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2005 DIGILAW 657 (PNJ)

Dhiyan Singh v. Gulzar Ahmed

2005-05-27

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. In order to challenge the award dated 31.1.1994 of the Commissioner for Workmens Compensation Act, Kaithal and Kurukshetra, the workman Dhayan Singh has filed this appeal. This appeal was earlier allowed by Hon ble Mr. Justice S.S. Sudhalkar vide judgment dated 21.12.1999. However, his Lordship vide order dated 31.7.2001 passed in C.M. No. 5136-CII of 2001 ordered the re-hearing of the appeal as Mr. Munishwar Puri, counsel for the Insurance Company was not served of the date of hearing i.e. 21.12.1999. In this backdrop the appeal has been listed for hearing before me. 2. The facts giving rise to the appeal are that the appellant was working as a driver with respondent No.l on Vehicle No. HR-07-2607. The vehicle was insured with respondent No. 2. On 11.1.1991 at about 6.00 P.M. while the appellant was coming back from Pehowa to Shahabad while driving the vehicle, when it met with an accident. Resultantly, the right hand of the appellant after the shoulder joint had to be amputated. The appellant, was allegedly 23 years of age at the relevant time and was getting Rs. 1,000/- as his monthly salary. 3. A claim petition was filed by the workman before the Commissioner under Workmens Compensation Act, Kurukshetra (for short the Commissioner), who awarded Rs. 86,764/- as compensation considering the disability of the workman as 80 per cent, and the liability to pay the compensation was laid on the Insurance Company. However, no penalty or interest was allowed by the Commissioner. 4. It has been contended by the learned counsel for the appellant that the Commissioner has erred in assessing the disability as 80 per cent, whereas the workman has totally been disabled due to the amputation of his right arm above elbow. He has also contended that the appellant is also eligible for the grant of interest at the rate of 12 per cent per annum as well as the penalty as the amount of compensation was not paid to him within one month from the date of its accrual. 5. On the other hand, Mr. Munishwar Puri, learned counsel for the Insurance Company, has vehemently opposed the contentions raised by the counsel appearing for the appellant. It has been contended by him that no enhancement in compensation is called for. Further, it has been contended by Mr. 5. On the other hand, Mr. Munishwar Puri, learned counsel for the Insurance Company, has vehemently opposed the contentions raised by the counsel appearing for the appellant. It has been contended by him that no enhancement in compensation is called for. Further, it has been contended by Mr. Puri that Insurance Company is not liable to pay interest and penalty. He contends that only the employer should be held liable therefor. 6. There is no dispute with regard to the monthly wages being earned by the workman. His monthly pay has been found to be Rs. 1,000/-. The Commissioner has held the loss of earning capacity of the workman as 80 per cent. There is also no dispute that the right arm above elbow of the workman had to be amputated. The workman is a driver by profession. It is the common knowledge that a workman cannot work with one hand. The vehicle can be driven by both the hands. Thus, I am of the considered opinion that the appellant has suffered 100 per cent disability as there is a total loos of earning capacity. In this regard I am fortified by the judgment reported as Pratap Narain Singh Deo V/s. Shjrinivas Sabata and Anr., AIR 1976 SC 222, wherein the injured was a carpenter by profession. He had lost his left hand above the elbow. It was held by their Lordships that he had been rendered unfit for the work of carpenter and was held to be totally disabled. Similarly, in the present case, the appellant has lost his right arm above elbow. He being driver by profession has been rendered disabled totally. When the total disablement has taken place, then as per Section 4(b) of the Workmens Compensation Act (for short the Act), 60 per cent of the monthly wages of the workman will have to be considered for being multiplied by the relevant factor. 60% of the wages in the case of the appellant will be Rs. 600/-. The Commissioner has held the age of the workman to be 25 years. Thus, the relevant factor for calculating the compensation under the Act would be 216.91. By multiplying the 60 wages of the workman with the relevant factor, i.e. 216.91, the figure will come to Rs. 1,30,146/-. Thus, I enhance the amount of compensation from Rs. 86,764/-. to Rs. The Commissioner has held the age of the workman to be 25 years. Thus, the relevant factor for calculating the compensation under the Act would be 216.91. By multiplying the 60 wages of the workman with the relevant factor, i.e. 216.91, the figure will come to Rs. 1,30,146/-. Thus, I enhance the amount of compensation from Rs. 86,764/-. to Rs. 1,30,146/- As the vehicle in question was an insured vehicle, the amount of compensation, as mentioned above, shall be paid by the Insurance Company, i.e., respondent No. 2. 7. The next question is with regard to grant of interest and penalty. The Commissioner has dismissed the contention regarding interest and penalty without assigning any reason therefore inspite of the fact that there is a provision in Section 4(a) of the Act that when there is default in paying the compensation due under this Act, within one month from the date it fell due, then the Commissioner has to direct the employer to pay simple interest and if in the opinion of the Commissioner, there is no justification for delay, the Commissioner has to direct the employer to pay a further sum as penalty which should not exceed 50% of the awarded amount. 8. In this case the accident had taken place on 11.1.1991. The award by the Commissioner was announced on 31.1.1994. It has been brought to the notice of the Court that amount had been deposited only after announcement of the award. When the appellant had suffered the disability of the nature mentioned above, it was the duty of respondent No.l to have deposited the amount. The award by the Commissioner was announced on 31.1.1994. It has been brought to the notice of the Court that amount had been deposited only after announcement of the award. When the appellant had suffered the disability of the nature mentioned above, it was the duty of respondent No.l to have deposited the amount. The relevant provisions of the Act, i.e., Section 4(a)(l) and Section 4(a)(3) are reproduced hereunder for ready reference:- Section 4(a)(l) "Compensation to be paid when due and penalty for default: (1) Compensation under Section 4 shall be paid as soon as it falls due." Section 4(a) (3) (3) 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 shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) if, in the opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty: Provided that an order for the penalty shall not be passed under clauses: (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. 9. In spite of the fact that prayer for the grant of interest and penalty was made, but the same have not been granted by the Commissioner without giving any reasons therefor. In the written statement filed on behalf of respondent No.l no reasons have been given as to why he is not liable to pay the penalty and interest. The contention of respondent No.l is that he is not liable to pay the same because the vehicle was insured with respondent No. 2. After going through the statutory provision, I am of the considered opinion that the Commissioner has erred in not granting interest and penalty to the appellant- workman, 10. The contention of respondent No.l is that he is not liable to pay the same because the vehicle was insured with respondent No. 2. After going through the statutory provision, I am of the considered opinion that the Commissioner has erred in not granting interest and penalty to the appellant- workman, 10. In view of the aforequoted provision of the Act, 1 hold that the appellant shall be entitled to the grant of 12 per cent interest per annum from the date of accident till the amount is actually deposited by respondent No.l. 11. So far as the imposition of penalty on the employer is concerned, learned counsel for the appellant has prayed that 35% penalty may be awarded, the prayer made by the counsel for the appellant is very reasonable. 12. In the result, the appeal is allowed. The principal amount awarded to the appellant is enhanced to Rs. 1,30,146/-. The appellant shall also be entitled to interest at the rate of 12% per annum from the date of accident till the amount is actually deposited by respondent No. 1. He shall also be entitled to penalty to the extent of 35% from respondent No. 1 only.