Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 23 (TRI)

Renu Chanda v. State of Tripura

2016-01-28

DEEPAK GUPTA

body2016
JUDGMENT : These two appeals are being disposed of by a common judgment since they arise out of one award passed by the learned Commissioner, Workmen’s Compensation, on 5th December, 2011 in case No.TS(W/C) No.35 of 2003 whereby the Commissioner has assessed the compensation payable to the claimant at Rs.3,36,000/- and has awarded 6% interest on the said amount from the date of accident. 2. The allegations made by the claimant-appellant were that her son Bubu Chanda was employed as a workman by respondent No.3 Kabir Saha who was a contractor working in the Public Health Engineering Department for the purpose of deep tube-well drilling. It is alleged that while doing this work the injured received an injury and died as a result of the injury. The claimant alleged that the deceased was getting wages of Rs.4,500/- per month + food and tiffin allowance of Rs.50/- per day i.e. Rs.6,000/- in all. 3. The respondent No.3 denied all the allegations made in the petition. The stand of the State of Tripura and the Executive Engineer was that they had given a contract to respondent No.3 to drill the well and that the deceased Bubu Chanda was the employee of respondent No.3. 4. The learned Commissioner held that the deceased workman was an employee of Kabir Saha, contractor. He also held that the mother was entitled to compensation. The learned Commissioner assessed the income of the deceased at Rs.3,000/- per month and taking the age of the deceased to be 20 years he applied the relevant factor 224 and assessed the compensation at Rs.3,36,000/- and further awarded interest @ 6% per annum. 5. The claimant has filed this appeal and it is urged by Mr. S K Dutta, learned counsel of the claimant that the Commissioner has gravely erred in taking the income of the deceased at Rs.3,000/- per month whereas it was Rs.6,000/- per month. He also urges that the learned Commissioner has wrongly awarded interest @ 6% per annum whereas under the provisions of Section 4A the statutory rate of interest is 12% per annum 6. After going through the award it is more than obvious that the learned Commissioner was not even aware of the basic principles governing the law of grant of compensation under the Workmen’s Compensation Act, 1923. After going through the award it is more than obvious that the learned Commissioner was not even aware of the basic principles governing the law of grant of compensation under the Workmen’s Compensation Act, 1923. Compensation has to be awarded in terms of the Workmen’s Compensation Act, 1923 as it existed on the date of accident i.e. 4.7.1998. The rights of the parties are determined by the date of the accident and subsequent amendments even if beneficial cannot be used to enhance the compensation. 7. The Apex Court in a large number of cases has held that though the Workmen’s Compensation Act is a social welfare legislation, the rights of the parties are crystallized by the law as it stood on the date when the cause of action arose, i.e. the date when the accident occurred. Therefore, compensation has to be assessed as on the date of the accident. 8. In fact this question virtually stands decided. There are numerous judgments of the Apex Court on this point. The compensation has to be calculated as per the provisions of law as they exist on the date of accident. In the present case the cause of action has arisen on the date when the accident had occurred. 9. A four-Judge Bench of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata [ (1976) 1 SCC 289 ] has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. This judgment was followed in Kerala State Electricity Board and another v. Valsala K. and another [ (1999) 8 SCC 254 ]. The same view has been taken in Oriental Insurance Co. Ltd.v. Khajuni Devi and others [ (2002) 10 SCC 567 ]. 10. In 1998 the Explanation 2 to Section 4(1) provided that where the monthly wages of a workman exceed Rs.2,000/- his monthly wages for the purpose of determining the compensation shall be deemed to be Rs.2,000/-. Earlier the maximum wages were Rs.1000/- which were increased to Rs.2,000/- in the year 1995. 10. In 1998 the Explanation 2 to Section 4(1) provided that where the monthly wages of a workman exceed Rs.2,000/- his monthly wages for the purpose of determining the compensation shall be deemed to be Rs.2,000/-. Earlier the maximum wages were Rs.1000/- which were increased to Rs.2,000/- in the year 1995. These wages were increased to Rs.4,000/- in the year 2000 w.e.f. 08.12.2000 and now under Section 4 there is no limitation except that the Government may by notification determine the wages and at present these wages are determined at Rs.8,000/-. Therefore, the maximum wages which the Commissioner could have taken were only Rs.2,000/- and if that were taken the compensation would be reduced by almost by one third. 11. Mr. Dutta is absolutely right that the Commissioner gravely erred in awarding interest at only 6% per annum. Interest should have been awarded at the statutory rate of 12 % per annum but I do not propose to enhance the rate of interest because the claimant has already got much more wages than her legitimate due under the Act as it stood at the relevant time. The State has not filed any appeal and, therefore, I do not want to disturb the award passed in her favour. 12. This appeal has been filed by the contractor and his contention is that the learned Commissioner erred in holding that the State was entitled to recover the amount from the contractor. 13. Mr. P Roy Barman, learned counsel for the appellant, states that the Commissioner should have determined the extent of recovery, if any, which could have been made. 14. I am not at all in agreement with the submission of Mr. Roy Barman. In this case, the conduct of the contractor is highly deplorable. Before the Commissioner the contractor even denied the fact that he had engaged the workman. He denied each and everything which was stated in the claim petition. The State in its reply clearly stated that the deceased workman was an employee of the contractor and that contract had been given to the contractor. This version of the State has been upheld by the learned Commissioner which is a pure finding of fact calling for no interference. 15. The question is, whether the appellant contractor can be burdened with the liability to pay the compensation or not. This version of the State has been upheld by the learned Commissioner which is a pure finding of fact calling for no interference. 15. The question is, whether the appellant contractor can be burdened with the liability to pay the compensation or not. In this behalf reference may be made to Section 12 of the Workmen’s Compensation Act, which reads as follows : “12. Contracting.- (1) Where any person (hereinafter in this section referred to as the principal) in the course of or for the purposes of his trade or business contracts with any other person (hereinafter in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work which is ordinarily part of the trade or business of the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from the principal, this Act shall apply as if references to the principal were substituted for references to the employer except that the amount of compensation shall be calculated with reference to the wages of the workman under the employer by whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, [or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation,] and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner. (3) Nothing in this section shall be construed as preventing a workman from recovering compensation from the contractor instead of the principal. (4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.” 16. (4) This section shall not apply in any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken or usually undertakes, as the case may be, to execute the work or which are otherwise under his control or management.” 16. A bare reading of Section 12 of the Workmen’s Act leaves no manner of doubt that the Workmen’s Compensation Act which is a beneficial, social, welfare legislation was enacted in such a way that if the contractor is working for some other party, that other party shall be deemed to be the employer in term of Section 12(1) of the Act. The deemed principal would be liable to pay the compensation to the workmen employed in the execution of the work. However, Section 12(2) of the Act clearly lays down that where the principal is liable to pay compensation under this section, it is entitled to be indemnified by the contractor or any other person from whom the workman could have recover the compensation. Therefore, the State is entitled to recover the amount of compensation for the appellant contractor. The purpose of Section 12(2) of the Act, is to ensure that the workman does not suffer and he gets his compensation but he is an employee of the person who gave him employment and he has a right to recover compensation from that employee. 17. Sub-section (2) of Section 12 reads as follows : “(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the workman could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the workman could have recovered compensation, and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.” This sub-section makes it clear that where the principal is liable to pay compensation he shall be entitled to be indemnified by the contractor and this indemnification has to be for the complete amount. 18. 18. In view of the above discussion, both the appeals are disposed of by upholding the amount awarded by the learned Commissioner, Workmen’s Commission. Send down the LCRs forthwith.