G.N. Sabhahit, J.
1. This appeal by the employer is directed against these order dated 11th March, 1980 passed by the Commissioner for Workmen's Compensation & Asst. Commissioner, Dharwad Dn. Dharwad in No. N. FA 1/72, on his file, levying penalty of Rs. 1,000 and directing paying of interest at 6% per annum from 25th January, 1971 to 9th March, 1973, on the amount of compensation awarded.
2. In this case, the applicant was an employee under the appellant and he fell within the definition of the term 'workmen' under the Workmen's Compensation Act, (hereinafter referred to as 'the Act'), When he was carrying out his duties in the course of his employment, he fell down and sustained injuries on 7th March, 1971 at about 6.30 p.m. Thereafter, he served the employer with a notice dated 19th May, 1971 demanding Compensation of Rs. 11,800. He averred therein that he lost the us of both him legs and further that he had sustained injuries on his head. The employer, however, did not respond to the notice by depositing the amount before the Commissioner for Workmen's Compensation. On the other hand, he replied the notice on 9th June, 1971 demanding of the workman to get himself examined before a competent doctor and to produce a medical certificate. The workman presented the application for compensation before the Commissioner under the Act. Notice of the application before Commissioner was served on the appellant on 31st May, 1973 asking him to deposit the amount by 4th June, 1973. The employer, however, did not deposit the amounts within that time. Thereafter, the workman produced the medical certificate before the Commissioner on 20th June, 1973 and it us only in 9th July, 1973 that the employer deposited Rs. 9,800 before the Commissioner.
2(A) The workman, taking advantage of take fact that the amount was not deposited within thirty days from the due date, made an application before the Commissioner under S. 4A of the Act praying that the employer should be directed to pay penalty and interest. That was resisted by the employer and the Commissioner dismissed the application by his order dated 25th November, 1975. Aggrieved by the said order, the workman appealed to this Court in MFA. No. 158 of 1976 and this Court by its order dated 26th February, 1979 set aside the order and remitted the case back with a direction that the Commissioner should determined when the compensation fell due and whether there was any justification for the delay in depositing the amount, after giving opportunity to both the parties. Thereafter, the Commissioner fixed the case for hearing and the parties and Counsel were present and Counsel argued the matter before the Commissioner and the Commissioner, by his order dated 11th March, 1980, taking into consideration the arguments advanced before him, levied penalty of Rs. 1,000 on the employer and directed that he shall pay interest at 6% per annum on the compensation amount from 21st May, 1971 till 9th July, 1973.
It is against that order that the present appeal in instituted.
3. The learned Counsel appearing for the appellant strenuously urged before us that the Commissioner for Workmen's Compensation did not follow the direction given by the Court, as he did not give opportunity to the parties to adduce additional evidence and that he was not justified in levying penalty arbitrarily. He also contended that he could not levy interest on the compensation amount as is done by him.
4. On the other hand, the learned Counsel appearing for the respondent urged supporting the orders possessed by the Commissioner.
5. The sole point, therefore, that arises for our consideration in this appeal is : Whether the Commissioner has followed the direction givens by this Court in the remand order
6. It is seen from the impugned order that the parties and the Counsel were present and the Counsel urged the matter before the Commissioner. It is no doubt true that this Court had given direction that if the employer wanted an opportunity to adduce additional evidence it should be given. But, it is clear from the order that the employer never demanded of the Commissioner opportunity to adduce additional evidence. On the other hand, he preferred to argue the matter on the basis of material already on record and the same is considered by the Commissioner. That being so, the learned Counsel for the appellant cannot be heard to say at this juncture that he was not given opportunity to adduce additional evidence. One may lead a horse to the pond but one cannot make it drink. No doubt, this Court directed that if the employer to choose to adduce additional evidence it should be given. But, it was for the employer to choose to adduce additional evidence or not to adduce additional evidence. On the facts of the case, it is clear and we are satisfied that no such demand was made by the employer. That being so, the contention that no such opportunity was given by the Commissioner cannot be countenanced by us at this stage.
7. The learned Counsel for the appellant invited our attention to a decision of this Court in the case, Jayamma v. Executive engineer, P.W.D. (1981) 2 Kar. L.J. 309 wherein a Division Bench of the Court has made the followings observation regarding S. 4A(2) of the Act thus :
'The first part of the sub-section authorised the Commissioner to issue a direction to recover simple interest at the rate of 6 per cent per annum on the amount of arrears of compensation not deposited within one month from the date it fell due. The second part of the sub-section also authorise the Commissioner to recover by way of penalty a further sum not exceeding 50 per cent of such arrears. Both these recovery are subject to the condition that there is no justification for the delay in depositing the amounts. In other words, if there is a delay in depositing the amount for more than ones month, it is for employers to show sufficient cause to the satisfaction of the Commissioner explaining that delay.'
8. There cannot be any quarrel about the proposition of law laid down be the Division Bench of the Court. That is what was done by this Court when it remanded the case earlier and, as explained above, the employer has not chosen to adduce any additional evidence and the Counsel has chosen to argue the matter on the material already on record.
9. The learned Counsel for the appellant next argued that the 'due date' should be, on the facts of the case, the date on which the workman produced the medical certificate, i.e., on 20th June, 1973. The learned Counsel invited our attention to S. 4 of the Act, which explains the basis for compensation. He submitted unless the employer was satisfied about the injuries, he could not deposit the compensation. But, there is a specific statutory provision in the Act on this aspect. S. 11(1) of the Act answers the contention raised before us by the learned Conceal for the appellant. It reads :
'Where a workman has given notice of an accident, he shall, if the employer, before the expiry of three days from the time at which service if the notice has been effected offers to have him examined free of charge by a qualified medical practitioner, submit himself for such examination, and any workman who is in receipt of a half-monthly parent under this Act shall, if so required submit himself for such examination from time to time.'
10. Thus it is clear that the Workmen's Compensation Act being one for the benefit of the workman, the Legislature, in its wisdom, has evolved a method for the employer to satisfy himself about the injury sustained by the workman. In case he doubts bona fides of its workman, he may get him examined by a competent medical practitioner free of cast. Thus, if the employer in the instants case was not satisfied with the averment made by the workman in the notice, he should have resorted to that remedy contemplated under S. 11(1) of the Act. He could not demand of the workman a medical certificate. It is precisely to avoid such a contingency that S. 11(1) of the Act is incorporated in the Statute. Without more, therefore, the contention of the learned Counsel for the appellant that the due date on which the amounts fell due should the date on which the medical certificate was produced by the workmen, cannot be sustained.
11. Moreover, S. 11(1) of the Act contemplates that the employer shall offers the workman to get him examined fee of charge by a qualified medical practitioner within three days from the time when service of notice is effected. The employer has not raised his little finger before the expiry of three days of the service of the notice. He has not called upon the workman as contemplated under S. 11(1) of the Act to get him examined free of charge. Hence, the contention of the learned Counsel, appearing for the appellant in that behalf is rejected.
12. Speaking about the due date to pay compensation the Supreme Court of India, in Pratap Narain Singh & Co. Shrinivas Sabata [1976-I L.L.J. 235 at 237] at para 7 of the judgment, has observed :
'S. 3 of the Act deals with the employer's liability for compensation, Sub-s. (1) of that section provides that the employer shall be liable to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment. It was not the case of the employer that the right to compensation was taken away under sub-s. (5) of S. 3 because of the institution of a suit in a Civil Court for damanges, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner's order dated May 6, 1969, under S. 19 ....'
There is no dispute before us that the injury was caused to the workman in an accident arising out of and in the course of his employment. That being so, the due date of payment of compensation fell on the date of accident. It was the duty of the appellant under S. 4A(1) of the Act to pay compensation. The employer has obviously failed to pay compensation within one month from the date it fell due.
13. S. 4A(3) of the Act states :
'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 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.'
14. On the facts of the present case, it is clear that no justification was made out for the delayed payment by the employer. That being so, the Commissioners was entitled not only to levy interest but also penalty. He had a discretion in fixing the penalty. It shall not exceed fifty per cent of the total compensation. The compensation in this case is Rs. 9,880. The Commissioner, in his judicial discretion, has levied penalty of only Rs. 1,000 which in our considered view is quite just and proper. As pointed out by this Court in the ruling quoted above he also the right under S. 4A(3) to levy interests, which he has done. That being so, there is no ground to interfere with the order of the Commissioner.
15. In the result, we are constrained to hold that the appeal is devoid of merits and is liable to be dismissed and we dismiss the same.
The cross objections also are dismissed as devoid of merits.
16. On the peculiar facts of the case we make no order as to costs of this appeal and the cross-objections.