Dhiyan Singh vs Gulzar Ahmed And Another

S.S. Sudhalkar, J.—The appellant was working as a driver with respondent 1 on vehicle No. HR-07-2607. The vehicle was insured with respondent 2. On January 11, 1991, at about 6.00 P.M., the appellant was coming back from Pehowa to Shahabad while driving his vehicle when his vehicle met with an accident. As a result of this accident, the right hand of the appellant after the shoulder joint had to be amputated. The appellant was getting Rs. 1,000 per month as wages. It is contended that he was 23 years old at the time of accident.

The appellant filed claim before the learned Commissioner for Workmen''s Compensation, Kurukshetra (hereinafter referred to as the Commissioner). The appellant was awarded Rs. 8,674 as compensation. This is an appeal filed by the appellant for enhancement of the compensation. Learned Commissioner had not awarded penalty and interest and the appellant has also prayed for the same in this appeal.

I have heard learned counsel for the appellant.

So far as the pay of the appellant is concerned, learned Commissioner has held that the appellant was earning Rs. 1,000 per month. Learned Commissioner has based the compensation on the loss of earning capacity being 80 per cent as per schedule (i) to the Workmen''s Compensation Act (hereinafter referred to as the Act). Counsel for the appellant argued that the earning capacity is totally lost because the appellant was driver and that because of amputation of one hand, he will not be able to function as a driver and, therefore, there is a total loss of earning capacity. He has cited the case of Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, . It has referred to Sec. 2(1)(l) of the Act which defines total disablement. The Commissioner in that case had found that the injured workman was a carpenter by profession and by the loss of the left hand above the elbow, he could not do work as carpenter by the other hand and the finding that the petitioner in the case was rendered unfit for the work of carpenter was held to be a correct finding. Relying on this judgment, learned counsel for the appellant argued that in this case also, the appellant should be held to be totally disabled. I agree with this preposition. When the total disablement has taken place then according to Sec. 4(b) of the Act, 60 per cent of the monthly wages of the injured workman will have to be considered for being multiplied by the relevant factors. 60 per cent of the wages will be Rs. 600. The age of the appellant held to be 25 years by the Commissioner and the relevant factor will be 216.91. With the multiplication of the factor with the above mentioned income the figure comes to Rs. 1,30,146. The Commissioner awarded Rs. 86,764 and this figure deserves to be enhanced to Rs. 1,30,146.

The next question that comes up for my consideration is regarding interest and penalty. The learned Commissioner has dismissed the contention regarding interest and penalty by stating that :

"The applicant has also prayed for the payment of penalty and interest on the amount of compensation. In the facts and circumstances of this case I am not inclined to grant this relief".

According to learned counsel for the appellant, the learned Commissioner has not discussed as to why he has not awarded the same. No reasons appear to have been given in the award of the learned Commissioner for not awarding the interest and penalty. According to Sec. 4(a) of the Act when there is default in paying the compensation due under this Act within one month from the date it fell due, then the Commissioner has to direct the employer to pay simple interest and if in the opinion of the Commissioner, there is no justification for delay, the Commissioner has to direct the employer to pay, in addition to amount of the arrears, and the interest a further sum as penalty which should not exceed 50 per cent of the award amount.

In this case, the accident has taken place on January 11, 1991. The award is dated January 31, 1994. The learned counsel for the appellant has stated that the amount has been deposited only after the announcement of the award. When the appellant has suffered the Disability of the nature mentioned above, it was the duty of the respondent 1 to have deposited the amount. For better appreciation of the provision of the Act, it will be proper to incorporate Sec. 4(a)(1) and Sec. 4(a)(3) of the Act Sec. 4(a)(1) of the Act is as under :

"4a. Compensation to be paid when due and penalty for default. - (1) Compensation under Sec. 4 shall be paid as soon as it falls due."

Section 4(4)(3) of the Act is as under :

"(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 2 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 50 per cent of such amount by way of penalty.

Provided that an order for the penalty shall not be passed under Clause

(b) without giving, a reasonable opportunity to the employer to show cause why it should not be passed,"

The penalty and interest were also claimed in the petition. No reason has been stated in the written statement by respondent 1 as to why he is not liable to pay the penalty and interest. His contention is that he is not liable to pay the same because the vehicle was insured with respondent 2.

In view of the above facts, I find that the learned Commissioner has erred in not granting interest and penalty. The appellant shall be entitled to interest at the rate of 12 per cent per annum from the date of the accident till the amount is actually deposited by respondent 1.

So far as deposit of penalty is concerned, learned counsel for the appellant states that 35 per cent penalty may be awarded. He is very reasonable in making this statement.

As a result, this appeal is allowed, the principal amount awarded to the appellant is enhanced to Rs. 1,30,146 and the appellant shall also be entitled to interest at the rate of 12 per cent from the date of accident till the amount is actually deposited by respondent 1. He shall also be entitled to penalty to the extent of 35 per cent from respondent 1 only. The appellant shall also be entitled to costs of this appeal from the respondent.