Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 775 (MP)

Jamila Begam v. D. R. M. , Central Railway

2005-07-28

A.K.MISHRA, U.C.MAHESHWARI

body2005
ORDER Maheshwari, J.-- 1. The appeals are preferred u/s 30 of the Workmen's Compensation Act, 1923 (for short 'the Act') against the order dated 8.10.2001 passed by the Commissioner for Workmen's Compensation Labour Court No. 1. Jabalpur (in short 'Commissioner') in case No. 27/98/Fetal The MA No. 1804/01 is initiated at the instance of claimant for granting the interest and penalty on amount of compensation as ordered. while the MA No. 1805/01 has been preferred for setting aside the award at the instance of the employer Divisional Railway Manager, Central Railway. Jabalpur (M.P.). 2. The appellants of MA No. 1804/01 have been imp-leaded as respondents in MA No. 1805/01 and respondents of aforesaid former appeal is the appellant in the later appeal and they are called in this order as claimants and employer. 3. The husband of claimant No.1 and father of other claimants namely, Late Lal Khan, was an employee as Gangman under the employment of the said respondent employer and on the date of the incident dated 18.4.1997, he was posted at PWI(R). Damoh. and during the course of duty he was discharging his official functions at Makroniya railway station at about 7:30 O'clock in the evening where due to some altercation with the official of department he got cardiac pain and subsequently he died. Such death took place during the course of employment and discharging the official duty. All claimants being legal representatives and dependants of the deceased were entitled for compensation under the Workmen's Compensation Act. Deceased employee was aged 38 years on the date of the incident while getting salary Rs. 2.000/- per month. Thus. the claim was preferred u/s 3 of the Act for Rs. 1.89.560/-. 4. In reply of employer. it was denied that deceased Lal Khan died during the course of the employment and discharging the official duty. It is also pleaded that death of Lal Khan has not taken 'place during employment and discharging the official duty, no incident has taken place as mentioned by the claimant. The incident of altercation with other officials has also been denied. The claimants are not entitled for any compensation. 5. In view of the aforesaid pleadings learned Commissioner for Workmen's Compensation Labour Court. Jabalpur has framed the issues and recorded evidence of respective parties. The incident of altercation with other officials has also been denied. The claimants are not entitled for any compensation. 5. In view of the aforesaid pleadings learned Commissioner for Workmen's Compensation Labour Court. Jabalpur has framed the issues and recorded evidence of respective parties. On appreciation of it by holding that the deceased was an employee and suffered heart attack during the course of discharging the official duty and died. His age was found to be 45 years. Deceased was getting Rs. 1,900/- per month and by saddling the liability for compensation against the employer ordered to pay Rs.1,06,968/- along with interest @ 9 per cement per annum from the date of tiling the application, i.e.. 19.6.1998 and interest from the date of the death and penalty have not been awarded to claimants hence the claimants have filed an appeal for imposing penalty and award interest as provided u/s 4A of the said Act, while the employer has filed an appeal for setting aside the aforesaid impugned order passed by the Commissioner. 6. Shri Kuleep Singh. learned counsel for employer in MA No. 1805/01 has submitted that in view of the evidence available on record, although deceased was an employee of the employer but at the time of death he was not discharging any official function as such he was not on duty. According to his submission death of Lal Khan has not taken place because of due to any accident during the course of employment in discharge of the duty. He died on aforesaid date at 7:20 p.m. while his duty was to begin from 7:30 p.m. to 11 :30 a.m., as per his submission after lunch the deceased did not turn up on duty and before duty hours he was found dead. So employer was not responsible to indemnify the claim as filed by claimants. He further submitted that the instant appeal has been filed on two substantial questions of law. 7. "Firstly, whether deceased died during the course of his employment while he was on duty and finding of the commissioner in this regard is contrary to record and perverse or?" "While another question is whether the Commissioner has committed illegality in ignoring the material evidence adduced on behalf of employer which has resulted the miscarriage of justice. 7. "Firstly, whether deceased died during the course of his employment while he was on duty and finding of the commissioner in this regard is contrary to record and perverse or?" "While another question is whether the Commissioner has committed illegality in ignoring the material evidence adduced on behalf of employer which has resulted the miscarriage of justice. He also referred the statement of witnesses and documents filed on record and prayed for setting aside the order of Commissioner". 8. So far appeal MA No. 1804/02 filed by the claimants is concerned, he has submitted that in appeal of claimants no substantial questions of law are involved and even if the appeal of employer is not found maintainable even then in the facts and circumstances of the case the Claimants are not entitled for any interest or penalty as prayed by them. The claimants have already been allowed interest @ 9% per annum by the Commissioner from the date of filing their claims application. Thus, on these questions the award does not require any interference. 9. Shri Hansraj Bharti, the learned counsel for respondents claimants has submitted in MA No. 1804/01 that as per the provision of section 3 and 4A of the Act, the employer was bound to deposit the amount of compensation on the basis of schedule and prescribed procedure of the Act within one month from the date of death of the deceased employee arid if such amount is not deposited within the stipulated time, then as per mandatory provision, of section 4A of the Act, the claimants were entitled for interest on the awarded compensation from the date of death of the employee and also entitled for penalty. But the learned Commissioner has not given any specific finding for not awarding interest and imposing penalty. He also referred the sub-section (3) of section 4A of the Act and prayed that involvement of the substantial question of law on this point is apparent hence appeal be allowed and also prayed the MA 1805/01 filed by the employer be dismissed, as non-substantial question of law is involved in it. The findings regarding factum of the accident during the course of employment recorded by the Commissioner is finding of fact and it cannot be considered as a substantial question of law and he also referred some decisions. 10. The findings regarding factum of the accident during the course of employment recorded by the Commissioner is finding of fact and it cannot be considered as a substantial question of law and he also referred some decisions. 10. In view of the aforesaid submission of the learned counsel firstly we have to examine whether any substantial questions of law are involved in these appeals which is mandatory requirement of section 30 of the Act to entertain the appeal. 11. So we have carefully gone through the order of the Commissioner and according to our considered opinion, the finding that death of the deceased employee took place during the course of employment while discharging the official functions as given on appreciation of the evidence and documents, is a finding of fact based on proper appreciation of evidence, findings are not shown to be perverse in any manner and cannot be disturbed by invoking jurisdiction of the appeal u/s 30 of the Act, as such the finding of fact cannot be foundation for framing the substantial questions of law and thus we do not find any questions of law much less a substantial question of law in the appeal of employer. Our aforesaid view is fortified with the ratio in the case of Laxmihai Atmaram v. Chairman and Trustees. Bombay Port Trust reported in AIR 1954 Bombay 180 (vol. 41 C.N. 49) in which it is held as under: "5. The question, therefore, that we have to consider is whether there was any casual connection between the death of this workman and his employment. The authorities again are clear that if the workman died as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his' employment. The authorities also have gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer. The authorities also have gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer. But it is equally clearly established that if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased. Mr. Petigara says that we are bound to accept the finding of fact of the Commissioner and the Commissioner has observed that he failed to see what was the strain caused on the heart of the deceased by his duties as a night watchman, and he has further observed that it is Impossible to link the death of the deceased with any exertion the deceased may have had on the day of his death. Mr. Petigara is perfectly right that in appeals against the decisions of the Commissioner for Workmen's Compensation. we are bound by the findings of fact and the appeal only lies on substantial questions of law." In the case of Abbu Bakar Abdula Rahman (ABFU Balkar) v. Narayan reported in AIR 1933 Nagpur 272(2) the Court held: "The respondent has been awarded Rs. 819 as compensation under the Workmen's Compensation Act. 1923 for the loss of sight in one eye, which the Commissioner has found to have been caused by an accident arising out of the scope of his employment as a gin-fitter in the factory of the appellant. The appellant appeals against that award on three grounds: first that the application was not maintainable in the absence of proper notice. secondly that the loss of sight was not caused by any accident in the factory, and thirdly that if any such accident did occur it did not occur in the course of his employment. The Commissioner has found that while the respondent was scraping the cylinder of the gas engine in the appellant's factory. on 26th November 1930, the particle of rust entered his eye. and that this eventually caused complete loss of sight in that eye. The Commissioner has found that while the respondent was scraping the cylinder of the gas engine in the appellant's factory. on 26th November 1930, the particle of rust entered his eye. and that this eventually caused complete loss of sight in that eye. Under S. 30 of the Act no appeal lies unless a substantial question of law is involved. This finding of the Commissioner, therefore which is based on the evidence of the respondent and Dr. Saoji AW2, who treated the respondent at the request of the manager of the factory. is a finding of fact that cannot now be challenged." Thus, in view of the aforesaid dictums no substantial question of law is involved in the appeal of employer as such MA 1905/01 deserves to be dismissed. 12. Coming to the appeal of claimants before considering anything on merits for examining the substantial question of law we have to see the section 4A of the Act which reads as under: "4A. Compensation to he paid when due and penalty for default- (a) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed. he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim. (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 his 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 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 Explanation -- For, the purposes of this sub-section, "schedule bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). (3A). The interest payable under sub-section (3) shall be paid to the workman or his dependent, as the case may be, and the penalty shall be credited on the State Government". 13. The bare language of section says compensation is payable within the stipulated time which is provided under the aforesaid sub-section 3 of section 4A. The compensation in the case at hand became due on the date of death of employee and if it was not deposited according to the aforesaid provision, as per schedule and other provisions of the Act, then in view of the said mandatory provision the interest on the determined amount of compensation has to be ordered to be paid at the rate of 12 per cent per annum from the date of death of employee. 14. Question of interest burden: mandatory provision of section 4A(3) of Act is a substantial question of law. On considering the submissions of respective parties as submitted by them and on perusing the impugned order it is apparent that death of employee during the employment in discharging the official function took place on 18.4.1997 while the claimants tiled the application on 19.6.1998, the employer was duty bound to deposit the compensation amount within a month, i.e., from 18.4.1997 as per mandatory provisions of section 4A of the Act. It was not deposited within time, however, the Commissioner has awarded interest only at the rate of 9% per annum only from the date of claim application. Thus, we find the violation of section 4A(3) of the Act and error of jurisdiction in the impugned order. The interest is ordered to be paid at 12% pr annum from date of accident. 15. Thus, we find the violation of section 4A(3) of the Act and error of jurisdiction in the impugned order. The interest is ordered to be paid at 12% pr annum from date of accident. 15. So far penalty is concerned, in the facts and circumstances we do not find any substance in the arguments because no evidence regarding willful default of the employer in depositing the amount has been proved. 16. The mandatory provisions of section 4A of the Act warrant to pay the interest at the rate of 12% per annum from the date on which the compensation was due which is the date of death of. deceased in the case at hand thus we do hereby hold that the claimants the appellants of MA No. 1804/01 are entitled the interest at the rate of 12% per annum from the date of death of employee Lal Khan on the amount of compensation. Thus, to the aforesaid extent the impugned order is modified. 17. Resultantly, MA No. 1805/01 is hereby dismissed while the MA No. 1804.01 is allowed as indicated above. There shall be no order as to cost.