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2019 DIGILAW 118 (KAR)

Laxmi W/o Datta Saragar v. Mohamad Hanif S/o Babajan Bhepari

2019-01-09

S.G.PANDIT

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JUDGMENT : The appellants are before this court seeking enhancement of compensation granted by the Commissioner of Workmen’s Compensation, Vijayapura in No. xxx 57/2010 dated 15.04.2011. 2. The facts of the case are that; the claimants are the wife and children who filed claim petition before the Commissioner for Workmen’s Compensation in respect of the deceased-Datta Saragar who died in an accident on 08.01.2010. The deceased was working as driver under respondent No.1. It is stated that the deceased was earning Rs.9,000/- p.m. Rs.6,000/- as salary plus Rs.100/- daily bhatta. The accident and the death of deceased-Datta Saragar during the course of his employment are not in dispute. 3. The learned counsel for the appellants submits that the Tribunal was not right in taking only Rs.4,000/- as monthly income of the deceased for the purpose of determination of the compensation and further the learned counsel for the appellants submits that the interest awarded by the Commissioner from 16.05.2011 is erroneous. Whereas, the claimants are entitled for interest from one month after the date of accident. 4. Per contra, the learned counsel for respondent No.2 submits that the Commissioner has rightly taken the income of the deceased at Rs.4,000/- per month in the absence of any material to indicate the exact income of the deceased driver. 5. Having heard the learned counsel for the appellants and respondents and on perusal of the records, I am of the view that the following substantial questions of law would arise for consideration:- 1. Whether granting of interest from after one month of the date of the award is opposed to law? 2. Whether the Commissioner for Workmen’s Compensation is justified in not granting funeral expenses to the claimants? 6. The wife and children of the deceased are before this Court seeking enhancement of compensation granted by the Commissioner for Workmen’s Compensation in WC No. xxx 57/2010 dated 15.04.2011, wherein the Commissioner has granted total compensation of Rs.3,06,180/- and granted interest at the rate of 12% from one month after the date of order i.e., from 16.05.2011. 7. The learned counsel for the appellants has contended that the income taken by the Commissioner for determining the compensation at Rs.4,000/- is on the lower side, whereas the deceased was earning a total income of Rs.9,000/- per month including daily Bhata. 7. The learned counsel for the appellants has contended that the income taken by the Commissioner for determining the compensation at Rs.4,000/- is on the lower side, whereas the deceased was earning a total income of Rs.9,000/- per month including daily Bhata. But the claimants have not produced any material to indicate the income of the deceased and the claimants have failed to prove that the deceased was earning a sum of Rs.9,000/- per month. In the absence of any material, the Commissioner has rightly taken Rs.4,000/- per month as income of the deceased which needs no interference. 8. The Commissioner while granting compensation has granted interest at the rate of 12% from one month after the date of the order. The Commissioner for Workmen’s Compensation has passed order on 15.04.2011 awarding compensation. The interest is granted from 16.05.2011 i.e., one month thereafter from the date of passing of the order. 9. Section 4-A of the Employees Compensation Act, 1923 reads as follows:- 4A. 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 per cent. 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 per cent. of such amount by way of penalty. 10. of such amount by way of penalty. 10. The provision would make it clear that the employer to deposit the compensation within one month from the date it fell due and if he fails to deposit the same, he is liable to pay interest. The Hon’ble Supreme Court dealing with Section 4-A of the Act, in Civil Appeal No.7470/2009 decided on 02.11.2018 has held that the claimants would be entitled for interest after one month from the date of accident and held that date of accident would be material for granting interest. Accordingly, I am of the view that the Commissioner for Workmen’s Compensation was not right in granting interest from one month after the date of determining the compensation. Accordingly, the question of law is answered in the affirmative and it is held that the claimants would be entitled for interest on the compensation from one month after the date of accident. 11. The next question is with regard to funeral expenses. It is noticed that Section 4 (4) of the Employees Compensation Act provides for awarding a sum of Rs.2,500/- towards funeral expenses of the deceased/Workmen. The Commissioner erred in not granting funeral expenses. The claimants are statutorily entitled for funeral expenses as noted above. The claimants are entitled for Rs.2,500/- towards funeral expenses. Accordingly, the question is answered in favour of the claimants. Accordingly, the above appeal is allowed in part.