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2006 DIGILAW 318 (AP)

ORIENTAL INSURANCE CO. LTD. v. D. SAKUNTHALA

2006-03-07

V.DHANAPALAN

body2006
V. DHANAPALAN, J. ( 1 ) AGGRIEVED by the award of the commissioner for Workmen's compensation-I, Chennai in W. C. No. 158 of 1996 dated 23-8-1997, the insurance company has filed this appeal. The claimant Nos. 1 and 2 are the respondents herein and they are the parents of the deceased. The deceased murugavel was working as near driver under respondent No. 3 for a salary of Rs. 2,000 p. m. On 18-7-1995, the deceased went to the house of the respondent No. 3 and there, he was instructed to go to Saidapet through her car bearing registration No. MDA 4063. Subsequently, it was learnt that deceased murugavel has not turned up again. Later, it was learnt that the deceased was kidnapped with the car on 19-7-1995 totrichy, where he was murdered and his body was thrown at thalinji Main Road,- Kulithalai Taluk, Trichy district. The culprits have taken away the car. The said car bearing registration no. MDA 4063 was insured with the appellant insurance company at the time of the incident. The age of the deceased was 25. When the respondent Nos. 1 and 2 approached respondent No. 3, she told them to go to the appellant insurance company. Thus, the respondent Nos. 1 and 2 have filed the application for compensation in accordance with the provisions of the workmen's Compensation Act, 1923. ( 2 ) IN support of their claim, the respondent have filed transfer certificate, Exh. A-1 copy of first information report, Exh. A-2; copy of post-mortem certificate, Exh. A-3; copy of death certificate, Exh. A-4 and copy of insurance policy. Exh. A-5. ( 3 ) D. Sakunthala, respondent No. 1 was examined as P. W. 1, the Deputy commissioner of Labour, who is an authority under the Workmen's Compensation act, 1923, on appreciation of oral and documentary evidence and after holding that the murder of the deceased amounts to an accident, arising out of and in the course of his employment, the respondents are entitled to receive the compensation under the workmen's Compensation Act, the respondents have filed copy of the insurance policy, Exh. A-5, from which, it is clear that the car involved in this case was owned by respondent No. 3 and it was insured with the appellant insurance company at the time of death of the deceased and there was a valid insurance and, therefore, the appellant insurance company has to pay the compensation. The Deputy Commissioner of Labour-I (hereinafter called the authority ')has passed an award for a sum of Rs. 86,764 with interest at the rale of 6 percent per annum from the dale of accident till the date of deposit Against the said award, the insurance company alone has preferred the above appeal questioning its liability. ( 4 ) HEARD Mr. R. Sivakumar, the learned counsel appearing for the appellant insurance company and Mr. A. Shanmugaraj, learned counsel appearing for respondent Nos. 1 and 2. ( 5 ) MR. R. Sivakumar, the learned counsel appearing for the appellant insurance company, by drawing my attenlion to the specific finding of the authority under the workmen's Compensation Act, with regard to the authority's jurisdiction to award the interest from the date of the accident, has contended that the deceased was murdered and the murder does not amount to an accident arising out of and in the course of his employment and, therefore, the respondents-claimants are not entitled for any compensation under the Workmen's compensation Act (hereinafter called 'the act' ). ( 6 ) IN the counter statement filed by the owner of the car, respondent No. 3, before the authority, she has admitted the employment of the deceased with her as a driver and stated that the salary was rs. 1,500 p. m. and the compensation should be pa id by the appellant insurance company. In the counter filed by appellant insurance company before the authority, they have contended that vehicle's documents were not produced by respondent No. 3 and the respondent Nos. 1 and 2 must prove the employment of the deceased with respondent No. 3 and death of the deceased during the course of his employment. According to the appellant insurance company, the death was not due to an accident. 1 and 2 must prove the employment of the deceased with respondent No. 3 and death of the deceased during the course of his employment. According to the appellant insurance company, the death was not due to an accident. ( 7 ) THE learned counsel for the appellant insurance company further contended that the award of the authority under the workmen's Compensation Act is contrary to law on the ground that death of the deceased was not due to an accident and murder of the deceased does not amount to an accident arising out of and in the course of his employment. The authority ought to have granted time to deposit the award amount and has no jurisdiction to award the interest from the dale of accident. Thelcarned counsel further contended that the accident has been occurred on 18-7-1995 and the claim petition has been filed only in the month of March 1996 and there was enormous delay on the part of the respondent Nos. 1 and 2 in filing the claim petition. ( 8 ) ONE of the legal grounds raised by the appellant is that under Section 4 of the workmen's Compensation Act, 1923, there is no provision to grant interest on the grant of compensation amount and the reasons supported by the authority are untenable. ( 9 ) PER contra, the learned counsel for the respondents-claimants has contended that the deceased was working as car driver with respondent No. 3 and respondent No. 3 instructed the deceased to go to Saidapet through her car bearing registration no. MDA 4063 and the deceased was later kidnapped and murdered and his body was thrown at Thalinji Main Road, Kulithalai taluk, Trichy District. The employer, respondent No. 3 had admitted the employment of the deceased with her as driver and the vehicle, owned by her, is covered by the insurance policy. The deceased was in receipt of Rs. 1,500 p. m. as salary and, therefore, the respondents-claimants are entitled for compensation. Exh. A-5, certificate of insurance, from which it is clear that the car involved in this matter was owned by the employer, the respondent no. 3 and the same was insured with the appellant insurance company at the time of the accident and, therefore, the appellant insurance company has to give compensation as per the provisions of the Workmen's compensation Act, 1923. Copy of the first information report, Exh. 3 and the same was insured with the appellant insurance company at the time of the accident and, therefore, the appellant insurance company has to give compensation as per the provisions of the Workmen's compensation Act, 1923. Copy of the first information report, Exh. A-2, clearly discloses that the body of the deceased was found at thalinji Main Road, Kulilhalai Taluk, Trichy district and deceased was not in position to speak, but wrote the phone number and the number of the car, which belongs to the employer, respondent No. 3. ( 10 ) IT is not in dispute that the deceased was driving the car on the fateful day and exh. A-4 is the copy of the death certificate, in which the cause of death was noted as murder. So, the murder of the workman during the course of employment amounts to an accident under the Act and, therefore, compensation to be awarded. ( 11 ) I have carefully considered the rival contentions made by the learned counsel for either side. It is seen from the materials that in respect of the death of the deceased murugavel, the driver worked under the employer, respondent No. 3, the parents of the deceased prayed for a compensation of rs. 2,50,000 under Sections 10-A and 4-A of workmen's C'ompensation Act, 1923, for an accident arising out of and in the course of his employment on 18-7-1995. ( 12 ) THE learned counsel for the appellant insurance company, has strenuously contended that the vehicle's document was not produced by the employer, respondent no. 3 and the respondent Nos. 1 and 2 must prove the employment of the deceased with the employer and the death of the deceased during the course of his employment. In other words, accord ing to the learned counsel for the appellant insurance company that the deceased, being victim of a tortfeasor, the claimants, viz. , the parents of the deceased, respondent Nos. 1 and 2, are not entitled to compensation under the Act. ( 13 ) THE learned counsel lor the claimants, respondent Nos. 1 and 2, have taken me to various decisions of this court. , the parents of the deceased, respondent Nos. 1 and 2, are not entitled to compensation under the Act. ( 13 ) THE learned counsel lor the claimants, respondent Nos. 1 and 2, have taken me to various decisions of this court. In the case of superintending Engineer, Parambikulam Aliyar project, Pollachi v. Andammal 1983 ACJ 286 (Madras)wherein this court has held that as the deceased had to be present at the place where he was murdered by furious persons, this is an accident related to his employment. He relied on another decision in Senior Divisional Personnel Officers, southern Railway v. Kanagambal,1995 ACJ 770 (Madras)wherein this court has held that the worker was murdered by unidentified persons, the death was due to an accident arising out of and in the course of his employment. In the case of satiya v. S. D. O. , Public Works Department, Narsimlmpur,1974 ACJ 431 (MP)Madhya Pradesh High Court has held that murder during the employment is an unexpected incident and it should be considered as an accident. ( 14 ) FROM the above decisions, it is obvious that in the present case the murder of deceased amounts lo an accident arising out of and in the course of his employment and so, the respondent Nos. 1 and 2 are entitled to receive the compensation under the workmen's Compensation Act. ( 15 ) FROM the above discussions it emerges that: (1) Whether the cause of death (murder)amounted to an accident arising out of and in the course of his employment? (2) Whether the quantum of compensation payable lo the dependants of the deceased is justified by the authority and in respect of awarding interest at the rale of 6 per cent? ( 16 ) BEFORE considering the above points it would be useful to refer to certain silent features with regard lo the determination of the questions involved in the present case, i. e. , the accident took place is an accident arising out of and in the course of his employment under the Workmen's compensation Act, 1923. ( 17 ) SECTION 3 of the Workmen's compensation Act reads as follows: "3. ( 17 ) SECTION 3 of the Workmen's compensation Act reads as follows: "3. Employer's liability for compensation:- (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable lo pay compensation in accordance with the provisions of this Chapter: provided that the employer shall not be so liable- (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly altribulable to-(i) the workman having been at the lime thereof under the influence of drink or drugs, or (ii) the wilful disobedience of the workman to an order expressly given, or lo a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the wilful removal or disregard by the workman of any safety guard or other device which h knew to have been provided for the purpose of securing the safety of workmen. " section 4-A of the Act reads as follows: "4-A. Compensation to be paid when due and penalty for default:- (1) Compensation under Section 4 shall be paid as soon as il falls due. (2) In case where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on 1. . 2. . 3. . 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. . 2. . 3. . 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 banks 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 thereonpay a further sum not exceeding fifty percent 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. (3-A) The interest payable under subsection (3) shall be paid to the workman or his dependant, as the case may be, and the penally shall be credited to the state Government. " ( 18 ) AS per Section 3 of the Workmen's compensation Act, undoubtedly the employer is liable to pay compensation in respect of personal injury or death caused to a workman by accident arising out of and in the course of his employment in accordance with the provisions of Chapter II. Section 4 provides how the amount of compensation is to be determined. As per sub-section (1) of section 4-A, compensation under Section 4 shall be paid as soon as it falls due. It is not disputed that for arriving at a just compensation in the case of permanent disablement and death, the factors that are provided under Schedule IV of Workmen's compensation Act have to be taken note of. The owner of the car, respondent No. 3, has slated that deceased was in receipt of a salary of Rs. 1,500. It is not disputed that for arriving at a just compensation in the case of permanent disablement and death, the factors that are provided under Schedule IV of Workmen's compensation Act have to be taken note of. The owner of the car, respondent No. 3, has slated that deceased was in receipt of a salary of Rs. 1,500. When that is not disputed the findings of the authority, taking note of all these facts and in arriving the compensation is found to be reasonable and it would be proper to hold that the deceased would have earned Rs. 1,500 per month as a driver of the car. By applying the formula prescribed under Schedule IV, I conclude that compensation awarded by the authority is reasonable as per oral and documentary evidence and in the light of the above decisions referred to above. ( 19 ) ANOTHER question to be decided is whether the respondent Nos. 1 and 2 are entitled to the interest for the said compensation, if so, from what date? ( 20 ) LEARNED counsel for the appellant insurance company has drawn my attention to a decision of this court in Oriental Insurance co. Ltd. v. Kaliiya Pillai,2003 ACJ 1021 (Madras)wherein this court has referred the decisions of the Apex Court in Ved Prakash Garg v. Premi Devi 1998 ACJ 1 (SC)Pratap Narain Singh Deo v. Shrinivas Sabata 1976 AC] 141 (SC)and Oriental Insurance Co. l. td. V. Abdul Nazar 1997 Lab IC 891. ( 21 ) THE term 'falls due' in sub-section (1)of Section 4-A is to mean the time when the right to claim compensation accrued due. The employee or his dependents would be gained by means of interest for the amount due as well as the penalty for the delay. The interest has to be paid to the employee or to his dependant from one month after the date on which it actually fell due and the penally amount has to be credited to the account of the State Government, this question has been decided by this court in Oriental Insurance Co. Ltd. v. Kaliya Pillai (supra), which reads as under: " (9 ). . . Ltd. v. Kaliya Pillai (supra), which reads as under: " (9 ). . . As stated earlier, the Workmen's compensation Act, being a beneficial legislation, considering the object and scheme of the Act, particularly after insertion of Section 4-A, we hold that interest tor the compensation amount, would accrue 30 days after the date of accident and not from the date of quantification. To make it clear that we are of the view that the liability to pay interest would run from the date on which the right to receive compensation accrues in favour of the workman, namely, the dale of the accident and not on the date of issuance of orders by the commissioner lor Workmen's compensation. " ( 22 ) THOUGH the accident had occurred in 1995, the applicants have not been paid any compensation till date and hence, the insurance company was directed to pay the compensation with 6 per cent interest from the date of accident till the date of deposit. ( 23 ) IN the light of the above decisions and discussions, the order of the authority in w. C. No. 158 of f996 dated 23-8-1997 awarding compensation of Rs. 86,764 with 6 per cent interest from the date of accident till the date of deposit is confirmed and the appeal stands dismissed. ( 24 ) THIS court has earlier permitted the respondent Nos. 1 and 2 to withdraw 50 per cent of the amount deposited with accrued interest and further directed to deposit the balance amount in any of the nationalised banks in Chennai under the re-investment scheme. ( 25 ) WHILE dismissing the above appeal, 1 direct the respondent Nos. 1 and 2 to withdraw the balance 50 per cent of the deposited amount along with the accrued interest fo forrthwith. - .