Smt. Samadkunwar And Three Ors. v. Radheshyam — 1999 DIGILAW 795 (MP)

ORDER A.K. Gohil, J. 1. The appellants have preferred this appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act') against the judgment and award dated 25.2.1997 passed by the Commissioner for Workmen's Compensation, Labour Court, Ratlam in Case No. 5/W.C.F./89 for enhancement of compensation and also for grant of interest and a penalty. 2. Undisputedly the facts of the case are that the deceased Laxmansingh was working on drilling unit (Boring Machine) with a truck bearing registration number MQU 9299 as a cleaner owned by respondent No. 1. The aforesaid vehicle was insured with respondent No. 2. The deceased was getting Rs. 900/- per month as salary. While working as a cleaner on 23.2.1989 deceased Laxmansingh died because of electric shock and electric current. The matter was reported to the Police Station, Ratlam. The aforesaid drilling unit was seized on 27.2.1989 by the police and subsequently the same was released on Supurdgi by the Chief Judicial Magistrate, Ratlam. Post-mortem of the dead body was also conducted. The respondents have not paid the compensation to the applicants. Therefore, on 28.4.1989, appellants filed an application for compensation on which notices were issued to the respondents. Both the respondents filed their separate written-statements and denied the claim of the appellants. Therefore, issues were framed and evidence was recorded and by order dated 25.2.1997 the learned Commissioner calculated the amount of compensation of Rs. 76,885.20 ps. against which the appellants have preferred this appeal for enhancement. 3. I have heard the learned Counsel for the parties and perused the record. 4. The contention of the learned Counsel for the appellants is that the learned Commissioner has committed an illegality in calculating the amount of compensation. The deceased was aged about 27 years and as per the schedule the amount of compensation will be more. It is the further contention of the learned Counsel for the appellants that the learned Commissioner has also not granted the interest and penalty as per amended Section 4-A of the Act @ 12% per annum from the date it fell due. 5. It is the further contention of the learned Counsel for the appellants that the learned Commissioner has also not granted the interest and penalty as per amended Section 4-A of the Act @ 12% per annum from the date it fell due. 5. In reply the submission of the learned Counsel for respondent No. 2 is that only 6% interest is applicable from the date as the accident had taken place on 23.2.1989 and the amended provisions of Section 4-A, came into force by Act No. 30 of 1995 with effect from 15.9.1995 which are not applicable in the pending proceedings. 6. During the course of the arguments, both the parties have agreed that the amount of compensation assessed by the learned Commissioner is on lower side and as per the Schedule, the amount of compensation comes to Rs. 96,106.50 ps. There is no dispute on this point between the parties. Therefore, so far as the question of enhancement of compensation is concerned, the appeal is allowed and the amount of compensation is enhanced from Rs. 76,885.20 ps. to Rs. 96,106.50 ps. 7. Learned Counsel for the appellants relied on the decision of Supreme Court in case of Maghar Singh v. Jaswant Singh , about the payment of interest. In this case the appellant had sustained injury on 26.7.1984 and the mater was decided by the Supreme Court on 24.9.1996 and 9% interest per annum from the date of accident till the date of recovery or actual payment was allowed. The appellant has also cited a Division Bench judgment of this Court in case of Oriental Insurance Co. Ltd. v. Sunderbai 1997 (II) MPWN 118, in which the Court has justified the imposition of penalty on not depositing the amount of compensation during the pendency of the case. 8. In reply, learned Counsel for respondent No. 2 relied on the judgment of Ved Prakash Garg etc. v. Premi Devi and Ors. etc. II (1997) ACC 520 (SC) : II (1997) ACC 520 (SC), on the point that the Insurance Company cannot be made liable to reimburse the amount of penalty imposed on the employer and also relied on the Division Bench decision of Kerala High Court in case of Oriental Insurance Co. Ltd. v. Majeed 11 (1997) ACC 237 : 11 (1997) ACC 237 (DB), according to which the amendment under Sections 4 and 4-A is not retrospective. Ltd. v. Majeed 11 (1997) ACC 237 : 11 (1997) ACC 237 (DB), according to which the amendment under Sections 4 and 4-A is not retrospective. Learned Counsel further relied on Full Bench decision of this Court in case of Jivrakhan v. Shivcharandas and Ors. 1999 (1) JLJ 129 , in which also the Full Bench of this High Court was of the view that the provisions of Section 140 of the Motor Vehicles Act, 1988 are not retrospective. 9. So far as the question of interest is concerned, the facts of the case are to be taken into consideration that in the written-statements both the respondents have denied their liability for payment of compensation to the appellants who are the legal representatives of the deceased Laxmansingh. There is a clear cut finding recorded by the learned Commissioner that the accident arising out of and in the course of employment. The accident occurred way back in 1989 and, therefore, the rate of interest should be decided keeping that factor in mind as has been held in case of Maghar Singh (supra). Therefore, it would be appropriate to grant interest @ 9% per annum from the date of accident i.e. 23.2.1989 till the date of recovery or actual payment on the amount of compensation. 10. So far as the question of penalty is concerned, the appellants are not entitled for payment of penalty in view of the fact that no such amount of penalty has been claimed in the application. More so under the proviso of Sub-clause (b) of Sub-section (3) of Section 4-A, the amount of penalty can only be awarded after giving a reasonable opportunity to the employer to show-cause why it should not be passed (sic.) the same was not the subject matter for the consideration before the Commissioner and in view of the decision in case of Ved Prakash Garg (supra), the Insurance Company cannot be made liable to reimburse that part of the penalty. 11. In the result, the appeal is allowed and the amount of compensation is enhanced from Rs. 76,885.20 ps. to Rs. 96,16.50 ps. with interest @ 9% per annum from the date of accident till the date of its payment. 11. In the result, the appeal is allowed and the amount of compensation is enhanced from Rs. 76,885.20 ps. to Rs. 96,16.50 ps. with interest @ 9% per annum from the date of accident till the date of its payment. The respondents are directed to deposit the rest of the amount within a period of 45 days before the learned Commissioner for Workmen's Compensation and the Commissioner shall distribute the same amongst the appellants in accordance with law. Counsel fee Rs. 500/- if certified. Record be returned.