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2024 DIGILAW 567 (GUJ)

Divisional Controller (Amreli) v. Devendrabhai Rameshchandra Bhatt (Deceased Thru Legal Heirs)

2024-03-18

DEVAN M.DESAI

body2024
JUDGMENT : 1. Heard learned advocate Mr. Hardik Rawal for the appellant and learned advocate Mr. Pravin Gondaliya for the respondents. 2. By way of the present Appeal under Section 30 of the Workmen’s Compensation Act, 1923, the appellant has challenged the judgment and order dated 31.07.2013 passed by the learned Labour Court, Amreli in Workman Compensation (Non-fatal) Application No.3 of 2008. 3. The brief facts narrated in the present appeal are as under:- 3.1 The respondent -workman was working with the appellant as a driver. While driving S.T.Bus bearing No.GJ-18-V-6736 on 08.09.2003, a truck bearing No.GJ-4U-5433 came from opposite side in rash and negligent manner and dashed with the S.T.Bus. Resultantly, workman received serious injuries. 4. Learned advocate for the appellant has submitted that the respondent – original claimant was working with the appellant-Corporation as a driver. On 08.09.2003, during the course of employment, he met with an accident. Resultantly, he sustained injuries. Thereafter, he filed an application for compensation being Motor Accident Claim Petition No.816 of 2004 before the Motor Accident Claims Tribunal (Aux.) at Bhavnagar, which came to be dismissed. The workman filed Workman Compensation (Non-fatal) Application No.3 of 2008 before the learned Labour Court, Amreli, which came to be partly allowed. Hence, the present appellant is before this Court. 4.1 It is further submitted that there was a delay of approximately 5 years in filing the application before the learned Labour Court for compensation. The learned Labour Court framed issues at Ex.9 and after considering the evidence on record, partly allowed the claim application and directed the appellant herein to deposit an amount of Rs.1,84,454/- with 12% simple interest from 08.10.2003 alongwith 25% penalty to the original claimant. 4.2 It is further submitted that the learned Labour Court has not properly considered the oral as well as documentary evidence while partly allowing the application. The learned Labour Court has misread the evidence adduced on record and awarded higher amount of compensation to the original claimant. It is also submitted that the learned trial Court has committed an error by awarding 25% penalty and has not considered the fact that after the delay of approximately 5 years, the original claimant has preferred the claim petition before the learned Labour Court. Thus, the award of penalty at 25% is on higher side without any basis. Therefore, the observations and findings made by the learned Labour Court are perversed. Thus, the award of penalty at 25% is on higher side without any basis. Therefore, the observations and findings made by the learned Labour Court are perversed. 5. Per contra, learned advocate Mr. Gondaliya for the respondent-original claimant has supported the impugned judgment and submitted that the learned Labour Court has rightly considered the materials available on record. 5.1 It is further submitted that the original claimant-respondent herein has expired leaving behind old parents and daughter. Motor Accident Claim Petition No.816 of 2004 for compensation was filed before the learned Motor Accident Claims Tribunal (Aux.) at Bhavnagar, which came to be rejected on 12.12.2019 on the ground that the workman has preferred Workman Compensation (Non-Fatal) Application No.3 of 2008. Thus, looking to the age of the parents of deceased, the learned Labour Court has rightly awarded the percentage of penalty, which calls for no interference. 6. Having considered the submissions and the impugned judgment and award, it transpires that the original claimant – Devendrabhai Rameshchandra Bhatt was serving with the present appellant as a driver. On 08.09.2003, during the course of employment, workman was plying S.T.Bus bearing No.GJ-18-V-6736, and a truck bearing No.GJ-4U-5433 came from opposite side in rash and negligent manner and dashed with the Bus of workman. Resultantly, he received serious injuries on left leg and knee. Thereafter, he was taken to hospital and he was operated and was advised to take rest for 6 months. Since the workman sustained injuries on leg, the appellant herein refused to take the workman on duty. Resultantly, pursuant to the order passed by this court, the workman was taken as a helper with the appellant corporation. Thereafter, the workman filed an application for compensation of Rs.4,61,136/- with interest and penalty against the present appellant. The claim application was contested by the present applicant by filing Written Statement at Exh.8 and denied their liability to pay compensation. After considering the oral evidence of the workman at Exh.12, the oral evidence of the witness Dhavalkumar Upendrabhai Vagehla at Exh.66 and after considering the documentary evidence on record, the learned Labour Court has partly allowed the claim application. The learned Labour Court has considered the income of the workman at Rs.7,315/- per month and considered 40% loss in earning capacity and applying the factor at 192.14, awarded the compensation of Rs.1,84,454/-. The learned Labour Court has considered the income of the workman at Rs.7,315/- per month and considered 40% loss in earning capacity and applying the factor at 192.14, awarded the compensation of Rs.1,84,454/-. During the course hearing, appellant could not point out any perversity or illegality committed by the learned Labour Court in arriving at the findings which is based on the facts. After considering the oral as well as documentary evidence led by the workman, the learned Labour Court has considered the income of the workman on the date of accident. There is no contrary evidence led by the appellant to dislodge the fact that, the workman was not drawing salary Rs.7,315/- per month on the date of accident. Therefore, in my view, I do not find any reason to interfere in the findings of fact which has been arrived by learned Labour Court after considering evidence on record. 7. The next question which has been raised by the appellant is that, the date of accident i.e. on 08.09.2003 and after a period of 5 years, claim application under Workmen’s Compensation Act, 1923 was preferred without explaining any genuine reason. Thus, the workman has taken such as long time in filing the claim application under the Workmen’s Compensation Act, 1923 and the learned Labour Court without assigning cogent and reliable evidence, awarded 25% penalty. Hence, this Court is of the view that the learned Labour Court has assessed penalty on higher side. The reasonable percentage of penalty would have been awarded in favour of the workman. In my view, reasonable percentage of penalty would be 15% instead of 25% looking to the facts and circumstances of the case. 8. So far as the awarding interest is concerned, the learned Labour Court has committed an error in awarding interest from 08.10.2003. The interest ought to have been awarded from the date of accident i.e. 08.09.2003. 9. In view of the aforesaid facts and circumstances of the case, the impugned judgment and award is modified to the extent that the original claimant/s is entitled to compensation of Rs.1,84,454/- with 12% simple interest from 08.09.2003 till realization with 15% penalty. The impugned judgment and decree is modified to the aforesaid extent. 10. For the foregoing reasons, the present First Appeal, is partly allowed. Record and proceedings be sent back to the concerned trial Court forthwith. 11. The impugned judgment and decree is modified to the aforesaid extent. 10. For the foregoing reasons, the present First Appeal, is partly allowed. Record and proceedings be sent back to the concerned trial Court forthwith. 11. The amount of compensation of Rs.4,50,067/- with interest and penalty which has been deposited by the appellant before the learned Labour Court at the time of admission of First Appeal may be given credit while calculating the modified amount. The excess amount deposited by the appellant to be refunded to the appellant. Remaining amount to be disbursed in favour of the original claimant/s after due identification and verification.