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2015 DIGILAW 1221 (GAU)

Assam State Electricity Board v. Pratima Nath

2015-09-21

N.CHAUDHURY

body2015
ORDER : 1. In this appeal under Section 30 of the Workmen’s Compensation Act, 1923 (now designated as Employees Compensation Act, 1923 and hereinafter referred to as Act), the Assam State Electricity Board ( as it was named at that time and now as Assam Power Distribution Company Ltd.) has challenged the judgment and award dated 5.2.1999 passed by the learned W.C. Commissioner, Dhubri in WC Case No. 1 of 1999. By that judgment and award, the learned WC Commissioner has directed the appellant company to make payment of Rs. 39,803/- being principal interest to the legal heirs of the deceased workman which had admittedly been paid by the appellant company even before adjudication. This interest was @ 12% per annum. 2. The appeal was admitted on 2.7.1999 but no substantial question of law was framed as is required under the Act. From perusal of the office note, it appears that the notice was duly served on the sole respondent but no one has put up appearance. Under such circumstances and for the ends of justice, this court felt it necessary to appoint an Amicus Curaie on behalf of the sole respondent. Ms. N Upadhyay learned counsel who was present in the court was asked to appear on behalf of the respondent, who readily agreed. 3. I have heard Mr. BD Das, learned senior counsel assisted by Mr. N Goswami for the appellant and Ms. N Upadhyay, learned Amicus Curaie on behalf of the sole respondent. 4. After hearing the learned counsel for the parties, this court framed the following substantial question of law and thereupon the learned counsel of both the sides have been heard. I have perused the lower court records. “Whether the learned Commissioner for Workmen’s Compensation can grant interest from the date of accident or adjudication of the matter as per Section 4(A)(1) of the Workmen’s Compensation Act, 1923? 5. Before deciding the appeal it is necessary to state the minimum necessary facts based on which the impugned judgment and award has arisen. The claimant, Smti Pratima Nath stated before the W.C. Commisioner that her husband Late Lalit Mohan Nath being an employee of the Assam State Electricity Board (herein after referred to as ASEB), Kokrajhar died while discharging his duties on 18.10.1996. The employer made payment of Rs. The claimant, Smti Pratima Nath stated before the W.C. Commisioner that her husband Late Lalit Mohan Nath being an employee of the Assam State Electricity Board (herein after referred to as ASEB), Kokrajhar died while discharging his duties on 18.10.1996. The employer made payment of Rs. 1,53,090/- to her by way of full and final way of settlement of compensation claimed but did not grant any interest. According to her, deceased Lalit Mohan Nath being a workman under Section-2(n) of the erstwhile W.C. Act, 1923, the employer was duty bound to make payment of interest @ 12% per annum . After consideration of the arguments put forward by the learned counsel for the parties, the W.C. Commissioner arrived at the finding that the workman had died in course of employment on 18.10.1996 and so claim of compensation @ 12% per annum on the total compensation of Rs. 1,53,090/- is genuine and the employer is liable to make payment of interest @ 12% under Section 4-(A)(3) of the W.C. Act, 1923. The W.C. Commissioner directed that such an interest would be from the date of accident and till the same was realized. Accordingly, interest @ 12% for 26 months came to be Rs. 39,803/- on the total principal compensation of Rs. 1,53,090/-. Upon this interest, component of further interest was also directed by the W.C. Commissioner @ 12% w.e.f. 27.12.1998 till realization. This is because the amount was deposited by the appellant herein on 26.12.1998. The principal compensation of Rs. 1,53,090/- was deposited by the present appellant on 26.12.1998 and so what was left to be paid is only the interest component and further interest thereon. 6. Mr. BD Das, learned senior counsel for the employer would argue that after passing of the judgment by the Hon’ble Supreme court in the case of National Insurance Company Ltd. vs. Mubasir Ahmed & Another, (2007) 2 SCC 349 , law is well settled. The question of granting simple interest at the @ 12% would arise only after expiry of one month from the date of its falling due. Referring to para-9 of this judgment, Mr. Das would argue that the date of adjudication would be the date of falling due and accordingly question of interest would have arisen had the appellant not made payment of compensation after the adjudication has been made. Referring to para-9 of this judgment, Mr. Das would argue that the date of adjudication would be the date of falling due and accordingly question of interest would have arisen had the appellant not made payment of compensation after the adjudication has been made. The adjudication was made on 5.2.1999 whereas deposit of the compensation was made by the employer on 26.12.1998 i.e. more than a month before the adjudication was made. Under such circumstances application under Section 4(A) of the Act would not arise in the facts and circumstances of the case. The learned tribunal, therefore, committed error in granting interest @ 12% from the date of accident. 7. I have perused the case of National Insurance Company Ltd. vs. Mubasir Ahmed & Another (supra). In para-3 of this judgment, the Hon’ble Supreme Court observed that the W.C. Commissioner in that case had allowed simple interest @ 12% from the date of accident till the actual realization and coming to para-9 of this judgment, Hon’ble Supreme Court held that in the absence of any indication in the section, the date of adjudication of the claim would be the date of falling compensation due and so if the awarded amount is not deposited within a period of 30 days from the date of adjudication, then and then only the question of granting interest @ 12% would arise. Para-9 of this judgment is quoted below for ready reference: “9. Compensation to be paid when due and penalty for default Compensation under Sec. 4 shall be paid as soon as it falls due. 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 event 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. 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 the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.” 8. In the case in hand, the claimant had approached the W.C. Commissioner on 12.1.1999 leading to registration of W.C. Case No. 1 of 1999 of the W.C. Commissioner, Dhubri. It was stated in the application that her husband was an employee under the ASEB and died of accident on 18.10.1996 in course of his duty. The ASEB Authority accorded sanction for compensation of Rs. 1,53,090/- and made payment vide cheque to her . But this amount did not include or bear any interest and so appropriate direction was necessary directing the employer to make payment of the interest @ 12% p.a. w.e.f. from the date of accident. Upon receipt of this application, an order was passed by the learned W.C. Commissioner on 20.1.1999 issuing notice to the opposite party for showing cause as to why the prayer could not be allowed. But before receipt of any reply, the judgment and award was passed on 5.2.1999 allowing the prayer for interest 12% per annum. 8. In the case in hand, there was no claim for compensation. The claimant had made prayer for interest on the compensation amount already paid by the employer. Under the Act, payment of interest is contemplated only when the employer does not make payment even after the compensation became due. As has been pointed above, the Hon’ble Supreme Court has held in the case of National Insurance Company Ltd. vs. Mubasir Ahmed & Another (supra) that date of falling due would be date of adjudication and so there being no adjudication as to payment of compensation at all there was no question of complying the provision of Section-4(A) of the Act in the present case. The W.C. Commissioner never directed the employer to make any compensation and so there was no question of failure on the part of the ASEB to make payment within 30 days from the date of such adjudication. Had there been an adjudication and consequent failure to comply with the same within 30 days, in that event only the compensation amount would have carried simple interest @12% per annum. All these conditions precedent being absent in the present case, the impugned judgment and award directing the employer to make payment of 12% interest cannot be upheld. Sole substantial question of law is decided in favour of the appellant and against the workman. Mr. BD Das submits that calculation of compensation amount was made by ASEB by taking consideration of Section 4-(1)(a) of the Act and there is no dispute from the side of the claimant that such assessment of compensation is wrong or vitiated in any way. 9. Before parting, this court appreciates the service rendered by Ms. N Upadhyay, learned Amicus Curaie. The State of Assam shall make payment honorarium of Rs. 5000/- to the learned Amicus Curiae. 10. Accordingly, the appeal stands allowed. No order as to cost.