PELLANT Rajendra Kumar Dewangan v. APPEAL UNDER SECTION
Case Details
M Cn' IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISCELLANEOUS APPEAL (C) N0. " ' _/2Q10 8J5', A@ eSgVSi'' "?f5: (^•••- APPELLANT ; [GLAIMANT['^Ky ^.^s^^ ^*****' gawd-"" RESPONDENTS Rajendra Kumar Dewangan, S/o Dayal Ram Dewangari, aged about 29 years, 8s Vehicle Occupation-Mice Operator Driver, R/o Baigapara, Durg, Tehsil & District-Durg (C.G.) VERSUS i: 1) Thakur Mahesh Singh, S/o Shri Bahadur Singh, R/o Swar Sangam, Amapura, Kutehahri Road, Durg, Tehsil 85 District- Durg (C.G.) Owner of Vehicle NO.CG-07/C-4005 2) The Divisional Manager - The New India Limited, Nehru insurance Company Memorial Hall, IIIrd Floor, Dr. Ambedkar Road, Pune (M.S.) Through: Divisional Manager, The New India Insurance Co. Ltd., G.E. Road, Power House, Bhilai, District-Durg (C.G.) .... Insurer of the vehicle NO.CG-07/C-4005 Claim before the Commissioner Rs.2,41,195/-^- Claim awarded by Tribunal: Rs. 18,893/- ClEumforenhancementof award to the fune of Rs. 2,22,302/-_ APPEAL UNDER SECTION-30 OF THE WORKMEN'S COMPENSATION ACT 1923 ^o
Legal Reasoning
S.B.: Hon'ble Mr. Justice Abhay Manohar Sapre M.A. (C 1 No.815 of 2010 APPELLANT Rajendra Kumar Dewangan RESPONDENTS Thakur another Mahesh Singh and Versus APPEAL UNDER SECTION 30 OF THE WORKMEN COMPENSATION ACT Anpearance : Mr. P.R. Patankar, Counsel for the appellant. Mr. Pankaj Agarwal, Counsel for respondent No.2. ORAL ORDER (13.03.2013) Heard on I.A. No.Ol, application for condonation of delay in filing the appeal. According to the appellant, the ^ delay is of 61 days. I have gone through the cause stated in the (2) application and in my opinion, it constitutes a sufficient cause for the purpose of condoning the delay. The condonation ofdelay advances cause ofjustice rather than to defeat it. There is no deliberate delay on the part of the appellant in filing the present appeal and, therefore, the delay deserves to be condoned on the grounds stated in the application. •; Accordingly and in view of the aforesaid discussion, (3) the applicadon (I.A. No.Ol) is allowed. The delay in filing fhe present appeal is hereby condoned. ^- z\ (4) Also heard on M.A. (C ) No.815 of 2010. This is an appeal filed by the appellant/claimant (5) under Secdon 30 of the Workraen Compensation Act (in short "the Act") against the award dated 19.01.2010 passed by the Comraissioner for Workmen Compensation, in Case No.l36/W.C. Act/Non Labour Court, Durg (C.G.) Fatal/2007. By the impugned (6) Workmen Corapensation allowed the claim petition filed by the claimant under Section 10 of the Act and awarded to the Commissioner, award, him a total sum. of Rs.18,893/- for the injuries sustained by him in an accident, which occurred on 4.5.2007. The Commissioner also awarded interest at the rate of 10% per annum in the event the awarded amount is not deposited by the one month. non-applicants within Commissioner also awarded penalty at the rate of Rs.4723/- for being paid by the employer to the claimant, because, it was found that he did not ensure compliance of the provisions of the Act by not depositing the amount of compensation within the time specified under the Act. The Facts of the case lie in a narrow corapass. They (7) however need mention in brief. The claimant (appellant herein) at the relevant time (8) was in the employment of respondent No.l and was working as his driver to drive his vehicle i.e Auto bearing registration No.C.G.07C-4005. the claimant while driving this vehiele met with an accident causing grievous injuries in his left hand. The injuiy was so grievous that his three fingers of left hand had to be cut and actually removed by performing operation, because, it was found that they were totally crushed in the accident. On 04.05.2007, 1 J ^ At the time of the accident, the claimant was aged about 29 years and according to him, he was getting Rs.3000/- monthly salary . The vehicle was owned by respondent No. 1 and insured with respondent No-2. This event gave rise to filing of a claim petition by the (9) claimant agairist the respondents under Section 10/22 of the Worknien Compensation Act for the injuries sustained by him in the accident. Lt was alleged that the accident occurred during the course of employment and it arose out of the employment. It was alleged that looking to the injuries sustained by the claimant, his age, the extent of loss caused due to the injuries, his monthly income and the relevant factor applicable to the case, the claimant is endtled to claim a sum of Rs.2,41,195/- inclusive of medical expenses etc from the non-applicants. (10) The case was contested by the non-applicants. However, so far as respondent No.l i.e. employer of the appellant was concerned, he admitted occurrence of the accident and also admitted that the appellant was in his employment and was getting Rs.1500/- per inonth by way of monthly salary and not Rs.3000/-, as alleged by the claimant in his application. (11) Parties adduced evidence. By the impugned award, the Tribunal partly allowed the claim petition It held that the claimant was in the employment of respondent No.l that he was aged about 29 years, (NA-1), getting monthly salary of Rs.1500/-, occurred during the course of employment and arising out that the accident that he was of the employment. The Tribunal then looking to the nature of injuries suffered by the claimant, falling at item Nos.31, 32 8s 33 of Schedule-I Part-II of the Act and ^ ^ accordingly, applying the provisions of Section 4A coupled with relevant factor (209.92) as specified in schedule IV, is entitled to came to a conclusion that the claimant compensation of Rs. 18,893/-. In addition and as observed supra, a penalty of Rs. 4723/- was also awarded by the In this way, a total sum of Rs.l8,893/-+ Tribunal. Rs.4723/- = Rs.23,616/- was awarded with interest as mentioned above. It is this award which is impugned by the claimant in this appeal. (12) Submission of learned counsel for the appellant was manifold. learned counsel for the In the first instance, appellant contended that the Commissioner having recorded a finding in favour of the claimant of the loss sustained due to injuries and by applying proper factor, erred in awarding a total sum of Rs.18,893/-. Learned counsel pointed out that in the light of finding recorded, the claimant was entitled for Rs.1,88,910/- by way of compensation in place of Rs.18,893/- which seems to be typographical error. Learned counsel further pointed out that applying the factor to the percentage of loss of 60% , the eventual calculation comes to Rs.1,88,928/- and not Rs.18893/-. Learned counsel then contended that the that Tribunal erred in awarding interest at the rate of 10% and too made payable from the date of application. According to him, the claifflant was entitled to claim interest at the rate of 12% per annum from the date of the accident as laid down by the Supreme Court in a case reported in 2976 1 SCC 289 {Pratcm Narain SinahDeo Vs. Srlnivas Sabata. and anotHer}. (13) Learned counsel then contended that on acceptins the finding of the Coramissioner as it is, the amount of ^ ,^s~ "W%. .^'^^''•K: K Ws. y ii 1 v^--s-1.. "^•^.—..i^''' ^'scx"'."'"'' s' ^l penalty should have been much more than what has been awarded to the claimant, because, since the Comniissioner came to a conclusion that the claimant is entitled to claim a sum of Rs.18,893/- and therefore, he awarded a penalty of Rs.4723/-, but on proper calculation, if the clairaant is held entitled to a sum Rs.1,88,928/-, then, in that event and in all fairness, the Cornmissioner should have imposed penalty of a higher amount counsel lastly submitted that apart from this submission, than Rs.4723/-. Learned this Court should also hold by reversing the factual findini of the Cominissioner that the claimant's monthly salary was Rs.3000/- and not Rs.1500/- as has been held by the Commissioner, then, accordingly, by applying the relevant factor, award a reasonable compensation for the injuries sustained by fhe claimant. (14) appearing for In reply to these submissions, learned counsel the Insurance Company supported the impugned award but fairly admitted that so far as typographical error in calculation of corapensation is concerned, the same seems to have been crept in the award and on the basis of the finding recorded by the Comniissioner, the claimant was at least entitled to claim a sum ofRs.1,88,928/- and not Rs.18,893/- (15) None appeared for despite service of notice. respondent No.l (employer) (16) Having heard the learned counsel for the parties and on perusal of the record of the- case, I find force in the submission of learned counsel for the appellant in part and accordingly allow the appeal in part to the extent indicated infra. (g ^ (17) Coming first to the submission of learned counsel for the claimant's monthly salary was the appellant that Rs.3000/- and not what has been held by the Tribunal i.e. Rs.1500/-, this submission is not acceptable for raore In the first place; respondent No.l than one reason. (employer) himself in his written submission, stated in categorical terms that he was paying Rs.1500/- per month to the claimant by way of salaiy. The claimant did not file any documentaiy evidence. to prove his monthly salaiy in support of his statement except his oral version. . That apart, this being a question of fact and the Tribunal havin^ come to a conclusion on appreciating the evidence that the claimant's monthly salary was Rs.1500/-, I find no justification in interfering with this finding of fact and accordingly the uphold this finding and hold that claimant's monthly salary was Rs.1500/- and that the Tribunal was right in coming to this conclusion. (18) This takes me to the next question as to whether the Tribunal wasjustified in awarding Rs.18,893/- or it should have awarded Rs.1,88,928/-. In my opinion and as rightly argued by learned counsel for the appellant and fairiy conceded by learned counsel for the respondent, on the basis of the finding recorded by the Tribunal itself, the claimant was entitled to a sum of Rs.1,88,928 /- and not Rs.18,893/- towards compensation. It is for the simple reason that there seems to be a typographical error committed by the Commissioner, while calculating the aruount determined. A mere calculation clearly goes to show that Rs.900 x 209.192 -^makes a total sum of Rs.1,88,928/-. (19) Under these circurastances and in this view of the matter, I hold by upholding the finding of the Tribunal on -^ ^ all factual issues except the finding of Rs.18,893/- that the claimant (appellant herein) is endtled to claini a total the sum of Rs.1,88,928/-. In other words, in my view, claimant is entitled for a total sum of l.88.928/- by way of compensation for the injuries sustained by him. (20) Now so far as award of interest and the date from which it is payable is concerned, admittedly, in this case, the Comniissioner, Workmen Compensation, did not award interest from the date of accident, but awarded frora the date of filing of the application. Here, also he erred. Similarly, the Commissioner also comruitted error in awarding interest @ 10% per annum. It should have been at the rate ofl2% per annum - it being a statutory rate of interest specified in Section 4A of the Act. The law on this point is well settled by the decision of Supreme Court in the case of Pratap Naravan Sinah Isupra). It is in this case their Lordships has held that the claimants are entitled to claim interest under Section 4A of the Act from the date of accident, if the same is not paid by the eraployer to the injured or deceased's dependents, as the case inay be, within one month from the date of accident. This is what was held by the Supreme Court in this case : contend that is wrong to "It the compensation had not faUen due until it was settied by fhe Commissioner under Section 19 by his irapugned order dated May 6, 1969. The eniplover becaine liable to pay fhe conipensation as soon as fhe the personal workman which admittedlv arose out of a.ndjn_the course of emolovment._There was no suspension of the coinpensation pending settiement. the appellant under Section 4A(1) of the Act. to pay the compensation at the_rate_ injury was - caused to It was the dutv of ':accident the bv »' ? ^ BloYided bv Section 4 as soon as the tbe personal resoondent." iniurv was caused to (emphasis supplied) (21) This view was reiterated by the Supreme Court by clarifying the legal position in two cases reported in (1999) 8 SCC 254, Kera.la. State Electricitu Board and_ another Vs. Valsala K. and another) by the following words : "3. A four-Judge Bench of ftlis Court in Pratap Narain Singh Deo v. Srinivas Sabata speaking through Shingha, J. has held that an employer becomes liable to pay corapensation as soon as injury is caused to the the personal workman by the accident which arose of and in the course of eniployraent. Thus, the relevant date for detemiination of the rate_of comBensation is_the date of the accident and not the date of adiudication of th& claim. Our injuries attention has also been 5. drawn to a judgment of the FuU Bench of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi wherein the Full Bench precisely considered the same question and examined bofh the above- noted judgments. It took the view that the injured workman becoines entided to get compensadon the moinent he suffers types personal contemplated by the provisions of the is Workmen's Compensation Act and it the amount of compensation payable on the date of the accident and not the amount of coinpensation payable on account of the ainendraent made in 1995, which is relevaat. The decision ofthe Full Bench of fhe Kerala High Court, to the extent it is in accord with the judgment of the larger Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata lays down the correct law and we approve it. the of ^ <7 This decision was recently clarified in the case of (22) Oriental Insurance Co. Ltd. _Ks. Sibu Georae and another, 2012 ^ACJ 2126 wherein the law laid down in Pratap Narayan Singh ccise supra was reiterated and re- affirmed with these words. The decision in Pratap Narain 11. Singh Deo, 1976 ACJ 141 (SC), was by a four-Judge Bench and in Valsala K., 2000 ACJ 5 (SC), by a three-Judge Bench of this court. Both the decisions were, thus, fully binding on the court in Mubasir Ahmed, 2007 ACJ 845 (SC) and Mohd. Nasir, 2009 ACJ 2742 (SC), each ofwhich was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala K. were not brought to the notice of the court in the two later decisions in Mubasir Ahmed and Mahd. Nasir." the that contend payment "12. In light of the decisions in Pratap Narain Singh Deo, 1976 ACJ 141 (SC) and Valsala K., 2000 ACJ 5(SC), it is not open of to compensation would fall due only after or with the Commissioner's reference to the date on which the claim application is inade. The decisions in Mubasir Ahmed, 2007 ACJ 845 (SC) and Mohd. Nasir, 2009 ACJ 2742 (SC), insofar as ttiey took a contrary view to the earlier decisiorts in Pratap Narain Singh Deo and Valsala K. do not express the correct view and do not ruake binding precedents.
Decision
order (23) Accordingly and in the light of discussion, the claimant is entitled to claim interest on the foregoin^ Rs.1,88,928/- at the rate of 12% per annum and that too from 4.5.2007 (date of accident) is paid to the claimant . till it ; (24) This takes me to the last question as to how much penalty should be awarded to the claimant in the facts of this case. The Commissioner awarded 25% of the awarded f C^v^^ * 34 i'':^t t M l~t5>;"'" '";^;.^; .•?- o ^ sum by way ofpenalty i.e. 25% of 18,893/- i.e. Rs.4723/-. In ray view, on this reasoning, the claimant is now held entitled to claim 25% of Rs.1,88,928/- i.e. Rs.47,000/- In this way, it is now held that the claimant is (approx). entitled to claim a sum of Rs.47,000/- by way of penalty from. respondent No.l (employer). (25) Accordingly and in the light of discussion, the appeal the foregoing is allowed in part as indicated is entitled to claim an amount of above. The claimant from 4.5.2007 (date of accident) Rs.1,88,928/- together with interest at the rate of 12% per till annuin payable recoveiy from respondent No.2 (Insurance Company). The is also held entitled to claim a suin of Rs. appellant by way penalty being 25% of Rs.1,88,928/-, the recoverable from respondent No.l 47,000/- (employer). Let awarded sum be deposited by the respondents within three months, failing which, coercive action be taken for its realization. (26) No cost. —-— sh}r[ia Sd/- Abhay Manohar Sapre Judge s-^ ^^