Miscellaneous Appeal No. 295 of 2013 · The High Court
Case Details
1 Miscellaneous Appeal No. 295 of 2013 IN THE HIGH COURT OF JHARKHAND AT RANCHI Miscellaneous Appeal No. 295 of 2013 1. Manjhali Devi, wife of Sri Fagu Soren Fagu Soren, son of Sri Naku Soren 2. 3. Raju Soren, son of Sri Fagu Soren 4. Sukumuni Kumari, daughter of Sri Fagu Soren Appellant nos. 3 and 4 at present minor as such they are being represented through their father/natural guardian/next friend namely Fagu Soren, appellant no.2 herein All resident of Village Mayapur, Tola Kari Pahari, P.O. Koyaridih, P.S. Sariya (Bagodar), District- Giridih … Appellants -Versus- 1. Lakhan Sonar, son of Late Bulak Sonar (Owner of Tractor no. JH 11 C 0932 & Trailor No. JH 11 C 0633) Resident of Village and P.O. Balak, P.S. Bagodar, District- Giridih 2. Matal Swarnkar, son of Sri Nav Ratan Swarnkar, Resident of Village Gurguriyatand, P.O. & P.S. Bagodar, District- Giridih 3. Universal Sompo General Insurance Co. Ltd. Patna Branch office, Unit No.402, Grand Plaza, Fraser Road, P.O.- Patna-800001, P.S. Kotwali, District- Patna (Bihar) 4. Universal Sompo General Insurance Co. Ltd., 201-203 Crystal Plaza, Opposite Infintt Mall, UNK Road, P.S. Andheri, P.O. Andheri-406058 (Maharastra) … Respondents -----
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Appellants For Respondent No.1 For Respondent No.2 For Respondent Nos. 3 & 4 : Mr. Arvind Kumar Lall, Advocate : Mr. Dhirendra Kumar Deo, Advocate : Mr. Samavesh Bhanj Deo, Advocate : Mr. Alok Lal, Advocate ----- 14/31.01.2023 Heard Mr. Arvind Kumar Lall, learned counsel for the appellants, Mr. Alok Lal, learned counsel for respondent nos. 3 and 4, Mr. Dhirendra Kumar Deo, learned counsel for respondent no.1 and Mr. Samavesh Bhanj Deo, learned counsel for respondent no.2. 2. The present appeal has been filed against the judgment/award dated 26.08.2013 passed in W.C. Case No.65 of 2011 by the learned Presiding Officer, Labour Court, Deoghar. 3. The claimants filed the compensation case before the learned Presiding Officer, Labour Court, Deoghar stating therein that Late Sonaram 2 Miscellaneous Appeal No. 295 of 2013 Soren was a labourer under the employment of Lakhan Sonar and Matal Swarnkar who was coming from Barakar river after loading the sand in trailor No.JH-11C-0633 and due to unload the sand at Bagodar Referral Hospital. Opposite party nos. 3 and 4 are insurer of the tractor and trailor in question and the policy was valid in between 18.09.2009 to 14.05.2010. The trailor and tractor reached near Vivekanand school in Saraiya road the driver was driving the vehicle rashly and negligently and lost balance. Due to loss of balance, the tractor and trailor came on unmettled road and the labourer Sonaram Soren was thrown from the trailor and crushed by wheels of the tractor and died at spot. The other labourer also sustained injuries. The dead body of deceased was brought to Bagodar Police Station and at Sadar Hospital, Giridih and postmortem examination was done. The alleged accident took place on 04.01.2010. The claimants have further stated that monthly income of deceased was Rs.4,000/- and per day khoraki was Rs.30/- and he was 22 years of age at the time of death. They have claimed Rs.6,00,000/- as compensation. 4. On these pleadings, the notices were issued. The learned court after considering the evidences on record has been pleased to direct to pay sum of Rs.4,43,000/- in favour of the claimants against Universal Sompo General Insurance Co. Ltd. payable within a month from the date of award. It was further ordered that if the amount is not paid within given time, the Insurance Company is also liable to pay interest @ 12% per annum from the date of award till the date of payment. 5. Mr. Arvind Kumar Lall, learned counsel for the appellants submits that this appeal has been filed for enhancement of compensation on the ground that interest has been provided from the date of award, whereas it should 3 Miscellaneous Appeal No. 295 of 2013 be from the date of accident in light of Section 4A(3)(a)(b) of the Employee's Compensation Act, 1923. He further submits that this aspect of the matter has been recently considered by the Hon'ble Supreme Court in P. Meenaraj v. P. Adigurusamy and another; (2022 ACJ 1001). 6. Paragraphs 4, 5 and 10 of the said judgment are quoted herein below: “4. The relevant background aspects are that on 29.05.2010, the appellant, being an employee (driver) of the 1st respondent, suffered injuries in the course of employment and made a claim for compensation by way of Claim Petition No. 549 of 2010 under Section 10 of the Employees’ Compensation Act, 1923, before the Commissioner concerned, who awarded a sum of Rs. 4,76,898/- (Rupees Four Lakhs Seventy-Six Thousand Eight Hundred and Ninety Eight) as compensation to the appellant with a direction to the 2nd respondent/insurer to deposit/pay the amount within 30 days from the date of receipt of copy of the order, failing which, to pay interest at the rate of 12% p.a. after the expiry of 30 days from the date of accident. 5. It appears that before the High Court, the only question raised on behalf of the appellant was as to the date from which interest fell due, as specifically noticed in paragraphs 3 and 4 of the impugned judgment. The High Court referred to an earlier decision of that Court in the case of M. Rajamanickam v. G. Shivasankar and Anr. (C.M.A. No. 166 of 2014) wherein, with reference to a decision of this Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr.: AIR 1976 SC 222, the High Court had held that in such compensation cases, if the compensation is not paid within the statutory period of 30 days, the liability of interest commences after the expiry of 30 days from the date of accident. 10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident.” 4 Miscellaneous Appeal No. 295 of 2013 7. By way of relying on this judgment, learned counsel for the appellants submits that that part of award is required to be modified. 8. Learned counsel for the appellants further submits that the learned Labour Court has not given amount on the point of Khoraki, which was required to be allowed in favour of the claimants in view of the judgment of the Hon'ble Supreme Court in Jaya Biswal v. Branch Manager, IFFCO Tokio General Insurance Company Limited; [2016 (1) T.A.C. 713 (SC)]. 9. Paragraphs 15, 16 and 17 of the said judgment are quoted herein below: “15. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: “13-A. Maintenance of registers and records-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein.” 5 Miscellaneous Appeal No. 295 of 2013 From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. In view of the foregoing, the judgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside. 16. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to the Driver’s License produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due’, is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under: Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-. Funeral expenses to the tune of Rs.25,000/- are also awarded. 17. The total amount of compensation payable thus comes to Rs.10,92,850/-. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. 25,000/-.” 10. On the other hand, Mr. Alok Lal, learned counsel for respondent nos. 3 and 4 submits that in absence of holding any employee-employer relationship, the learned Labour Court has passed the order. Thus, there is illegality in the judgment/award. 11. Mr. Dhirendra Kumar Deo, learned counsel for respondent no.1 submits that there is no relationship of employee-employer. 12. Mr. Samavesh Bhanj Deo, learned counsel for respondent no.2 submits that there was complete insurance. The insurance of the vehicle was there and in that view of the matter, the learned Labour Court has rightly passed the liability amount upon the Insurance Company. 6 Miscellaneous Appeal No. 295 of 2013 13. In view of the above facts and submissions of the learned counsel for the parties, the Court has gone through the materials on the record. Admittedly, the accident took place on 04.01.2010. The tractor in question was was insured with Universal Sompo General Insurance Company Limited. In spite of notice, respondent no.2 has not appeared before the Labour Court. Respondent nos. 3 and 4 have also not appeared before the Labour Court in spite of sufficient time was given by the Labour Court, however the Insurance Company has appeared later on. Respondent no.1 has appeared before the Labour Court and he has denied, however he has not made any evidence with regard to employee-employer relationship and in view of that, the contention of respondent no.1 is not accepted by this Court. The Insurance Company has not challenged the award and in that view of the matter, the contention of the Insurance Company is not accepted by this Court. Admittedly, the claim was allowed in favour of the claimants, however interest was allowed from the date of the award, which is required to be modified in view of the judgment of the Hon'ble Supreme Court in P. Meenaraj (supra) from the date of accident i.e. 04.01.2010. Accordingly, interest part is modified to the effect. The learned Labour Court has not awarded the amount of Khoraki, which is required to be modified in view of the judgment passed by the Hon'ble Supreme Court in Jaya Biswal (supra). 14. Accordingly, the amount of compensation payable to the appellants by Universal Sompo General Insurance Company Limited, is calculated as under: Monthly salary: Rs.4,000/- + Khoraki: Rs.900/- (Total: Rs.4,900/-) According to Schedule IV of the Act, multiplier factor is 221.37 Rs.4,900/- x 50% x Rs.221.37 = Rs.5,42,356.50/- 7 Miscellaneous Appeal No. 295 of 2013 Thus, total amount of compensation payable thus comes to Rs.5,42,356/-. The aforesaid amount will be payable from the date of accident along with simple interest @ 12% per annum. 15.
Decision
In that view of the matter, the appeal is allowed in above terms and award is modified and the appeal stands disposed of. 16. Let the L.C.R. be sent back to the concerned court forthwith. Ajay/ (Sanjay Kumar Dwivedi, J.)