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2007 DIGILAW 135 (UTT)

Smt. Reshma v. Ajay Adhikari

2007-03-23

RAJESH TANDON

body2007
Judgment - Heard Sri Z.U. Siddiqui counsel for the appellant and Sri T.A. Khan counsel for respondents. 2. Present appeal has been filed against the judgment and order dated 3-5-2001 passed by the Commissioner, Workmen Compensation, Nainital in Case No.5 of 2000. 3. Briefly stated Smt. Kusami Devi and others have filed an application for grant of compensation under Workmen Compensation Act, before the Workmen Compensation Commissioner, Nainital, which was registered as case NO.4 of 1990, on account of death of her husband in a Tractor accident. Respondent no. 1 was the owner of the tractor while the tractor was insured with the New India Assurance Company. The Commissioner has awarded compensation of Rs. 86,764/- vide judgment and award dated 7-7-1994 against Sri Ajai Chaudhari respondent no. 1. 4. Sri Ajai Chaudhari has failed to satisfy the award, therefore, on the request of the claimants, the Workmen Compensation Commissioner, Nainital issued recovery warrant vide order dated 7-6-2000. Respondent no. 1 filed objection and has submitted that the award was passed ex parte and on 27-7-1994 against which he filed application under Order 9 Rule 13 C.P.C. for setting aside the ex parte order, and the same is still pending before the Workmen Commissioner, Udham Singh Nagar. On the request of the respondent no. 1 the record of case No.4 of 1990 was summoned from District Udham Singh Nagar. On 21-12-2000 summons were issued to the New India Assurance Company. The insurance company has admitted that the tractor met with accident was insured with it and has deposited the entire sum of the award i.e. Rs.86,764/-. 5. The Workmen Compensation Commissioner, Nainital accordingly amended the award and directed the respondent no. 2 the New India Assurance Company to pay the entire sum of award to the claimants, which the insurance company has already deposited in the Court. 6. Claimant Smt. Reshma who is the mother of the deceased has preferred the present appeal on the ground that the Workmen Compensation Commissioner has not awarded interest on the sum of the award. 7. Counsel for the appellant has referred the provisions of sub section (3) of Section 4-A of the Workmen's Compensation Act, 1923 and urged that as the payment of amount of award was made much after one month, therefore, the appellant is entitled to 6% interest. 8. 7. Counsel for the appellant has referred the provisions of sub section (3) of Section 4-A of the Workmen's Compensation Act, 1923 and urged that as the payment of amount of award was made much after one month, therefore, the appellant is entitled to 6% interest. 8. Sub section (3) of Section 4-A reads as under: (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 may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty. 9. A perusal of the above provision of law clearly goes to show that award of interest and penalty is the sole discretion of the Commissioner who passes the award. Here in this case this issue has not been raised before the Commissioner by the claimants when the i3ward was passed in original case NO.4 of 1990 nor it was raised when the impugned order dated 3-5-2001 was passed shifting the liability of payment of compensation on the insurance company. 10. Further the appellant has challenged the subsequent order which was passed on the application of respondent no. 1 for setting aside the ex parte order and for impleading the insurer of the vehicle as a party to the case and original award has not been challenged nor copy of the award has been filed. 11. Copy of the order dated 3-5-2001, shows that there are more than five claimants in the original case but the present appeal has been filed only by Smt. Reshma Devi and other claimants have not been impleaded as appellants or the proforma respondents. Thus the appeal is bad for non-joinder of necessary parties. 12. In view of above, the appeal is devoid of merit and liable to be dismissed. 13. Accordingly, the appeal is dismissed. 14. No order as to costs.