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2002 DIGILAW 118 (JHR)

Jagbandhu Singh v. Sri Chandra Mohan Mishra

2002-02-06

GURUSHARAN SHARMA, HARI SHANKAR PRASAD

body2002
ORDER 1. Bibhishaii Singh was under employment as driver of bus (BPV-8568), belonging to Sri Chandra Mohan Mishra. While driving the said bus on 25.5.1990 from Muri to Khunti on tbe way it met an accident on a bridge. The driver sustained serious injuries and succumbed thereto. 2. The deceased was a bachelor aged about 28 years at the time of accident. His monthly salary was Rs. 1200/-. His parents filed W.C. Case No. 4 of 1992, under the provisions of Workmens Compensation Act. 1923 (hereinafter referred to as "the act"), for compensation. 3. Employer of the deceased appeared and admitted the deceased to be his employee and his death in the accident in question, while he was on duty. It was also admitted that deceased-Driver was getting Rs. 1200/-per month as salary from him. 4. The Insurance Company also appeared and contested the case on the ground that owner of the vehicle did not intimate about the accident immediately and, therefore, it was not responsible for indemnifying his liability to pay compensation. 5. The Court below accepted that deceased driver was a workman within the meaning of the Act and he died in a motor accident in course of duty. It was also accepted that deceased was 28 years old and owner of bus was paying him Rs. 1,200/- as his monthly salary. Total amount of compensation, including penalty was calculated at Rs. 31,768.50 paise. A sum of Rs. 21,179/-was calculated as compensation amount under Section 4 of the Act and further a sum of Rs. 10,589.50 paise was imposed by way of penalty under Section 4-A(3)(b) of the Act. 6. Mr. S.N. Lal, Counsel for claimants-appellants, submitted that a mistake has been committed in calculating the amount of compensation at Rs. 21,179/- in accordance with Section 4 of the Act and on correct calculation the amount comes to Rs. 84,716/-. 7. Admittedly, in the present case monthly salary of the deceased was more than Rs. 1,000/-. A plain reading of Explana-tion-I to Section 4 of the Act shows that where the monthly wages of workman exceed one thousand rupees, his monthly wages for the purpose of Clause (a) and Clause (b) shall be deemed to be one thousand rupee only. Requirement of Section 4 is that compensation has to be paid in accordance with the scale indicated in the Schedule to the Act. Requirement of Section 4 is that compensation has to be paid in accordance with the scale indicated in the Schedule to the Act. According to Section 4(1)(a) an amount equal to 40% of the aforesaid monthly wages at Rs. 1,000/-of the deceased workman has to be multiplied by the relevant factor. As per Explanation-I, relevant factor in relation to a workman means the factor specified in the second column of Schedule-I against entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birth day immediately proceeding the date on which the compensation fell due. In the present case completed years of his age on the relevant date was 28 years, which has to be multiplied by relevant factor at Rs. 211.79 paise. Thus total amount of compensation comes to Rs. 84,716/- and submission of Mr. Lal is correct. 8. So far as imposition of penalty of Rs. 10.579.50 paise by the Commissioner in the impugned judgment and award is concerned, it has been done in exercise of powers under Section 4-A(3)(b) of the Act. Where an employer is in default in paying the compensation due under the Act within one month from the date it fell due the Commissioner, if in is opinion there was no justification for the delay, can direct the employer to pay a further sum not exceeding 50% of the amount of arrears and interest thereon, in addition to be paid by way of penalty to the claimant. Proviso thereto shows that an order for payment of penalty shall not be passed under Clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. Penalty, therefore, cannot be imposed as a matter of course and such discretion must be exercised judicially, after giving opportunity to the employer/insurer to explain the circumstances for the delay. Penalty, therefore, cannot be imposed as a matter of course and such discretion must be exercised judicially, after giving opportunity to the employer/insurer to explain the circumstances for the delay. In the present case, the Commissioner had not issued any prior notice to the employer to show cause as to why order imposing penalty should not be passed against him and it is also not clear from the impugned order that he had considered whether the statutory conditions were fulfilled in the case and, therefore, default on the part of the employer could not be said to be unjustified and imposition of penalty was not called for. Obligation is on the part of the Commissioner to hear the party to be adversely affected is implicit in Section 3 to Section 4-A of the Act. 9. In our opinion, therefore, imposition of penalty without affording the employer/insurer an opportunity of hearing was not proper. 10. Mr. Allam. Counsel for Insurance Company submitted that while making calculation under Section 4 of the Act, the Court was required to consider the provisions of Section 5 also which has not been done in the present case. In our opinion, it was not a case to attract the provisions of Section 5. Mr. Allam has not disputed the mode of calculation suggested above by Mr. Lal under Section 4 of the Act. 11. Accordingly, part of the impugned order and award, whereby penalty of Rs. 10.589.50 paise was imposed under Section 4-A(3)(b) of the Act is set aside and it is held that instead of Rs. 21,179/- claimants are entitled to get Rs. 84,716/- as compensation amount under the Act. 12. This appeal is, accordingly, disposed of with aforesaid modification in the impugned judgment and award, but without costs.