V. Bhaskaran Nambiar, J.
1. Kochu Velu was a coconut climber. He fell down from the tree on 16-6-1972. There was a multiple fracture of the left hand. He cannot hereafter climb the trees. He lost his avocation and claimed compensation under the Workmen's Compensation Act. Joseph, his employer disputed the claim and contended that Kochu Velu was only a casual employee. The Commissioner accepted the contention and rejected the claim. Velu filed appeal to this Court. The appeal was allowed and it was held that he was a workman entitled to compensation. The matter was sent back to the Commissioner for fixing the compensation amount. This decision is dated 2-1-1980 and is reported in Kochu Velu v. Joseph 1982 A.C.J. (Supp) 486 (Kerala).
2. Thereafter the Commissioner found that the appellant was getting an average monthly income of Rs. 5.25; he would come under the lowest wage group according to Schedule IV of the Act, that there was no total disablement, the earning capacity was 50% and thus awarded him Rs. 700/- as compensation.
3. Aggrieved Velu has again come up to this Court in appeal. It is a pity that this poor climber had to approach the High Court twice and to wait for about 12 years to get compensation due to him under law. Meanwhile the employer, Joseph, is dead. His legal representatives support the order of the Commissioner.
4. The counsel for the appellant conceded that the appellant was in the lowest wage group ; but mainly raised three contentions:
(1) The compensation has to be determined under the Schedule to the Act as amended by the Act 67/76.
(2) The appellant is, in any case entitled to compensation for total disablement.
(3) The appellant is entitled to interest and penalty under Section 4A of the Act.
5. We shall consider these points in seriatim.
Whether the Workmen's Compensation (Amendment) Act, 1916, applies to pending proceedings
The amendment Act came into force on 21-5-1976 ; but Section 4 which amended Schedule IV of the parent Act was given retrospective operation with effect from 1st October, 1975. The right to compensation arose when the injury was caused in 1972. The law as it then stood determined the right of the employee to receive compensation and the obligation of the employer to pay the same. Under Section 6 of the General Causes Act, the repeal shall not affect any right acquired or any obligation incurred or any legal proceeding or remedy in respect of such right or obligation and any such legal proceeding may be continued as if the repealing Act had not been passed, unless there is a different intention. The same effect Maxwell states in 12th edition of his 'Maxwell on the Interpretation of Statutes' at page 220 thus:
In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights.
In view of the fact that the amended Schedule takes effect only from 1st October, 1975, the legislative intent is clear that it did not affect rights and obligations acquired and incurred prior to that date. The contention that in this case the right to compensation accrued only when this Court decided the earlier appeal cannot be accepted as Section 3 of the Parent Act provides that compensation is payable if a personal injury is caused. The injury gives rise to the compensation and the obligation to pay is fastened on the employer on that date, though the actual payment may be postponed. The Supreme Court in Pratap Narain Singh Deo. v. Srinivas Sabata 1976 A.C.J. 141 (S.C.), held thus:
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 the 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 Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability of pay compensation under Section 3, in respect of the injury was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.
The amended Schedule IV will apply only in those cases where the injury was caused on or after 1st October, 1973, whether any proceeding was pending or not. The compensation has to be assessed under the unamended Schedule, if so, the petitioner will be entitled to a compensation of Rs. 1,400/- if there is total and permanent disablement and not Rs. 10,080/- as per the amended Schedule and only half this amount if the earning capacity was only 50%,
Whether the appellant is entitled to total and permanent disability ?
6. The doctor who treated the appellant was examined as S.W. 4 and the medical certificate issued was marked as Exh. A-2. Exh. A-2 shows that the appellant had a fall from a coconut tree and 'he was admitted with compound fracture of radius and ulna left.' When the doctor was examined, he stated in chief examination that the appellant had 'developed osteomylitis of radius and ulna ; now he was developed non-union of radius and ulna with partial loss of function of fingures due to tibrous anglosis of interphalangel joints and contracture of tendon.' He also stated that it is 'permanent disability' and that the appellant has lost 50% earning capacity. On this evidence the Commissioner found that there was only partial disablement and awarded 50% of the compensation. Apart from the fact, that the doctor himself has stated that it was permanent disability, it is clear from the evidence that the appellant is incapable of performing the work which he was capable of performing at the time of the accident. He was a coconut climber and with the loss of fingers, he cannot climb trees hereafter. It is a total and permanent disablement as defined in Section 2(1)(b) of the Act. The appellant is therefore entitled to the maximum compensation of Rs. 1,400/- as provided in the unamended Schedule IV of the Act.
7. In the Supreme Court decision a carpenter lost his left hand above the elbow and the Commissioner had found that he was evidently rendered unfit for the work of carpenter as the work of carpenter cannot be done by one hand only. The Supreme Court held that 'this is obviously a reasonable and correct finding.' In accordance with the dicta, it has to be found in this case also that there was total permanent disability. The finding of the Commissioner that the appellant was entitled only to half the compensation cannot then be accepted. The finding has been recorded without understanding the true scope of the definitions Clause (1) in Section 2 of the Act and thus there is an error of law which has to be corrected in appeal. Is the appellant entitled to interest and penalty under Section 4A of the Act
8. The Commissioner has not awarded interest or penalty and has overlooked Section 4A altogether. In fact he has not applied his mind to this question at all. While compensation has to be paid as soon as it is due, the Commissioner may award interest if there was no justification for the delay in making the payment. In this case, the employer never made any provisional payment. Even after this Court held that he was liable to pay compensation, as early as 2-1-1980, he did not even make any offer of provisional payment. He has not justified for the delay in making the payment. He has really been in default. He is thus liable to pay interest on the compensation amount of Rs. 1,400/- at the rate of 6% per annum from 16-6-1972 till date of payment.
9. Section 4A also provides that in addition to the interest, the employer can be made liable to pay penalty not exceeding fifty per cent of the compensation. For the reasons stated in the previous paragraph, we find that a penalty under Section 4A(2) has also to be imposed on the employer. We fix the amount at Rs. 350/-. The employer shall pay penalty of Rs. 350/- in addition to the compensation amount.
10. In the result the appeal is allowed and in modification of the order of the Workmen's Commissioner, respondents 1 to 7, the legal representatives of deceased 1st respondent employer will pay the appellant Rs. 1,400/- as compensation and interest at 6% per annum from 16-6-1972 till date of payment and also a further sum of Rs. 350/- as penalty along with costs of this appeal, fixing the fee of the counsel at Rs. 250/-.