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2017 DIGILAW 366 (CHH)

BAJARHIN BAI MAHETARU KEVAT v. R. K. SOLANKI

2017-07-26

P.SAM KOSHY

body2017
JUDGMENT : P. Sam Koshy, J. - Present is an appeal under Section 30 of the Workmen's Compensation Act preferred by the claimants assailing the award dated 10.06.2009 passed by the Commissioner, Workmen's Compensation-cum-Labour Court, Bilaspur in Case No. 112/WCA/COC-1-B/06(F) Claim. 2. The present appeal was admitted by this Court on 19.11.2012. However, while admitting the appeal no substantial question was framed. 3. Having heard the counsel for the parties, this Court feels it appropriate to frame the substantial question of law to consider in the present appeal. '1. Whether the Court below was justified in accepting the wages of the deceased to be Rs. 70 when it was pleaded before the Court below of his earning as Rs. 100/- a day which was even corroborated by the evidence of the claimants. 2. Whether the Court below has committed an error of law while awarding the interest from the date of award.' 4. Brief facts relevant for adjudication of the present appeal is that the deceased Rambharos aged around 22 years was working under respondent No. 3 who was a subcontractor of respondent No. 1. The respondent No. was granted a contract by respondent No. 2 SECR for some civil work to be carried out on the railway bridge over Shivnath river at Gudaghat. In the course of construction work the deceased is said to have fallen from the top of the bridge and sustained grievous injuries resulting in his death. The appellants who are the parents of the deceased moved an application before the Commissioner, Workmen's Compensation-cum-Labour Court seeking for compensation. 5. The Labour Court considering the facts and circumstances of the case and taking note of the pleadings and the evidences which have come on record vide its order, dated 10.06.2009 allowed the claim application and ordered for payment of Rs. 2,01,447/- as compensation. It was also ordered that the said amount shall carry interest @ 10% per annum if the amount is not deposited within 60 days from the date of award. 6. It is pertinent to mention at this juncture that the Commissioner has held that the respondents are responsible for the payment of compensation. The Commissioner has found the deceased to have worked under respondents 1 & 3 and the principle employer being the Railways. 6. It is pertinent to mention at this juncture that the Commissioner has held that the respondents are responsible for the payment of compensation. The Commissioner has found the deceased to have worked under respondents 1 & 3 and the principle employer being the Railways. The Commissioner has also held that the liability of payment of compensation shall be upon the principle employer i.e. the Railway Department with a liberty of recovery of the same from respondent No. 1 who was in fact held responsible for payment of compensation. This finding of the learned Commissioner has not been questioned or challenged by any of the respondents before this Court and therefore, the finding to that extent attains finality. 7. Respondent No. 1 after a period of about 4 years from the date the impugned award was passed filed a cross-appeal in the present case on 29.01.2013 invoking the provisions under Order 41, Rule 22 of the Code of Civil Procedure. This Court vide its order dated 12.03.2013 has already passed an order to consider the question of maintainability of the cross-appeal in a case under Section 30 of the Workmen's Compensation Act keeping in view the Rule 41 of the Workmen's Compensation Act. 8. The present is an appeal filed by the claimants seeking for enhancement. According to them, the wage of the deceased has not been properly taken into consideration by the Commissioner while quantifying the compensation. According to the claimants, in the claim petition they had claimed the wage of the deceased to be Rs. 100 a day which has not been accepted by the Commissioner and has held that the wage for the purpose of quantification of compensation would be Rs. 70 as the same is reflected in the copy of the memo of appeal which was forwarded to the respondents. The refusal to accept Rs. 100 a day by the Commissioner was only on the ground that there appears to be some tampering done in the memo of appeal by way of a correction made therein and Rs. 100 has been written in stead of Rs. 70 without there being any sort of counter initial in the said alteration of the wages of the deceased. 9. Counsel for the appellants submits that it is any-body's guess that at the time of accident i.e. 24.06.2005 the minimum wage of an unskilled labour was more than Rs. 100 has been written in stead of Rs. 70 without there being any sort of counter initial in the said alteration of the wages of the deceased. 9. Counsel for the appellants submits that it is any-body's guess that at the time of accident i.e. 24.06.2005 the minimum wage of an unskilled labour was more than Rs. 100 and therefore under no circumstances could the Commissioner have assessed the wage of the deceased to be Rs. 70. He submits that the wage of the deceased at Rs. 100 a day was also substantiated by the claimants in their respective evidences which have been laid before the learned Court below but the Labour Court refused to accept the contentions of the claimants only on the ground that in the copy of the notice issued to the respondents, the correction of the wages made in the original claim petition, could not be carried. Thus, prays for modification of the award to the extent that the quantification of the compensation be made taking into consideration the wages of the deceased to be Rs. 100/- a day. 10. So far as the Employee's compensation is concerned, the deduction of four day's wages also should not be made effective and it has to be monthly wages for 30 days which has to be taken into consideration by the Court below. In addition, counsel for the appellants also challenges the impugned award so far as the denial of interest from the date of accident is concerned. According to the counsel for the appellants, as per section 4-A of the Workmen's Compensation Act, the moment there is a default in depositing the amount payable to the claimants, the said amount would automatically carry interest as is envisaged under Clause A of sub-section 3 of Section 4-A of the Workmen's Compensation Act. According to the counsel for the appellants, the Court below ought to have appreciated the aforesaid provisions of law i.e. Clause A sub-section (3) of Section 4-A while deciding the issue of grant of interest to the claimants. Hence, the impugned award needs modification to that extent and the claimants be given interest from the date of accident. 11. According to the counsel for the appellants, the Court below ought to have appreciated the aforesaid provisions of law i.e. Clause A sub-section (3) of Section 4-A while deciding the issue of grant of interest to the claimants. Hence, the impugned award needs modification to that extent and the claimants be given interest from the date of accident. 11. Counsel appearing for the respondents however oppose the petition on the ground that the finding of the Labour Court is purely on the basis of the evidences which have been led before it and therefore, the appeal being devoid of merits should be rejected. Counsel appearing for respondent No. 1 submits that since the copy of the appeal which he has received has an endorsement of the deceased getting Rs. 70. It is the same which has to be accepted as the wage of the deceased and whatever correction is made in the original file before the Court below was not legally done and the same cannot be taken into consideration. He further submits that the entire liability ought to have been upon respondent No. 3 who was the direct employer of the deceased and only thereafter could the respondent No. 1 as well as respondent No. 2 be held responsible in non-payment of the compensation. Thus, prayed for rejection of the appeal. Counsel for the respondent No. 1 also submitted that he has filed a cross-appeal in this case on 29.01.2013 assailing the same impugned award and has sought for the quashment of the same by holding that the claimants are not entitled for any compensation. 12. Before we give a finding on the merits of the case it would be trite at this juncture to first refer to the objection raised by this Court vide its order dated 12.03.2013 so far as the maintainability of the cross-appeal is concerned. Undisputedly, the cross-appeal has been preferred invoking the provisions of Order 41, Rule 22 of the CPC. The present dispute revolves around the provisions of the Workmen's Compensation Act as it stood before amendment. The said Act itself is a complete Code and has its own procedure prescribed so far as the conduct of the proceedings before the Labour Court is concerned. The present dispute revolves around the provisions of the Workmen's Compensation Act as it stood before amendment. The said Act itself is a complete Code and has its own procedure prescribed so far as the conduct of the proceedings before the Labour Court is concerned. Moreover, the rule framed under the said Act known as Workmen's Compensation Rules, 1924 also envisages a provisions i.e. Rule 41 which clearly stipulates certain provisions of the CPC that would be applicable so far as the procedure of conducting the case is concerned. The said Rule i.e. Rule 41 does not prescribe the applicability of Order 41 or more specifically Order 41, Rule 22 to be applicable in a proceeding before the Labour Court or for that matter before the High Court. Since the Rule 41 of the Rules 1924 does not prescribe the applicability of Order 41, Rule 22 of CPC the Cross Appeal filed by the respondent No. 1 cannot be entertained for the simple reason that it could not be maintainable on account of deliberate exclusion of Order 41, Rule 22 from the provision of Rule 41. Once when there is a deliberate exclusion, the High Court cannot invoke its extraordinary powers conferred upon it so as to make a provision of law which is otherwise made applicable by the law makers for the purpose of entertaining a crossappeal preferred by respondent No. 1 is not maintainable. The view of this Court stands further fortified from the judgment of the Madhya Pradesh High Court reported in 1997 (1) MPLJ 441 (Diamond Cements vs. Pravin Bano and Ors.) wherein in paragraph 15 the High Court of Madhya Pradesh has categorically held that the provisions of CPC are not applicable to the appeals or a proceeding of the Workmen's Compensation Act except those which are otherwise provided under Rule 41. 13. Having decided the issue of maintainability of cross-appeal we now proceed to decide the appeal preferred by the claimants seeking enhancement. Undisputedly, the factual matrix of the case is not in dispute so far as the details of the deceased Rambharos, his age, his employment with the respondents his accidental death on 24.06.2005 and the Railway being the principle employer of the deceased. In the afore-said admitted factual matrix of the case all that now is to be determined is whether the award passed by the Commissioner was proper, legal and justified. In the afore-said admitted factual matrix of the case all that now is to be determined is whether the award passed by the Commissioner was proper, legal and justified. 14. The date of accident in the instant case is June, 2005. It is any body's guess that in June, 2005, the minimum wages of an unskilled labour would have been more than Rs. 100/- a day. The parents of the deceased had made a categorical statement that the deceased was earning Rs. 100 a day. The fact that he was drawing wages as stated by the claimants has not been disproved by any of the respondents by leading any documents to show that he was not being paid Rs. 100 a day and was being paid Rs. 70 as has been quantified by the Commissioner. The Commissioner on the contrary also does not hold that the deceased in fact was earning Rs. 100 a day but has accepted Rs. 70 as his wage only on the ground that in the notice issued to the respondents and the copy of the memo of appeal sent to the respondents, the wages as per the claimants was typed at Rs. 70 which in the Court's file though was found to be corrected and made Rs. 100 without the copy issued to the respondents being corrected. This is the only basis on which the Labour Court has refused to accept Rs. 100 as the wage of the deceased. This finding of the Labour Court is definitely too hyper technical to be accepted particularly dealing a provision of law which is said to be a liberal legislation enacted only for the protection of the workers/employees. Since the minimum wages at that point of time was also somewhere around Rs. 100, this Court has no hesitation in holding that for the purpose of calculating compensation payable to the deceased the wage of the deceased ought to have been Rs. 100 a day. If Rs. 100 is taken as the per day wages of the deceased, the monthly wage would become Rs. 3,000/-. On the basis of Rs. 3,000/- as his monthly wage if calculation is done as per Section 4, the amount of compensation would be Rs. 3,32,000/-. Thus, the appellants shall be entitled for compensation of Rs. 3,32,000/- in stead of Rs. 2,01,447 as awarded by the Commissioner. 15. 3,000/-. On the basis of Rs. 3,000/- as his monthly wage if calculation is done as per Section 4, the amount of compensation would be Rs. 3,32,000/-. Thus, the appellants shall be entitled for compensation of Rs. 3,32,000/- in stead of Rs. 2,01,447 as awarded by the Commissioner. 15. So far as the interest part is concerned, the Supreme Court in case of Ved Prakash vs. Premi Devi, 1997 (8) SCC 1 : AIR 1997 SC 3854 , dealing with the issue of payment of interest under Section 4-A (3)(a) has held that it is almost automatic, once default in payment of compensation is committed by an employer beyond permissible limit of one month, the amount payable would automatically attract interest and the Commissioner shall have to pass an order granting interest in such circumstances. 16. In the instant case, the Commissioner has awarded interest, but has made it effective only from the date of award of Labour court whereas, sub-section (3) of Section 4-A requires the Commissioner to direct the employer to pay interest from the date the amount fell due which would be the date of accident and not the date of judgment of Labour Court. The Supreme Court as early as in case of Pratap Narayan Singh Deo vs. Srinivas Sabata, 1976 (1) SCC 289 held that the compensation becomes payable on the date of accident and not on the date of determination of amount by the Commissioner. Again, the Supreme Court in case of Oriental Insurance Co. Ltd. vs. Khajuni Devi, 2002 (10) SCC 567 while dealing with the issue of relevant date from which the interest and penalty would be payable, has held that the relevant date for determining the rights and liability of parties is the date of accident and not the date of adjudication of the claim. Similar was the view of the Supreme Court in one of its earlier decisions in Kerala SEB vs. Valsala K, 1999 (8) SCC 254 : AIR 1999 SC 3502 . 17. In view of the aforesaid legal position as has been laid by the Supreme Court in the aforesaid judicial precedents, this court has no hesitation in reaching to the conclusion that whenever the interest is awarded, the same shall have to be awarded from the date of accident. 17. In view of the aforesaid legal position as has been laid by the Supreme Court in the aforesaid judicial precedents, this court has no hesitation in reaching to the conclusion that whenever the interest is awarded, the same shall have to be awarded from the date of accident. Thus, it is held that the appellants shall be entitled for interest from the date of accident till the date of its actual payment. In the instant case, since respondent No. 2 has already deposited the awarded amount, the interest has to be calculated on the awarded amount from the date of accident till it was deposited by the Railway and the interest on the enhanced amount shall be from the date of accident till the deposit is made by respondent No. 2. Rest of the condition as has been made by the learned Commissioner shall remain intact. Order accordingly.