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2013 DIGILAW 1531 (BOM)

Mohammad Hussain v. Radha

2013-08-06

M.T.JOSHI

body2013
JUDGMENT : M.T. JOSHI, J. 1. Heard both sides. The present two Appeals have arisen out of the directions issued by the Ex-Officio Commissioner for Workmen's Compensation, Parbhani, directing the present appellants to pay compensation, penalty and interest to the claimants i.e. widow, parents and children of the deceased. The learned Commissioner directed that while the present both the appellants-employer as well as insurer shall jointly and severally pay the compensation of Rs. 5,52,510/- to the claimants, so far as the interest at the rate of 12% p.a. is concerned, Mohammad Hussain Shaikh Hayat-employer (present appellant in F.A. 1782/2012) was directed to pay interest from the date of accident till its full and final realization alongwith penalty of Rs. 2,76,255/-. Aggrieved by the direction to pay interest and penalty, present First Appeal No. 1782 of 2012 is preferred by the appellant-employer while aggrieved by the entire order, directing to pay compensation, First Appeal No. 1327/2013 is preferred by the insurer-New India Assurance Company Ltd. 2. As regards the appeal filed by the insurer (F.A. No. 1327 of 2013), the material things which are required to be considered, are that the deceased was working as a driver over the truck of Mohammad Hussain Shaikh Hayat-the employer. On the date of accident, i.e. 8.4.2010, deceased took the truck to a garage for repairing purpose as per directions of the present appellant. While one Mechanic was carrying electric welding work to a diesel tank of another vehicle which was adjacent to the truck of the present appellant, an explosion occurred. In the said accident deceased Deelip, the driver sustained serious injuries. While the deceased was taking treatment in the hospital, he died on 17.4.2010. It was alleged in the claim petition that the deceased was earning Rs. 6000/- per month as a driver + Rs. 100/- per day as bhatta. It was further submitted that an amount of Rs. 60,000/- was paid for medical treatment of the deceased and therefore an amount of Rs. 5,52,510/-, considering the age of the deceased, was claimed by the respondents/claimants. 3. The accidental death case was already registered by the Police and crime for the offences punishable u/s 304A and 427 of the I.P. Code was registered against the mechanic of the garage. 4. 5,52,510/-, considering the age of the deceased, was claimed by the respondents/claimants. 3. The accidental death case was already registered by the Police and crime for the offences punishable u/s 304A and 427 of the I.P. Code was registered against the mechanic of the garage. 4. The present appellant Mohammad Hussain Shaikh Hayat, the employer, in his written statement, admitted the relationship between the parties and further submitted that there was already a contract of insurance between him and the next of the appellant i.e. New India Assurance Company Ltd. It was also submitted that he had already informed about the accident alongwith relevant documents to the next of the appellant i.e. the insurer. 5. The insurer-New India Assurance Company Ltd. denied all the adverse allegations. It was alternatively submitted that the accident did not occur during the course of employment, arising out of employment and therefore it is not liable to pay any compensation. 6. The learned Commissioner came to the conclusion that the death has occurred during the course of the employment of the deceased. It was found that the deceased was earning Rs. 6000/- per month as wages. Considering the age of the deceased, the compensation was granted. The insurer was directed to pay principal amount of compensation. 7. As regards the interest, the learned Commissioner observed that the employer would be liable to pay the interest being his statutory liability. Further, since he failed to deposit the amount within a period of one month from the date on which it fell due, he would also be liable to pay penalty. 8. During the course of trial, it has become an admitted fact that the appellant-employer had already paid an amount of Rs. 30,000/- to the claimants and they had also waived the penalty to be imposed on either of the present appellants. 9. Mr. Mukul S. Kulkarni, leaned counsel for the appellant in First Appeal No. 1327 of 2013 the insurer submits that besides there being no evidence regarding employer-employee relationship, the very allegation of the claimants would show that the accident has not occurred during the course of employment but while the deceased was watching the work of welding of a diesel tank near the goods truck, the accident took place. It was further submitted that there was no evidence to show that the deceased was earning Rs. It was further submitted that there was no evidence to show that the deceased was earning Rs. 6000/- per month and hence it was submitted that the appeal preferred by the insurer be admitted. 10. In First Appeal No. 1782 of 2012, Mr. P.C. Mayure, learned counsel for the appellant submitted that it is an admitted fact that the claimants have waived the imposition of penalty and further penalty could not have been imposed without there being an opportunity to defend the same upon issuing show cause notice to the appellant. 11. It was further submitted that the appellant had already intimated the death of the deceased in the accident to the insurer vide a notice dated 17.8.2011, which was received by the insurer on the next day. In the circumstances, the learned Commissioner ought not to have directed the present appellant-Mohammad Hussain Shaikh Hayat to pay the interest. 12. Smt. A.N. Ansari, learned counsel for the respondents/claimants supported the reasoning forwarded by the learned Ex-Officio Commissioner. 13. Upon hearing both the sides and having considered the above material on record, both the Appeals are admitted, on the following substantial questions of law: (I) Whether the learned Commissioner has committed patent error in coming to the conclusion that the death of the deceased has occurred during the course of employment? (II) Whether the learned Commissioner has committed patent error in arriving at a finding that the appellant in First Appeal No. 1782 of 2012 was liable to pay interest and penalty? 14. By consent of learned counsel for the parties, the Appeals are heard finally. 15. The facts on record that the accidental case was registered and the offence was also registered wherein the immediate statements were that the deceased was working as the driver with the present appellant (F.A. No. 1782/2012), would go to show that there is no patent error in arriving at a finding that the relationship of employer-employee existed. 16. As regards the question as to whether the death of the deceased has occurred during the course of the employment, the facts on record would show that the deceased had taken the truck to the concerned garage under the directions of appellant-Mohammad Hussain Shaikh Hayat-the employer. While he was waiting there in the garage for repairing the truck, the explosion has occurred, causing his death. While he was waiting there in the garage for repairing the truck, the explosion has occurred, causing his death. These facts are sufficient to show that the death of the deceased has occurred during the course of the employment. 17. Mr. Mukul Kulkarni, learned counsel for the insurer-appellant (in F.A. No. 1327 of 2013), however, submitted that the accident did not occur while the deceased was driving the truck. The contract of insurance between these appellants did not specifically provide that the insurer would be liable to indemnify the employer only when the workman/driver would be driving the truck. The facts established would clearly show that there is nexus between employment and the death of the deceased. In the circumstances, no patent error in finding of the learned Commissioner is found in this regard. 18. As regards the question as to who is liable to pay interest, there is no dispute that the amount of compensation is to be deposited within a period of thirty (30) days from the date of occurrence i.e. the date on which it 'falls due' as per the provisions of the Workmen's Compensation Act. The said amount was not deposited by either of the appellants and therefore, naturally, the interest will have to be paid. 19. The accident has occurred on 8.4.2010. The deceased has died on 17.4.2010. It has come on record that on 17.8.2011, appellant-Mohammad Hussain Shaikh Hayat had issued notice to the next of the appellant-insurer, which was received by it on the next day. In that view of the matter, as the cause of action to file claim petition has arisen upon death of the deceased, the compensation would fall due on 17.5.2010. Appellant-Mohammad Hussain Shaikh Hayat did not intimate about the occurrence to the insurer till 17.8.2011. In the circumstances, he (employer-Mohammad Hussain Shaikh Hayat) would be liable to pay interest till 17.8.2011. Subsequent to the same, the appellant-insurer (New India Assurance Company Ltd.) would be liable to pay interest as despite having notice of the death of the deceased, it failed to deposit the amount of compensation. 20. It has come on record as an admitted fact during the trial that the deceased had received an amount of Rs. Subsequent to the same, the appellant-insurer (New India Assurance Company Ltd.) would be liable to pay interest as despite having notice of the death of the deceased, it failed to deposit the amount of compensation. 20. It has come on record as an admitted fact during the trial that the deceased had received an amount of Rs. 30,000/- from the appellant-Mohammad Hussain Shaikh Hayat and, therefore, the deduction of the said amount will have to be granted from the total amount of interest payable by appellant-Mohammad Hussain Shaikh Hayat. 21. So far as payment of penalty is concerned, since no separate notice was issued and the respondents/claimants also have waived the same during the trial, the learned Commissioner ought not to have imposed the penalty. 22. For the foregoing reasons both the Appeals are partly allowed, without any order as to costs, on the line of the observations made hereinabove. The learned Commissioner shall disburse the amount to the respondents/claimants as per the directions given here-in-above, after a period of four (4) weeks from the date of this order. In view of disposal of the Appeals, pending Civil Applications (i.e. C.A. Nos. 4715 of 2013, 11442 of 2012 and 2301 of 2013) filed in these Appeals do not survive and hence stand disposed of accordingly.