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2018 DIGILAW 13 (JK)

Chanchalo Devi v. General Manager FCI, Jammu

2018-01-29

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. This Civil 1st Miscellaneous Appeal has been preferred under Section 30 of Employees Compensation Act, for enhancement of award of compensation dated 08.05.2017 passed by the Commissioner under Employees Compensation Act 1923 (Assistant Labour Commissioner), Jammu. 2. The facts leading to filing of this appeal briefly stated are that Puri Ram, the husband of the appellant during the course of his employment with Food Corporation of India, while was handling the work of loading of food grains from Shed-B at New Godown, Jammu to the Trucks on 10.10.2014, suffered fatal injuries at low back as a result whereof he was rendered permanently disabled owing to have lost sensation of both his limbs. His disability was assessed as 100% by the Medical Board on 21.01.2015 and he died due to said injuries on 08.06.2015. The Manager Food Storage depot (FSD for short) on 10.10.2014 itself intimated Area Manager of Food Corporation of India regarding the accident vide its letter No.FSD/NG/GCPT/2014/5955. Puri Ram initially remained admitted in Govt. Medical College Hospital, Jammu and thereafter at Amandeep Hospital, Amritsar and despite he remained bedridden, not even a single penny was paid to him by his employer nor even any amount was deposited with the Commissioner as against the statutory requirement of law as provided under Section 4-A(2) of the Act. The representations of the office bearer of Food Corporation of India Worker’s Union made from time to time were also not considered and due to financial constraints and because of he having suffered with Paraplegia with grade zero power in both lower limbs with sensory loss and bowel and bladder involvement, he died as stated above on 08.06.2015. The appellant claimed Rs.19.00 lacs as compensation and interest at the rate of 12% thereupon from 10.10.2014, the date when he suffered fatal injuries which rendered him permanently disabled and also claimed that penalty be imposed upon the respondent for having not paid the amount of compensation from the date, it fell due to Puri Ram, now deceased. It is further stated that the Commissioner even did not put the respondents to notice for showing cause before delivering the judgment to show cause that as to why the penalty of an amount not exceeding 50% of the amount of compensation be not imposed for not paying the compensation to Puri Ram when it fell due. It is further stated that the Commissioner even did not put the respondents to notice for showing cause before delivering the judgment to show cause that as to why the penalty of an amount not exceeding 50% of the amount of compensation be not imposed for not paying the compensation to Puri Ram when it fell due. The Commissioner failed to exercise the power as vested in it under Section 4-A(3)(b) of the Act. 3. For facility of reference, Section 4-A of the Act is reproduced as below: “4-A Compensation to be paid when due and penalty for default. (1) Compensation under Section 4 shall be paid as soon as it falls due. (2) 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 extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. (3) 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 shall- (a) Direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and (b) If, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty; Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.” 4. It is further stated that the Commissioner under the Act returned the finding after appreciating the medical evidence that the death of Puri Ram had been caused due to the fatal injuries he suffered in the accident on 10.10.2014 and that the injuries made him 100% disabled, however, while awarding compensation in terms of Section 4(1) read with Schedule-4 of the Act granted an amount of Rs.4,84,200/- to the petitioner/appellant and also granted interest @ 9% on the sum of award w.e.f 29.07.2015 up to the date of decision of the petition by holding that the respondent General Manager delayed the payment of compensation. The relevant portion of the order of the Commissioner reads as under: “The finding on the issue is as under:- The deceased was an employee of the respondents and died due to injuries sustained by him in an accident occasioned on 10.10.2014 gets proved in favour of the petitioner. The medical record appended with the file bolster the same factum. The witnesses appeared in the witness box testimony the fact that the death of deceased was due to injuries which he received in accident occurred on 10.10.2014. Though the respondents taken the plea that the deceased has not died due to the injuries sustained by him in the accident occasioned on 10.10.2014, but on the contrary there is no evidence available with the respondents that the deceased met with his death due to some other reasons. Preponderance of probabilities in this matter goes a long way to establish that the deceased died owing to the injuries, which he received in the accident occasioned on 10.10.2014 which made 100% disabled to the deceased and not by any other means. So, the issue No.2 proved in affirmative. Issue No.3. The onus of this issue was also on the plaintiff. As per medical record i.e disability certificate of the deceased, appended with the file the age of the deceased is depicted as 50 years in the year 2015. Having regard to the opinion of the doctor the court has decided to go by that age as shown in medical record for determination of deceased’s age at the time of his death. It means that the deceased have completed 59 years of age on his last birthday at the time of accident. Having regard to the opinion of the doctor the court has decided to go by that age as shown in medical record for determination of deceased’s age at the time of his death. It means that the deceased have completed 59 years of age on his last birthday at the time of accident. As regards wages of deceased, though the wages of the deceased proved by the petitioner are more than Rs.40,000/- pm but on the contrary the maximum wage limit as provided under the Act is Rs.8,000/- for computation of compensation. Thus, the wages of the deceased is deemed to be Rs.8000/- pm at the time under reference. As such the wages of the deceased is taken as Rs.8000/- pm and age as 59 years for computation of compensation. Relief:- In the light of above observations made, I hold dependent of the deceased entitled to compensation in terms of Section 4(1) a read with schedule IV of the Employee’s Compensation Act. Accordingly, an award of Rs.4,84,200/- (Rupees four lakh eighty four thousand two hundred only) is passed of the favour of the dependent of the deceased and against respondents. Besides under Section 4A(3)(a) of the Act an interest of Rs.76,262/- (Rupees seventy six thousand two hundred sixty two only) @ 9% w.e.f 29.07.2015 to 08.05.2017 is also imposed upon respondent No.1 for delaying payment of compensation to the claimant. Under Section 4(4) of the Act, the petitioner is also entitled to a sum of Rs.5,000/- (Rupees five thousand only) towards funeral expenses of deceased. So respondent No.1 i.e. General Manager (Region) Food Corporation of India, Rail Head Complex, Jammu, is directed to deposit an amount of Rs.5,65,462/- (Rupees five lakh sixty five thousand four hundred sixty two only) in this court within 30 days of the passing of these directions, failing which the same shall be recovered as arrears of land revenue by invoking section 31 of the Act. It should be noted that if the respondents failed to deposit the above said amount within a span of 30 days from the date of passing of this award, interest @12% would be attracted on the compensation amount (Principal amount only) from the date of award till its actual realization. No order as to costs. Copy of the order be communicated to the opposite party for compliance.” 5. Heard learned counsel for the appellant and perused the record. 6. No order as to costs. Copy of the order be communicated to the opposite party for compliance.” 5. Heard learned counsel for the appellant and perused the record. 6. Bare perusal of award passed by Commissioner, it is evident that after appreciation of evidence produced by claimants, he assessed the income of deceased as Rs.8000/- PM and took age of deceased as 59 years at the time of death and by applying proper multiplier as per Act granted Rs.4,84,200/- as compensation; Commissioner has also imposed Rs.76,262/- (Rupees seventy six thousand two hundred sixty two only) as interest @ 9% w.e.f 29.07.2015 to 08.05.2017 ( from the date of filing petition till passing of award ) in terms of section 4(1) of Act. Petitioner was also held entitle to Rs.5000/- towards funeral expenses of deceased. 7. But in case of Pratap Narain Singh Deo. Vs. Shrinivas Sabata and Anr. AIR 1976 SC 222 , issue has been directly answered by 4 judges bench. Paragraph 7 and 8 of the judgment are quoted herein below:- “7. Section 3 of the Act deals with the employer’s liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if “personal injury is caused to a workman by accident arising out of and in the course of his employment.” It was not the case of the employer that the right to compensation was taken away under sub-section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner’s order dated May 6, 1969 under Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer’s liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary. 8. It was the duty of the appellant, under Section 4- A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent’s personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.” 8. Consequently, the interest in the instant case would fall due from date of accident i.e. from 10.10.2014 and it should be 12% PA from 10.10.2014 till realization. Accordingly, it is directed that the respondent shall be liable to pay the interest from the date of accident i.e. from 10.10.2014 and it should be simple interest @12%/ PA from 10.10.2014 till realization of compensation awarded. 9. This appeal stands disposed of in the aforementioned terms.