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2012 DIGILAW 290 (BOM)

Gangadhar Somaji Gandhewar v. Surenderapal Barara

2012-02-08

M.T.JOSHI

body2012
Judgment This is an Appeal filed by the original-petitioner, who is aggrieved by the partial dismissal of his claim under the Workmen's Compensation Act, 1923 (hereinafter referred to as "the said Act"). 2. The appellant during the relevant period was under the employment of respondent no.1-employer in a Rolling Mill at Dhanegaon, Tq. and District-Nanded. He was working as a Pusher Operator. On 08.08.1992, while one gas cutter Hardeepsingh was cutting iron rods with the help of a gas machine in the said factory, the said gas machine exploded. In the explosion, while Hardeepsingh met with instantaneous death, the appellant suffered various injuries. He has lost his right eye completely. He also sustained postraumetic quadriceps muscle injury coupled with stiffness to the left knee joint with flexion contracture to left knee and hip. 3. Employer i.e. the respondent no.1 did not take any action, either of depositing the prescribed amount of compensation with the competent authority or communicating the accident to his insurer i.e. respondent no.2 United India Insurance Company Ltd. In the circumstances, the appellant filed the Claim Petition before the competent authority i.e. learned Civil Judge Senior Division, who is the Ex-Officio Commissioner under the said Act. 4. The respondent no.1-employer did not put his appearance in the proceedings inspite of due service of the summons. The claim, therefore proceeded ex-parte in his absence. Respondent no.2-insurer contested the claim on the ground that the insurer was not intimated of the accident by the employer or the employee. Next of defence was of total denial and alternative defence was that the appellant was under the influence of liquor at the time of the accident. 5. The learned Commissioner recorded the deposition of four witnesses from the side of the appellant. Respondent no.2-insurer examined its' employee. He deposed that when the insurer came to know about the death of Hardeepsingh, the insurer has suo-motu deposited the prescribed compensation in the Court. However, since no information or documents were received regarding the injuries sustained by the appellant, and since even after the request from the insurer, the respondent no.1 employer did not supply any document, the compensation in respect of the appellant could not be deposited. 6. However, since no information or documents were received regarding the injuries sustained by the appellant, and since even after the request from the insurer, the respondent no.1 employer did not supply any document, the compensation in respect of the appellant could not be deposited. 6. The learned Commissioner, after perusing the evidence and particularly, the medical certificate issued by the Civil Surgeon of Nanded came to the conclusion that the appellant has proved that he has sustained 40% permanent disability due to loss of right eye. The appellant contended additional 40% permanent disablement due to the rest of the injuries with injury to the left knee and hip. The same, however, was not accepted by the learned Commissioner. In the circumstances, the prescribed compensation for permanent disability due to loss of eye, of Rs.40,320/-together with future interest @ 6% per annum from the date of accident till the realisation of the amount was granted. Further, the learned Commissioner had specifically framed the issue about the entitlement of the appellant towards the interest and penalty. 7. As regards the penalty and interest, the learned Commissioner concluded that since the employer and the appellant failed to intimate or furnish documents to the respondent no.2-insurer inspite of repeated requests, there is no question of imposing any penalty. As regards the interest, the learned Commissioner concluded that interest @6% p.a. shall be paid. 8. Aggrieved by the non-payment of interest at the statutory rate and non-imposition of the penalty and also rejection of the claim towards 40% permanent disability, on account of the injuries to the knee and hip the present Appeal is preferred. 9. Learned counsel for the appellant Mrs. A.N. Ansari during the course of the arguments, conceded that there is no medical evidence to show that the appellant has suffered 40% permanent disability to left knee or hip and only injury to that part of the body is proved. Therefore, in the absence of any pleading as regards the temporary disablement, she conceded that no compensation towards the said disablement can be granted. Mrs. Ansari, however, vehemently submitted that in view of the provisions of section 3,4 and 4-A of the said Act, the appellant was very well entitled for interest @ 12% per annum as well as the penalty to be calculated at 50% of the compensation. 10. Mr. Mrs. Ansari, however, vehemently submitted that in view of the provisions of section 3,4 and 4-A of the said Act, the appellant was very well entitled for interest @ 12% per annum as well as the penalty to be calculated at 50% of the compensation. 10. Mr. Mandlik, learned Senior counsel appearing for the respondent no.1 submitted that the appellant was under the influence of liquor at the time of the accident and was directly responsible for the same. Therefore, he was not at all entitled for any compensation. He further submitted that the employer has taken every care after the accident and therefore, the respondent no.1 is not liable for any interest or penalty. 11. Respondent no.2 though duly served, remained absent in the Appeal. 12. On the basis of the above material, following points arise for my determination: I) Whether the appellant is entitled for interest at the rate of 12% per annum on the amount of compensation awarded by the competent authority? II) Whether the penalty is required to be imposed in the present case? My decision to point no.(I) is in the affirmative and to no.(II) is partly affirmative, to the extent of 10% payable to the State Government. 13. Section 3 of the said Act declares that the employer shall be liable for compensation in case of personal injury etc. caused to a workman by an accident arising out of and in the course of his employment, subject to certain exceptions. One of the exception is that the employer would not be liable in respect of any such injury, if the accident out of which the injury is caused is directly attributable to the workman having been at the time thereof under the influence of drink or drugs. 14. Admittedly, however, the respondent no.1 failed to appear before the competent authority and put any such a case. Respondent no.2-insurer though took the same plea naturally, its' witness had no personal knowledge about the same. Further, as the respondents failed to file any appeal or cross-objection, there is no need to go into the finding in this regard returned by the learned competent authority. In the circumstances, it is concluded that the appellant was entitled for the compensation, as awarded by the learned competent authority. 15. Further, as the respondents failed to file any appeal or cross-objection, there is no need to go into the finding in this regard returned by the learned competent authority. In the circumstances, it is concluded that the appellant was entitled for the compensation, as awarded by the learned competent authority. 15. As regards the interest and penalty, the provisions of section 4-A of the said Act are relevant, which reads as under:- "4-A. Compensation to be paid when due and penalty for default-(1) Compensation under Section 4 shall be paid as soon as it falls due.... (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 Gazettee, 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." It is thus clear that as soon as the compensation becomes due, the employer has to pay the same. The due date is prescribed by Section 4 of the said Act i.e. the moment the workman suffers personal injury. 16. Sub-section 3 of section 4-A of the said Act provides that if the employer makes any default in payment of the compensation within one month from the date it fail due, the Commissioner shall direct the employer to pay simple interest on the amount of compensation at the rate of 12% per annum or at such higher rate, prescribed by the provision. Thus, direction for payment of interest at the rate of 12% per annum is mandatory while payment at higher rate of interest is discretionary. 17. Thus, direction for payment of interest at the rate of 12% per annum is mandatory while payment at higher rate of interest is discretionary. 17. In the present case, it is crystal clear that the respondent no.1 employer did not take any plea that he is not liable to pay any compensation and failed to put up his appearance also before the competent authority. In that view of the matter, the learned competent authority rightly granted interest. However, it failed to discharge its mandatory duty to award interest at the minimum rate of 12% per annum and granted interest at the rate of 6% per annum. In such circumstances, the appellant shall be entitled for simple interest over the amount of compensation awarded by the competent authority at the rate of 12% per annum from one month from the date of the accident. Since the employer failed to intimate the insurer about the occurrence about the injury to the present appellant, the insurer cannot be saddled with the payment of interest. 18. As regards the penalty, it is to be imposed on the employer and to be credited to the State Government as per sub-section 3(a) of section 4A of the said Act. However, before imposing any such penalty, the competent authority has to form its opinion that there was no justification for the delay. In the present case, the employer failed to appear before the competent authority and the justification given by the insurer was that it was not informed either by the employer or the employee. In the circumstances, there is no justification for the delay from the side of the employer i.e. respondent no.1. In view of the fact that the employer can be directed to pay a sum, not exceeding 50% of the amount of compensation, considering the facts on record, the penalty at the rate of 10% per annum on the amount of compensation needs to be imposed upon the employer. In view of default of the employer-respondent no.1, the insurer-respondent no.2 need not indemnify him. 19. In view of the above findings, the Appeal deserves to be partly allowed. Respondent no.1 shall pay to the appellant additional interest at the rate of 6% per annum on the amount awarded by the learned competent authority for a period beginning from one month from the date of the accident till its realisation. 19. In view of the above findings, the Appeal deserves to be partly allowed. Respondent no.1 shall pay to the appellant additional interest at the rate of 6% per annum on the amount awarded by the learned competent authority for a period beginning from one month from the date of the accident till its realisation. Respondent no.1 employer also shall pay and credit the penalty at the rate of 10% per annum of the amount originally awarded by the competent authority to the State Government. The Appeal is therefore partly allowed on the foregoing terms, without any orders as to costs.