A.N. Verma, J.
1. These two appeals are directed against an order passed by the Commissioner for Workmen's Compensation, Etawah dated 6,4.1977, awarding a compensation of Ks.9676.80 to the appellant MohanLal together with interest at 'he rate of six per cent from 8th October, 1073 up to the date of payment. Appeal No. 363 of 1977 is by Mohan Lal, the workman, while Appeal No. 216 of 1977 is by the employer, Madan Mohan Verma. These appeals have been filed under Section 30 of the Workmen's Compensation Act. Roth the workman as well as the employer seem to be aggrieved by the aforesaid order.
2. Mohan Lal filed an application under Section 3 of the Workmen's Compensation Act, 1923, claiming compensation from the respondent Madan Mohan Verma on the following allegations. Mohan Lal was employed by Madan Mohan Verma as mechanic/workman for installing a cotton ginning machine and chalf cutting machine on the daily wages of Rs. 15/-. On 8th October, 1973 while Mohan Lal was taking the trial of the churl cutting machine his right hand got stuck into the teeth of the gear roller of the machine and all his fingers and thumb of his right hand were cut off resulting in total disability of a permanent character affecting his future earning capacity as well. He claimed compensation from Madan Mohan Verma, his employer, but the latter declined to give any compensation. Thereupon Mohan Lal moved the application under Section 3 of the Workmen's Compensation Act, claiming compensation on the basi.s ol the monthly wages of Rs. 450/-. 'The application was contested by Madan Mohan Vernia. His case was that Mohan Lal had sustained the injuries during the process of getting his own fodder cut into pieces in the machine installed by him. Under the circumstames, the employer could not be held liable to pay compensation. Furthermore, the injuries had been caused by the negligence of Mohan Lal. It was also denied that MohanLal was a workman.
3. On the pleadings of the parties relevant issues were framed by the Commissioner. The finding ol the Commissioner is that Mohan Lal was a workman ol the respondent, at the time of the accident in question, lie disbelieved the case of the employer that Mohan Lal sustained the injuries while he was cutting his own fodder at the machine. It was held that the injuries caused to the workman were sustained by him in the course of his employment with the res pondent. The Commissioner then proceeded to determine the compensation payable to Mohan Lal. He found on an analysis ol facts that the monthly wages of Mohan Lal should be calculated at Rs. 120/-. The Commissioner further held that in view of the nature of the injuries sustained by the workman, he was entitled to be awarded compensation under part II of the Schedule 1 to the aforesaid. Act which deals with the computation ol compensation in cases of injuries which result in permanent/partial disablement. Under Part II of that schedule the compensation payable in case of the loss ol the thumb and four fingers of one hand is 60% of the loss of the earning capacity. The Commissioner then applied IV Schedule as amended by the Workmen's Com pensation (Amendment) Act, 1976 (Act No. (if) of 1976), under which the amount payable iu the case of permanent disablement was raised from the existing figure of Rs. 9,800/- to 16,128/-, where, as here, monthly wages are not more than Ks. 120/-In view of the fact that the Commissioner had held that the disablement was partial, he calculated the amount of the compensation payable to the workman at 60% of Rs. 16, 128/- which worked out to Ks. 9,676,80, In addition, the Commissioner awarded 6% simple interest running from the date of the accident to the date of payment to the workman.
4. Three points were urged in support of the appeal by the learned Counsel for the employer:
Firstly, that Madan Lal was not a workman within the meaning of Section 2(n) of the aforesaid Act, as he was doing work of a casual nature; Second, that the Commissioner committed a patent error of law in applying the amended provisions of the IV Schedule. He should have applied the Schedule as it existed on the date of the accident, i.e., 8th October, 1973; Third, that the commissioner was not right in awarding interest from the date of the accident. If at all, he should have awarded interest only from the date of the order.
5. We find no substance in the first point urged on behalf of the employer. The only ground upon which the employer claimed that Mohan Lal was not a workman within the meaning of Section 2(n) was that he sustained the injuries while he was cutting his own fodder. Hence, he was excluded from the definition of 'workman'. It does not seem to have been urged or pleaded before the Commissioner that Mohan Lal was employed to do the work of a casual nature. The Commissioner examined the evidence led by the employer as well as the workman and rejected the case of the employer. He held that Mohan Lal sustained the injuries while he was working as workman employed by Madan Mohan Verma and that the injuries have been caused while he was taking the trial of the machine in the course of his employment. This is a finding of fact which not being vitiated by any error of law cannot be reviewed in this appeal. Furthermore, the only ground on which the learned Counsel for the employer contended that the employment of Madan Lal was of a casual nature was that he had been engaged merely to install the machine and that his employment ceased on the very third day when he sustained the injuries. We find no substance in this ground either. Fixation of the machine and taking of trials were all part of the business of the employer. The mere ground therefore that Mohan Lal had been employed merely to install the machine could not take him out of the purview of the definition of 'workman'. Similarly, the mere fact that Mohan Lal sustained injuries three days after his employment would also not be relevant or conclusive for holding that Mohan Lal's employment was of a casual nature. We, therefore, find no substance in the first point.
6. The learned Counsel for the employer, however, seems to be on a firm ground so far as the second point is concerned. By the amendment of 1976 referred to above the IV Schedule to the aforesaid Act was amended. The original applicable figure was Rs. 9,800/- which was substituted by the figure of Rs. 16,128/- by the aforesaid amendment. Under S. l(2) of the amending Act the IV Schedule was amended retrospectively with effect from the 1st of October, 1975. The retrospectivity was, however, expressly confined to the 1st October, 1975, The accident took place in the present case on 8th October, 1973. Evidently, therefore, the Schedule, which was in operation on that date ought to be applied in determining the compensation.
7. The learned Counsel for the employer placed reliance on a decision of the Orissa High Court where a similar question arose for consideration. See Oriental Fire and General Insurance Company Ltd. v. Mst. Bibi and Ors. 1972 A.C.J. 187 (Orissa).
8. The learned Judge of that Court held that the rights and liabilities under the Workmen's Compensation Act become crystallised on the date of the death of the workman and the making of the application is only procedural and unless the Act seeking to amend the Schedules is expressly or by necessary implication made retrospective it will operate only prospectively and the amendment shall not apply. The compensation will have to be computed according to the Schedule as it stood on the date of the accident and not as it did after that date. This decision fully supports the contention of the learned Counsel for the employer. A similar view has been expressed in another decision cited by the learned Counsel for the appellant reported in Oriental Fire and General Insurance Co. v. Moola Singh 1970 A.C.J. 401 (P. & H.).
9. Having considered the submissions made by the learned Counsel for the parties, we find ourselves in respectful agreement with the views expressed in both the aforesaid decisions. In our opinion the rights and liabilities of the parties stand crystallised on the date of the accident under Ss.3 and 4 of the Act. The right to receive compensation or the liability to pay compensation arises or accrues under course of employment. It undoubtedly deals with the substantive rights of the parties. Section 4 of the Act which deals with how the amount of compensation shall be determined also deals with matters of substantive rights as it provides that the amount of compensation payable shall be that mentioned in the IV Schedule. The amount thus stands computed by the existing statutory provisions of the applicable Schedules. We do not agree with the learned Counsel for the respondent that Section 4 of the Act which deals with the quantification of the compensation relates to matters of procedure only. As the liabilities stand crystallised and quantified by the existing statutory Schedule, in our opinion, it cannot be said that the provisions of Section 4 read with IV Schedule laying down the yardstick for determining the compensation payable by the employer relate to matters of procedure only. They are, in our opinion, matters of substantive rights.
10. Our conclusion, therefore, is that unless the Amending Act purporting to amend the Schedules is made expressly retrospective it must have a prospective operation. In the present case, as mentioned above, the Legislature has expressly limited the retrospectivity of the amendment of the IV Schedule to a specified date, namely, 1st of October, 1975. The accident in the present case took place on 8th October, 1973. The Commissioner was, therefore clearly in error in applying the amended provisions of IV Schedule. He should have applied the provision of the Schedule as they stood on the date of the accident according to which Madan Lal would be entitled to receive compensation at 60% of Rs. 9,800/-. This works out to Rs. 5,880/-.
11. The third point urged in support of the employer's appeal has no substance. It was contended that the interest should have been calculated, if at all, from the date of the passing of the award. It should not have been calculated from the date of the accident. It was submitted that the compensation becomes payable only after the liability of the employer had been determined by the Commissioner. The submission is without any merit. The liability to pay interest arises under Section 4A of the Act as soon as the injury is caused to the workman as the employer is under a duty to pay the compensation at the rate as provided by Section 4. Under Sub-section (2) of Section 4A the employer is required to make provisional payment of compensation even if he disputes his liability to pay compensation to the extent claimed by the workman. He is required under that provision to deposit with the Commissioner an amount based on the extent of liability which he accepts. The view which we are taking finds full support from the decision of the Supreme Court in the case of Pratap Narain v. Srinivas 1976-1 L.L.J. 235, in which it has been held that in the case of a personal injury, the employer becomes liable to pay compensation as soon as the personal injury is caused and that where the employer fails to pay the compensation as provided under Section 4A(1) and also makes no provisional payment under Section 4A(2) the employer is liable to pay interest from that date. The Commissioner was, therefore, right in calculating the amount of compensation from the date of the accident.
12. We may now turn to the appeal of the workman. Two grounds were urged in support of the appeal, namely:
(i) That the Commissioner should have computed the compensation under Part I of the Schedule I on the premise that the injuries have resulted in permanent total disablement and not permanent partial disablement, and
(ii) that the Commissioner committed an error in not awarding penalty also against the employer.
We find no substance in either of the two points.
So far as the first point is concerned, we find that the present case was squarely covered by item No. 4 of Part II of the Schedule I which reads as follows:Loss of a hand or of the thumb and four fingers of one hand or amputation from 41/2' below tip of olecranon.
Part II of that Schedule lists certain categories of injuries which are deemed to result in permanent partial disablement. On admitted facts therefore the injuries caused to the workman were covered by item No. 4 of Part II and was therefore rightly treated as a case of permanent partial disablement.
13. The learned Counsel, however, placed reliance on a decision of the Supreme Court reported in Pratap Narain v. Srinivas (Supra). In that case the Supreme Court was considering a case where the left hand above the elbow of the workman, who was a carpenter by profession, had been amputated. Their Lordships, held, inter alia that the case was clearly one of permanent total disablement as the carpenter could not possibly work with one hand. That case is clearly distinguishable on facts. In the present case, as mentioned above, it cannot be said that the carpenter cannot use his right hand at all. We are of the opinion that on the facts of the present case the Commissioner rightly applied Part II of the Schedule I as the present is not a case where the workman might have been incapacitated for all work which he was capable of performing at the time of the accident.
14. Coming to the second point we find that there is no substance in this submission either, Under Sub S.(3) of Section 4A the Commissioner is empowered to direct payment of simple interest where the employer is in default in paying the compensation due under this Act and if in the opinion of the Commissioner there is nojustification for the delay a further sum not exceeding 50% for such amount may be recovered from the employer by way of penalty. The provision for penalty has been left to the discretion of the Commissioner. He is not bound to direct payment of penalty in every case. The Commissioner has not considered the present to be a fit case for awarding penalty We see no reason to take a different view. In our opinion no ground has been made out for awarding penalty in the present case.
15. The result of the aforesaid discussion, therefore, is that whereas the appeal No. 216 of 1977, filed by the employer succeeds and is allowed in part, the appeal No. 363 of 1977 of the workman MohanLal is dismissed. The order passed by the Commissioner is modified. Madan Mohan Verma is directed to pay Mohan Lal a sum of Rs. 5,880/. Madan Mohan Verma shall also pay to Mohan Lal an interest on this amount at the rate of 6% from 8th October 1973 upto the date of payment. These amount shall be deposited by Madan Mohan Verma in the Court of the Commissioner for Workmen's Compensation. Etawah within two months from today. If the amount is not deposited it shall be recovered by due process of law The parties are directed to bear their own costs in the two appeals.