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Sitaram s/o. Narayan Vyawahare v/s Chief Executive Officer Zilla Parishad, Nanded

    First Appeal Nos. 14-A, 110-A of 1982

    Decided On, 14 January 1985

    At, High Court of Judicature at Bombay


    For the Petitioner: A.H. Joshi, Advocate. For the Respondent: R.G. Bhadeker, Advocate.

Judgment Text


These two cross-appeals, First Appeal No. 14-A of 1982 by Sitaram the father of the deceased Rama who died in the accident dated March 1, 1977, and by the Chief Executive Officer, Zilla Parishad, Nanded arise out of the order passed by the Civil Judge (Senior Division) and Ex-Officio Commissioner for Workmen's Compensation, awarding Rs. 13,500/- as compensation to Sitaram, upon the death of his son Rama.

2. Rama Sitaram Vyawahare was in the employment of Zilla Parishad, Nanded on a monthly salary of Rs. 300/-. On March 1, 1977, while he was travelling in truck No. MHB 4420 belonging to the Zilla Parishad, which was engaged for transporting sand from Ardhapur to Limbgaon for the construction of a road by the Zilla Parishad, the truck while negotiating a turn met with an accident in which Rama and

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another labourer were severely injured. They were rushed to the Government hospital at Nanded, but they both succumbed to the injuries on admission. Sitaram could not bear the shock and sent a notice only on 15-12-1979. When he was in a position to initiate action through his Advocate claiming compensation. As there was no response, he filed an application claiming Rs. 19,200/- as compensation together with Rs. 9,600/- as penalty and interest at 6 per cent per annum from the date of accident. The claim was resisted by the Zilla Parishad by contending that Rama was only a causal labourer and not a workman and that he was not travelling on duty when the accident occurred and he was not entitled to compensation. It was contended that Rama was a labourer on daily wages of Rs. 4.65.

3. The learned Commissioner for Workman's Compensation held that Rama was a workman within the meaning of Workmen's Compensation Act, that he had sustained physical injury in the truck accident arising out of and in the course of his employment with the Zilla Parishad and that he succumbed to the injuries sustained in the accident. He also found that Sitaram was dependant on Rama and that he was entitled to Rs. 13,500/- as compensation. The learned Commissioner held that the default in payment of the compensation occurred because the Zilla Parishad entertained doubt as to whether or not Rama was a workman within the meaning of the Workmen's Compensation Act and that no penalty need, therefore, be awarded. Interest was granted at 6 percent per annum from the date of the application i.e. 31-12-1979 and not from the date of the accident.

4. In First Appeal No. 14-A of 1982 by Sitaram, it is being contended that the learned Commissioner was wrong in exercising the discretion against the claimant regarding the character of Rama as workman and that penalty and interest both should be awarded under section 4-A(3) of the Workmen's Compensation Act. In the cross appeal, the Zilla Parishad contended that Rama was not a workman and the compensation should not have been awarded. In any event as there are good grounds for not paying the amount earlier, the penalty and interest as awarded should be held to be sufficient. A preliminary objection was raised to the maintainability of the appeal by the Zilla Parishad on the ground that it raised no question of law as required under the third proviso to section 30 of the Workmen's Compensation Act.

5. It is apparent that under section 4-A(3) of the Workmen's Compensation Act, where any employer is in default in paying the compensation due under the Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six percent per annum on the amount due together with. If in the opinion of the Commissioner, there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty. The Supreme Court has observed in (Pratap Narain Singh v. Shrinivas Sabate)1, A.I.R. 1976 S.C. 222 that in case of a personal injury caused to a workman by an accident which arises out of and in the course of employment, the employer becomes liable to pay the compensation as soon as the aforesaid personal injury is caused to the workman. It was also observed there that where the employer fails to pay the amount and also makes no provisional payment under section 4(2) but challenges the jurisdiction to the Commissioner, the employer is liable to pay interest and penalty. Having regard to the provisions of sub-section (3) of section 4-A, it is apparent that it is beneficent provision made for the benefit of an employee and having regard to the scheme of the Act, the provision for payment of interest and penalty have been enacted with a view to deter the employer from taking facile pleas and avoiding payment of the compensation which becomes payable. Here the amount was not deposited by the employer promptly even after the notice was sent by Sitaram on 15-12-1979 and no provisional payment was made as required. It was observed by the Gujarat High Court in (The Municipal Commissioner, Baroda v. Patel Engineering Co. Ltd.)2, 1976 Accidents Claims Journal 104 that a bare reading of the provisions indicates that the employer is under the obligation to pay the amount of compensation as soon as it falls due and the compensation shall fall due on the date on which the incident occurred. If the employer fails to do so, the law casts a duty on him to pay interest at the rate of 6 per cent if the Commissioner so orders. The employer who does not pay compensation on the date when it falls due can be made liable to pay interest on the amount of compensation because there is a delay in the payment which the statute requires him to pay as soon as it falls due. The learned Commissioner lost sight of this beneficent provision while refusing to make order of payment of interest from the date of accident and not directing payment of the amount of penalty. If the claim could be awarded, then direction for payment of penalty and interest in the circumstances of the present case should have necessarily followed.

6. With regard to the appeal filed by the employer, Shri Bhadekar, the learned Counsel for the employer made a strenuous plea that his appeal could be heard despite the provisions of the provisos to section 30 of the Workmen's Compensation Act. First proviso to section 30 reads that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees. It is difficult to see how the finding that Rama was an employee which came to be recorded on the basis of the evidence by the learned Commissioner, can be said to be a substantial question of law. No such substantial question arises in the present case and the appeal by the employer would be maintainable.

7. There is yet another hurdle in the way of the employer is that the amount was deposited after the appeal was filed and there was a breach of third proviso to section 30 of the Act which provides that no appeal by an employer under Clause (a) shall lie unless that memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. Here the amount had not been deposited and the certificate had not been obtained before filing of the appeal. The appeal of the employer, can not, therefore, lie. I am fortified in this view by the observations of the Mysore High Court in (M.R. Mishrikoti v. Muktumsab Hasansab Asoti)3, 1973 Labour and Industrial Cases 997, where a Division Bench of that High Court took the view that the requirements of depositing the amount of compensation and producing a certificate for having made such deposit which are mandatory are applicable even to an appellant who disputes his having been the employer of the injured or deceased workman. It, therefore, follows that the employer's appeal is not maintainable even on this ground.

8. Sitaram's Appeal No. 14-A of 1982 is allowed. The order passed by the Commissioner for workmen's compensation is modified in that the claimant Sitaram would be entitled to Rs. 6,750/- as penalty and Rs. 4,050/- as interest at 6 percent per annum from March 1, 1977, till the date of deposit, i.e. 1-3-1982, and Rs. 100.00 as costs for both the appeals in one set

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