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2018 DIGILAW 1018 (RAJ)

Vishwa Karma Motor Body v. Yusuf Mohammad

2018-04-17

VINIT KUMAR MATHUR

body2018
JUDGMENT & ORDER : Vinit Kumar Mathur, J. The present appeal has been filed against the award dated 18.06.2001 passed by the Commissioner, Workmen Compensation Act, 1923, Udaipur in Claim Case No.7/1996. 2. Briefly, the facts in the case are that Yusuf Mohammad, the respondent-claimant being the father of the deceased Farooq Hussain filed a claim application stating therein that his son Farooq Hussain was working with the respondent No.1 and was paid Rs.1000/- per month by the respondent No.2. His son deceased Farukh Hussain was doing the work of denting and painting in the workshop of respondent No.1. On 02.09.1995 while the deceased Farooq was in employment of the appellant-respondent he died because of the pressure of work. The claim petition was preferred by the respondent Yusuf Mohammad before the Commissioner, Workmen Compensation Act for a suitable compensation to be awarded in the case. 3. The appellants-respondents filed a reply stating therein that the deceased had no co-relation with his concern and in the special plea the appellants submitted that after the repairing work being performed on the Motor body, the respondent No.5 Azad Painter was given a contract for doing the painting work. The appellants were not aware that the deceased was employed for the purpose of painting at the Azad Painter Works and if he was employed there then the appellants are not responsible for the claim. 4. The issues were framed and the evidence was recorded. The statements of Mohammad Yusuf were recorded in which he stated that his son was employed with the appellant respondent and the payment was being done monthly by Dinesh Kumar. His son died during the course of employment of appellants. A postmortem report of the deceased was also placed on record. 5. The learned Commissioner, Workmen Compensation Act, after dealing with the issue, concluded finding on issue No.1 that deceased Farooq Hussain was in the employment of appellants respondents No.1 and 2 and thus the fact the deceased being in the employment of the appellant was proved. 6. The only contention of learned counsel for the appellants is that in view of the statements of Mohd. Yusuf and the postmortem report it cannot be concluded that the death of deceased was due to or attributable to the work performed by the deceased at the workshop of the appellants. 6. The only contention of learned counsel for the appellants is that in view of the statements of Mohd. Yusuf and the postmortem report it cannot be concluded that the death of deceased was due to or attributable to the work performed by the deceased at the workshop of the appellants. She further placed reliance upon sub clause 4 of Section 3 of the Workmen Compensation Act, 1923 which shows that no compensation shall be payable to the workman in respect of any deceased unless the deceased is directly attributable to a specific injury by an accident arising out of and in the Course of employment. Therefore, she submits that the learned Tribunal was absolutely wrong in fastening the liability of compensation on the appellants. 7. Learned counsel for the appellants has relied upon a judgment of Hon'ble Supreme Court in the case of Lakshminarayana Shetty Vs. Shantha, 2001 Supreme 34510. 8. After the appeal of the employer was admitted by this Court the claimants preferred cross objections in the matter. In the cross objections, the claimants have submitted that since the deceased died during the course of employment of the appellants, he is liable to be compensated by the appellant. 9. It is further stated that the learned Commissioner has awarded interest @ 6% on the compensation amount which is very low and required to be enhanced. 10. It is further stated that since the amount has not been paid within a period of 30 days, the claimant is entitled for a penalty amount @ 50% of the compensation amount but only a lump sum amount of Rs.2,000/- has been paid towards the penalty amount. 11. It is further stated that the learned Commissioner has calculated and awarded compensation by multiplying the multiplicand with 40% only whereas it should have been 60%. Lastly, it is stated in the cross objections that since the deceased was receiving Rs.1,000/- per month salary, the learned Commissioner has calculated the compensation by taking the income of deceased as Rs.572/- being the minimum wages instead of Rs.1,000/-. 12. I have considered the submissions made at the Bar and have gone through the record of the case. 13. It is a fact which has been proved that deceased Farooq Hussain was in the employment of the appellant and was being paid per month by the appellant No.2 Dinesh Kumar. 12. I have considered the submissions made at the Bar and have gone through the record of the case. 13. It is a fact which has been proved that deceased Farooq Hussain was in the employment of the appellant and was being paid per month by the appellant No.2 Dinesh Kumar. While working at the workshop, the deceased died at the workshop on 02.09.1995 because of the work pressure or a fact which is not known. Although there is no specific reason mentioned in the postmortem report with respect to the cause of death of the deceased Farooq Hussain, therefore, it can safely be presumed that as per Section 3 if a personal injury is caused to a workman by an accident arising out during the course of employment, the employer shall be liable to pay compensation in accordance with the provisions of Workmen Compensation Act. 14. Admittedly Farooq Hussain died during the course of employment. Further, since there is no specific assertion that deceased was suffering from a disease or was otherwise not fit which may be a cause of death, therefore, the finding arrived at by the learned Commissioner, Workmen Compensation cannot be found fault with. 15. Since, the judgment relied upon by the learned counsel is not having any application in the present case as the death caused to Shri Farooq Hussain was during the course of his employment with the appellants, therefore, the compensation awarded by the Commissioner, Workmen Compensation Act is just and proper. 16. As far as the multiplicand required to be multiplicated with 40% of the sum of multiplicand is concerned, the prevailing rate at the time of passing of the order by the Commissioner, Workmen Compensation Act was 40% only, and, therefore, no error was committed by the learned Commissioner. Since there was no documentary proof or otherwise with respect to the payment of Rs.1,000/- per month as salary to the deceased, the learned Commissioner was absolutely right in taking into consideration the minimum wages prevailing at the time of death of the deceased while computing the monthly remuneration of the deceased from the employer. 17. The learned Commissioner has also awarded a penalty of a lump sum amount of Rs.2,000/-. 17. The learned Commissioner has also awarded a penalty of a lump sum amount of Rs.2,000/-. Since, the payment was not done within a stipulated period of 30 days from the date of death of the deceased in its discretion which appears to be just and proper in the facts and circumstances of the present case. 18. As far as the contention raised in the cross objections with regard to the amount of interest is concerned, the same has rightly been paid @ 6% as the Act of 1923 provide for the compensation along with interest to be paid @ 6% to 12% and, therefore, the interest on award @ 6% is in accordance with the provisions of law. 19. Therefore, the grounds on the basis of which the cross objections are raised are not convincing this Court to enhance the amount already awarded by the Commissioner, Workmen Compensation Act vide its order dated 18.06.2001. 20. Having taken into consideration all these facts, I am of the view that no interference in the order dated 18.06.2001 passed by the learned Commissioner, Workmen Compensation Act is required, there fore, the same is upheld. The appeal as well as cross objection filed by the parties are dismissed.