his stone crusher at the monthly wages of Rs. 5000/-excluding Rs. 20/- per day towards fooding etc. and comes within the definition of workmen under the W.C. Act? (OPP) 2. Whether the Petitioner received/sustained injuries while working on the said stone crusher and lost his fingers of his left hand leading to permanent disablement and is therefore entitled to receive Rs. 4,87,056/-? (OPP) 3. Whether the Petitioner was employed as Munshi on daily wages @ Rs. 90/- per day by the respondent No. 1? (OPR) 4. Whether the Petitioner himself took the risk and lost his one finger of left hand and as such the Petitioner does not fall in the definition of workmen and therefore the Petitioner is not entitled for any compensation from the respondent No. 1? (OPR) 5. Relief." 12. Issues No. 1, 2 and 3 were decided partly in favour of the claimant, for he was held to be gainfully employed, on daily wages, payable @ Rs. 90/- per day unlike his claim of Rs. 5000/- per month and issue No. 4 was also decided in his favour for it was found that the cause of accident was not a result of mistake or negligence on the part of the claimant. 90/- per day unlike his claim of Rs. 5000/- per month and issue No. 4 was also decided in his favour for it was found that the cause of accident was not a result of mistake or negligence on the part of the claimant. Thus the Commissioner Workmen held the claimant entitled to compensation in the following terms: 1 Monthly wages of the Petitioner 90 X 30 = 2700.00 2 Age of the injured. (As per birth certificate) 44 years. 3 Relevant Factor 172.52 Total compensation (As provided under section 4(1)(b) An amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor. OR An amount of Ninety thousand rupees, which ever is more. 2700 X 60/100 =1620.00 1620 X 172.52 = 279482.40 Percentage of loss of earning capacity quantified at (As per schedule I Part II) 14.00% Total compensation 279482 x 14/100 = 39127.50 13. Wages of the claimant is not in dispute. He was paid a sum of Rs. 2700/- per month. At the time of accident he was 44 years of age. 14. The expression ''total disablement'' has been defined in Section 2(1)(1) of the Act as under: "(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;)" (Emphasis supplied) 15. The expression ''partial disablement'' is defined under Section 2(1)(g) of the Act, which also reads as under: "(g) "partial disablement" means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time; provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement" 16. By virtue of Section 3 of the Act, liability to pay compensation to the workman is that of the employer. Clause (b) of sub-section (1) of Section 3 of the Act carves out an exception and that being in respect of any injury, not resulting into death or permanent total disablement, caused by an accident which is directly attributable to the workman under the influence of drugs or alcohol; disobedience to comply with the orders for securing the safety of the workmen; or willful removal/disregard of the workman of any safety guard provided for the purpose of securing the safety of workmen. 17. In the instant case, exception so carved out in Section 3 of the Act is not applicable. Thus liability to pay is squarely that of the employer. 18. The question which arises for consideration is as to how the amount of compensation is to be determined. Mr. B.P.Sharma, learned Senior Counsel, while inviting attention of the Court to the provisions of Clause (b) of sub-section (1) of Section 4 and Schedule I, Part II and Schedule IV of the Act contends that the Commissioner Workmen, correctly determined the compensation under the Act. Whereas, on the other hand, Mr. R.K. Sharma, learned Senior Counsel, relying upon the very same provisions contends that Note 71 so inserted in Part II of Schedule I specifically prescribes that "complete and permanent loss of the use of any limb or member referred to in the Schedule shall be deemed to be the equivalent of the loss of that limb or member". 19. Now Sr. No. 4 of Part II of the said Schedule reads as under: "4. Loss of a hand or of the thumb and four fingers of one hand or amputation from 11.43 cms. 19. Now Sr. No. 4 of Part II of the said Schedule reads as under: "4. Loss of a hand or of the thumb and four fingers of one hand or amputation from 11.43 cms. below tip of olecranon" The statute defines the percentage of the loss of earning capacity as a result of loss of hand to be 60%. 20. In the instant case, even though the Doctors have opined the disability of the claimant, permanent in nature, to be 50%, but however, if one were to apply the principle of law laid down by the Apex Court in Pratap Narain Singh Deo vs. Srinivas Sabata & another, (1976) 1 SCC 289 (Four Judge), it can be said that the Petitioner has suffered total disablement. In the said decision, the Court observed that: "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 a nature as to cause permanent disablement to the respondent, and the question for consideration is 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 the 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 which 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 the arm was from 8'' from tip of acromion to less that 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." 21. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established." 21. In a case where leg of a driver as a result of accident had to be amputated, the Apex Court in S. Suresh vs. Oriental Insurance Company Limited & another, (2010) 13 SCC 777 held loss of disability to be 100% by equating the disability with the earning capacity and not to be the one so certified by the Medical Board. 22. A Coordinate Bench of this Court in Puran Dutt vs. H.R.T.C., 2006 (3) Shim.LC 222 has also held to similar effect. 23. If one were to peruse the statement of the Doctor (PW-3), it is quite apparent that the claimant cannot use whole of his hand. Thus, this court is of the considered view that the principle of law laid down by the Apex Court in Pratap Narain Singh Deo (supra) is squarely applicable to the instant case. With the amputation of one finger and the tissues of the hand being damaged, resulting into the hand not being used for the discharging of duties, which the claimant was otherwise performing prior to the occurrence of the accident, disability, functional in nature, is actually to the extent of 100%. He cannot operate the machine any longer. Also his services were retrenched by the employer. He cannot pursue any other vocation, for he is not educated. He can also not till his agricultural land. Thus, this Court is of the considered view that the Commissioner Workmen erred in not correctly appreciating and applying the law to the attending facts and circumstances of the case. 24. Claimant is thus entitled to compensation, higher than what stands awarded by the Commissioner Workmen, in the following terms: 1 Monthly wages of the workman Rs. 90 X 30 = Rs. 2700.00 2 Age of the injured 44 years. 3 Relevant Factor 172.52 Total compensation (As provided under section 4 (1)(b) An amount equal to 60% of the monthly wages of the injured workman multiplied by the relevant factor. OR An amount of Ninety thousand rupees, which ever is more. 2700 X 60/100 = Rs. 1620.00 1620 X 172.52 = Rs. 279482.40 4 Disability, functional in nature 100.00% 5 Principal amount of compensation 279482 x 100/100 = Rs. 279482/- 25. OR An amount of Ninety thousand rupees, which ever is more. 2700 X 60/100 = Rs. 1620.00 1620 X 172.52 = Rs. 279482.40 4 Disability, functional in nature 100.00% 5 Principal amount of compensation 279482 x 100/100 = Rs. 279482/- 25. Now in the instant case, the claimant was not paid the amount within the stipulated period. No doubt he was taken to the hospital and undisputedly expenditure of a sum of Rs. 16,000/- was incurred by the employer for treatment of the claimant and charges for maintenance of the attendant, which amount Sh. R.K. Sharma, learned Senior counsel fairly states should be deducted from the principal of the amount of compensation so determined supra. Thus the amount of compensation payable by the employer to the claimant would be Rs. 2,79,482 - Rs. 16,000 = Rs. 2,63,482/-. 26. The next issue which arises for consideration is whether the claimant is entitled to interest on the aforesaid amount and as to whether the employer is liable to pay any penalty or not'' 27. Penalty and interest has to be paid from the date of default as is so held by the Apex Court in Oriental Insurance Company Limited vs. Mohd. Nasir & another, (2009) 6 SCC 280 . 28. As has already been held by the Apex Court in Mohd. Nasir (supra) the amount which falls due as compensation is required to be deposited by the employer with the Commissioner Workmen. It could have also been paid to the workman which was not so done. In fact, no amount was paid to the claimant. Only an amount of Rs. 39,127/-, so awarded by the Commissioner in terms of the impugned Award was deposited with the Commissioner Workmen Compensation, Karsog on 17.3.2007 i.e. within one month from the date of passing of the award. As such claimant would be entitled to simple interest @ 12% in terms of Section 4-A(3)(a) of the Act on a sum of Rs. 2,24,355/- (Rs.2,63,482 minus Rs. 39,127) from 21.9.2004 i.e. one month after the date of the accident, till today (12 years, 11 months & 10 days) which comes to Rs. 3,48,510/-. 29. As such, the total amount of compensation, due and payable to the claimant on account of compensation claim including the simple interest would be Rs. 2,63,482 + Rs. 3,48,510 = Rs. 6,11,992/-. But the issue of penalty is still left. 30. 3,48,510/-. 29. As such, the total amount of compensation, due and payable to the claimant on account of compensation claim including the simple interest would be Rs. 2,63,482 + Rs. 3,48,510 = Rs. 6,11,992/-. But the issue of penalty is still left. 30. In the instant case, there was no fault on the part of the workman in claiming compensation. Also there is no justification on the part of the employer exempting him from depositing the amount of compensation. As such, this Court is of the considered view that the claimant shall also be entitled for penalty @ 30% on the aforesaid amount of Rs. 6,11,992/-which comes to Rs. 1,83,598/-. 31. Thus, the total amount of compensation to which the claimant shall be entitled to would be Rs. 2,63,482 + Rs. 3,48,510 + Rs. 1,83,598 = Rs. 7,95,590/-. The aforesaid amount of Rs. 7,95,590/- shall be paid by employer Hemender Kumar Gupta. 32. Mr. Arun Kumar, learned counsel states that the employer shall deposit the amount within a period of four months from today. Ordered accordingly. Substantial questions of law are answered accordingly. Both the Appeals stand disposed of as also pending applications, if any.