ORDER C.A. Rahim, J.
1. All these appeals are taken together as common question of facts and laws are involved.
2. These appeals have been preferred against the judgment and order of the Commissioner, Workman Compensation, U.P. at Mirzapur.
3. In First Appeal Order No. 628 of 1981 the Commissioner for Compensation passed award dated August 28, 1981 in favour of D.P. Baranwal an employee of Obra Thermal Power Station, U.P. State Electricity Board, Obra, Mirzapur to the extent of Rs. 32,340/- with interest @ 6% from the date when it is due along with 50% penalty amounting to Rs. 16, 170/-
4. In First Appeal from Order No. 629 of 1981 the Commissioner for Compensation passed award dated August 12, 1981 in favour of Marwari, a Contractor's employee of Obra Thermal Power Station, U.P. State Electricity1 Board, Obra, Mirzapur to the extent of Rs. 5040/- with interest at the rate of 6% from the date when it is due . He also allowed Rs. 2520/-towards penalty @ 50%.
5. In First Appeal from Order No. 630 of 1981 an award was passed on August 12, 1981 allowing Rs. 5880/- as compensation with 6% interest from the date when it is due to Qamaruddin, an employee of Obra Thermal Power Station., U.P. Electricity Board Obra Mirzapur. He also allowed Rs. 2940/- towards penalty @ 50% to the claimant.
6. In First Appeal from Order No. 631 of 1981 an award was passed on August 12, 1981 in favour of Sri Sukru, an employee of Obra Thermal Power Station, U.P. Electricity Board, Obra, Mirzapur. Compensation of Rs. 3822/- was allowed with 6% interest from the date when it is due. Penalty @ 50% was imposed for which the claimant was allowed to receive a sum of Rs. 1911.50.
7. In First Appeal from Order No. 632 of 1981 an award was passed on August 12, 1981 in favour of Dukhi Ram an employee of Obra Thermal Power Station, U.P. Electricity Board, Obra, Mirzapur Compensation of Rs. 3931.20 with interest @ 6% amount of Rs 1965.60 was imposed towards penalty at the rate of 50% to be paid to the claimant.
8. In First Appeal from Order No. 633 of 1981 an award was passed on August, 12, 1981 in favour of Habibullah Ansari, an employee of Obra Thermal Power Station, U.P. Electricity Board, Obra, Mirzapur. He was allowed to receive compensation of Rs. 18, 114/- along with 6% interest from the date when it is due. A further sum of Rupees 9072/- was imposed as penalty @ 50% to be received by the claimant.
9. All these awards were passed with cost and with a direction to pay it within 30 days from date of order.
10. Obra Thermal Power Station, U.P. Electricity Board, Obra, Mirzapur has filed all these appeals against the order of the Commissioner, Workman Compensation, passed on different dates allowing compensation to the claimants with interest and penalty for default under Section 4(a) of the Workmen's Compensation Act, 1923 as amended in 1959.
11. In First Appeal from Order Nos. 628 of 1981 and 631 of 1981 following questions have been raised;
1. Whether the Commissioner has power to initiate proceeding suo motu?
2. If the injury was partial permanent disability and compensation paid was arbitrary?
3. Whether the penalty @ 50% and interest @ 6% can be imposed according to law?
12. In First Appeal From Order Nos. 629 of 1981 and 633 of 1981 following questions have been raised :
1. Whether the Commissioner can waive the period of limitation within which application claming compensation should have been filed under Section 10 of the Workmen's Compensation Act?
2. Whether the penalty @ 50% and interest @ 6 % can be imposed according to law?
13. In First Appeal from Order Nos. 630 of 1981 and 632 of 1981 following common question has been raised:
1. Whether the penalty @ 50% and interest @ 6% can be imposed according to law?
14. Taking up the questions whether the Commissioner has power to initiate proceedings suo motu and whether he can waive the period of limitation as mentioned under Section 10(1) of the Workmen's Compensation Act, it appears that Section 10(1) of the Workmen's Compensation Act ('the Act' in short) envisages that the claimant -workman should give notice followed by a claim for compensation within two years of the occurrence. The fifth proviso of that Section runs as follows :
"Provided further that the Commissioner may entertain and decide any claim to compensation in any case not withstanding that the notice has not been given, or the claim has not been preferred in due time as provided in this sub-section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause".
15. Sri K.P. Agarwal, appearing for the respondents has submitted that the word" Entertain" means adjudication and not initiation of the proceeding. He has referred the case of Laxmi Ratan Engineering Works v. Assistant Commissioner Sales Tax, AIR 1968 SC 488 and the case of Hindustan Commercial Bank Ltd. v. PunnuSahu, AIR 1970 SC 1384. It has been held that the word entertained appears in the provisio means to adjudicate upon or proceed to consider on merits and does not refer to initiation of proceedings.
16. In the proviso it has been mentioned that the Commissioner can also decide the claim if no notice was given in due time on sufficient reason.
17. Further relaxation to the said condition has been provided in the case of Fakira Gram Rice Mills v. Ramu Indu AIR 1950 Assam 188, wherein it has been held (at page 189) :
" Proviso to Section 10 lays down that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim if the employer had knowledge of the accident from other sources at or about the time when it occurred. From the fact that the injured person was removed to the hospital it is reasonable to suppose that the management of the mill then knew how the accident occurred........ In these circumstances we do not think absence of notice can be regarded as a bar to the entertainment of the claim."
18. In First Appeal from Order No. 628 of 1981 it appears that the employer arranged for the treatment and accordingly deducted Rs. 1530.56 towards costs of treatment which was disallowed by the Commissioner. But from the said fact it appears that they had notice of the accident and arranged for the treatment of the claimant. In First Appeal from Order No. 631 of 1981 the claimant lost two fingers during the course of his employment. So it cannot be said that the employer had no notice of the said accident.
19. In the case of Chiman Surakhia Vasava v. Ahmad Musa Ustad, 1987 (54) FLR 85, it was held:
"As provided under Section 10A of the Act, he (Commissioner) can even act on information received by him from any source regarding fatal accident and call upon the employer to explain as to under what circumstance death had occurred. He can also ask for the explanation of the employer whether he is or is not liable to deposit the compensation on account of the death. This provision indicates that he can even act suo motu. In our country when most of the labour population suffers from the curse of illiteracy and poverty and is incapable of entering into legal fight with the employer, it is rather his (Commissioner's) duty to remain alert and vigilant wherever necessary with a view to see that the provisions of the Act are strictly enforced, he must act suo motu."
"From the aforesaid discussion it should be clear that the duties cast upon and functions to be performed by the Commissioner are radically different than that of Civil Judge, Senior Division. The powers and duties of the Commissioner call for vigilant approach. He is required to see that the miseries of injured workmen or the dependents of the deceased workmen are mitigated and their claims are decided cheaply and expe-ditiously. He is required to see that the claims of the injured workmen or their dependents are not frustrated on account of technicalities of the provisions of the Civil Procedure Code and that of the Evidence Act. He is not supposed to find faults with the pleadings of the parties."
20. The objects and reasons of that piece of legislation has been narrated in the following words:
"General principle is that compensation should ordinarily be given to workmen who sustain personal injuries in accidents arising out of and in the course of their employment. "
21. In First Appeal Form Order No. 628 of 1981 the accident occurred on November 22, 1978 and the deposit of money by the appellant on the basis of loss of income to the extent of 20% was made on October 22, 1980. In First Appeal Form Order No. 631 of 1981 the date of the accident was June 21, 1978. Compensation was deposited by the appellant on October 22, 1980. Besides that the employer did not issue notice to the Commissioner under Section 10(b) of the Act. No explanation has been offered by the appellant for the delay in depositing the compensation amount on the basis of the medical report and also for not informing the Commissioner as required under the Act. So the appellant having defaulted in both the counts cannot claim exemption on the ground that no claim can be made for non-compliance of Section 10(i) of the Act.
22. In Chiman Surakhia Vasava case (supra) the Commissioner rejected the application of the injured workman for compensation solely on the ground that there was no sufficient proof to show that the workman was employed either by Respondent No. 1, truck owner or Respondent No. 3, quarry owner. The workman while engaged in lifting the stones in the quarry belonging to Respondent No. 3 and filling the vStones in the truck belonging to Respondent No. 1 a stone accidentally fell on his hand as result of which he received injury on his left hand and two phalanges of the left index finger were crushed and the same was amputated later on. While dealing with the matter the Gujarat High Court held that provisions for taking suo motu proceeding by the Commissioner under Section 10A of the Act be also extended to that type of case.
23. The appellant is a Corporation, an organised body with legal cell, when violates any provisions of law, it can be termed as deliber-
ate. On the other hand when an employee, a lay man, does not perform any technicality required by law it should be regarded as an act of ignorance and not deliberate. The Commissioner has power to waive and- or to proceed with the claim. I do not find any illegality about the initiation of proceeding suo motu, having received the information of the accident when deposit of compensation on behalf of the appellant was m ade after couple of years.
24. In First Appeal From Order No. 629 of 1981 the accident occurred on September 6, 1975. The appellant deposited the amount on April 22, 1980. Application claiming compensation was filed on November 10, 1980. In first Appeal from Order No. 633 of 1981 the accident occurred on October 30, 1975. The compensation was deposited by the appellant on September 11, 1980, An application for claiming compensation was filed on May 15, 1981.
25. Sri D.K. Singh. appearing for the appellant has submitted that the Commissioner has no power to waive the delay in filing the application. He also did not pass any order to show that he ever considered the said matter and waived it.
26. The Compensation Commissioner was not seisin of the matter as to that of a Civil Court. Rather under Section 19 of the Act the jurisdiction of Civil Court has been barred to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Commissioner or to enforce any liability incurred under this Act. In Rule 41 some of the provisions of the Civil Procedure Code has been adopted to dispose of the claim petitions. The proviso to the said Rule runs as follows:
"(a) For the purpose of facilitating the application of the said provisions the Commissioner may construe them with such alteration not affecting the substance thereof, as may be necessary or proper to adapt them to the matter before him;
(b) The Commissioner may, for sufficient reasons, proceed otherwise than in accordance with the said provisions, if he is satisfied that the interest of the parties will not thereby be prejudiced."
27. Provisions for filing a claim petition within two years should not be held to be mandatory in view of the fact that Workmen's Compensation Act is a social legislation and when the provision of Section 4A was not followed by the Employer in that circumstances it should be held as directory. In a case where the employer applicant has himself defaulted in making payment for about 5 years without showing any cogent reason thereof and also defaulted in forming the Commissioner as to the accident caused to the workman cannot take up the plea which appears to be highly technical in the matter of granting compensation. When the Commissioner, not being a Civil Court, has accepted the application and proceeded with it, it should be deemed to have waived the embargo of filing application within two years. In both the cases (F.A.F.O, Nos. 629 of 1981 and 633 of 1981) applications were filed within 7/8 months of the deposit. Sri K.P Agarwal has contended that the workman were always under the impression that due and ultimate compensation would be paid by the employer but when not paid after lapse of 5 years and when they came to know the actual amount of compensation deposited they filed the application. The reason seems to be befitting with the situation and I do not consider that this technical reason, when an employer itself was a defaulter, would be bar to grant due and ultimate compensation to the respondents.
28. The next question is whether the penalty at the rate of 50% and interest at the rate of 6% imposed by the Commissioner is arbitrary. Section 4A(1) provides that compensation under Section 4 shall be paid as soon as it falls due. In the case of Pratap Narain Singh Deo v. Sriniwas Sabata, (1976-I-LLJ-235) the Supreme Court rejected the contention that the compensation had not fallen due until it was settled by the Commissioner. It was also held that the employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident arising out of and in the course of employment.
29. In the case of Pakalapati Venkatanarasayamma v. Susarla Subba Laxmi 1986 Lab 1C 1389, it was held that the date of injury or death, and not the date of determination of compensation by the Commissioner, is the starting point of the one month period postulated in Section 4A(3) for payment of compensation.
30 In the case of Ram Lal v. Commissioner 1989 Accident Claim Journal 1014,it has been held that under Section 4A(3), in case of delay in deposit, the employer has to show sufficient cause for delay to the satisfaction of the Commissioner. If the Commissioner finds the cause shown to be not sufficient, he must direct the . employer to pay interest and penalty as laid down in Sub-section (3).
31. In these appeals it appears that there was delay of about 2-5 years in depositing the compensation. There was no explanation about the delay . Section 4A(3) provides that 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 simple interest at the rate of 6% per annum on the amount due together with a further sum not exceeding 50% of such amount shall be recovered from the employer by way of penalty. In the instant case I find that since the amount of compensation was not paid within one month from the date of accident the Commissioner was right in imposing penalty as well as the interest to the appellant in all the cases and I do not find any infirmity in the order which requires interference.
32. With regard to question 'If the injury was partial permanent disability and compensation paid was arbitrary', in First Appeal From Order Nos. 628 of 1981 and 631 of 1981, the appellant has raised the question of legality in awarding compensation on the basis of hundred per cent loss of earning capacity.
33. In First Appeal From Order No. 628 of 1981 it appears that the claimant suffered loss of grip of both hands. The medical report considered that the loss of earning capacity was 20%. The Commissioner did not accept the medical report on the ground that no original copy of the report was submitted and that it was not duly proved. But his opinion was that it was hundred per cent loss of earning capacity as the claimant being operator firmness of grip of both hands was necessary. A plea was taken before him that by filing an application on August 6, 1981 he accepted the compensation money deposited by the appellant on the basis of the medical report. But the said plea was rightly rejected in view of S. 17 of the Act.
34. Sri. D. K. Singh appearing for the appellant has submitted that there was no reason to grant compensation on the basis of hundred per cent loss of earning capacity which was illegal and arbitrary. Learned Commissioner has passed the award on the basis of Schedule I, Part I which indicate hundred per cent loss of earning capacity "for the loss of both hands."
35. In case of Raghuraj Singh v. Divisional Superintendent Northern Railways 1966 All LJ 1019, it was held that when a limb becoming totally unusable it means "loss" Complete and permanent loss of vision of an eye means "loss of an eye".
36. So the loss does not mean always an amputation of limb. If the working capacity of a particular limb is lost due to accident it can be said that that particular limb is lost. It can be partial or permanent. In the instant case when firmness of the grip is lost it does not mean that working ability of both the hands was totally lost. So it should not be designated as permanent total disability but it should be termed as permanent partial disability.
37. Section 4(1)(c)(ii) provides that for a particular injury not specified in Schedule I, loss of earning capacity has to be determined in such cases on the evidence adduced by the parties.
38. It runs thus :
"(c)(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."
39. In Rahuraj Singh's case (supra) it was held (atpage 1021 of All LJ):
"If it is an injury specified in part II then only the percentage noted in the schedule is payable. No evidence is relevant to establish percentage of loss of earning capacity. If injury is not specified in Part II of Schedule I, results, loss of earning capacity has to be ascertained on evidence."
40. In the instant case the only evidence which was brought before the Commissioner was the medical report but the said report was discarded by the Commissioner. No evidence is forth coming from the other side to prove or disprove the loss of earning capacity of the re-
spondent. In Schedule I, Part II since the said injury was not mentioned it was necessary to rely upon the evidence to assess the compensa tion but it was done in that way. In Entry No. 4 of Part II of Schedule 160% loss of earning capacity is mentioned for loss of hand and it cer tainly means loss of one hand. I have already observed that there was no permanent total dis ability in either of the hands. If there was com plete loss of working capacity of one hand it can come within the ambit of Entry No. 4. More-
over I find that partial working ability of both hands was lost. There is one aspect which needs consideration . Sri Singh has argued that the workman was not retrenched for the loss of working capacity but he was still under employment. Considering all these facts together I find that 50% loss of earning capacity would be proper percentage to determine the compensa tion .
41. So, considering all these points of law I find that the Commissioner has suo motu power to grant compensation. He is not bound to accept the compromise under Section 17 of the Act and he can dispose of the matter even if no notice or application claiming compensation under Section 10(1) was filed or filed at a later stage, when the employer is guilty of not following the provisions of Section 4A and Section 10B of the Act.
42. The period of two years mentioned under Section 10(1) is not mandatory but directory where liability of the employer under Section 4A of the Act is not discharged in time. Considering the facts and circumstances of this case it should be treated that the Commissioner has waived the said period of limitation.
43. When the compensation was not paid within one month from the date of the accident i.e., when it is due, imposition of penalty and interest are not arbitrary and are quite in conformity with Section 4A of the Act.
44. The Commissioner was not right in awarding compensation on the basis of 100% loss of earning capacity when firmness of grip of both hands were not totally lost.
45. Considering the above observations, First Appeal From Order No. 628 of 1981 is allowed in part. Award of compensation passed by the Commissioner on August 8, 1981 is modified to the extent that the appellant shall be entitled to receive compensation on the basis of 50% loss of earning income. The penalty and interest imposed by the Commissioner in this case are hereby affirmed.
46. First Appeal From Order Nos. 629 of 1981, 630 of 1981, 631 of 1981, 632 of 1981 and 633 of 1981 are hereby dismissed with costs. The order of compensation along with 6% interest from the date of the accident i.e. from the date when it is due along with 50% of the compensation towards penalty, as imposed by the Commissioner, are hereby confirmed. The compensation computed at the above rate be paid to the respective claimants respondents within 30 days from this date.
47. With the above observations, all these appeals are hereby disposed of.
Order accordingly.