Lachhman vs Asstt. Engineer, Sub-divn.II HP PWD

Arun Kumar Goel, J.—This appeal u/s 30 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as ''the Act'') has been filed by Lachhman (hereinafter referred to as ''the claimant'').

Facts in this case are within narrow compass which need to be noticed in order to properly understand the case as well as for consideration of the submissions made in support of the appeal. Claimant was working as a daily rated stone dresser on Harlog Chati-Trifalghat Road Kms 0/0 to 5/0. Daily wages of the claimants were Rs. 11.80. While working at the site due to rolling down of the stones from hill, he sustained injuries. This accident took place on May 17, 1985 at 11 A.M. Fact of the accident in question is also noticed by S.I./S.H.O. Police Station, Ghumarwin as is evident and a copy of the report finds place at pages 9 to 10 of the trial Court file.

Claimant remained at Ghumarwin hospital for a few days, thereafter he was shifted to District Hospital, Bilaspur and subsequently to Indira Gandhi Medical College and Hospital, Shimla from where he was discharged ultimately. For treatment of injuries sustained by him, he was also taken to P.G.I. Chandigarh and record of the trial Court shows that he was running from pillar to post for payment of compensation.

After the claimant having not been paid anything, his wife addressed a communication for getting justice to the Hon''ble the Chief Justice of this Court which was taken as CWP No. 298/88, titled Vidya Devi v. State of H.P. and Ors.. On August 8, 1988 in the said civil writ petition, a Division Bench of this Court ordered that in order to given expeditious relief to the husband of the claimant, it is necessary that he be medically examined by the medical expert(s) of the I.G.M.C. and Hospital, Shimla and such opinion was further directed to be placed on the record of the case on or before August 16, 1988. Opinion given by the medical expert is there on the file wherein amongst other things one of the members had directed that petitioner need to be got examined as P.G.I. Chandigarh as for the examination that was recommended, there is no arrangement for conducting the same at Shimla. It was also ordered that the concerned respondent in the aforesaid writ petition would get the petitioner examined from the P.G.I. Chandigarh.

Medical Board had opined that the claimant had lost 100% earning capacity in accordance, with the provisions of the Act. As such it was ordered by the High Court in the aforesaid writ petition that the report of the Medical Board would be placed on the record of the case pending before the Commissioner under the Workmen''s Compensation Act, Shimla, Bilas-pur at Shimla within a period of two weeks from today i.e, August 17, 1988. Commissioner was directed to decide the case within a period of four weeks thereafter in accordance with law as well as in the light of the decision in case Ram Dulari Kalia v. H.P. State Electricity Board and Anr. 1987 ACT 258. Compensation determined in the course of such proceedings including the arrears, if any, was ordered to be paid to the person entitled thereto latest within two weeks thereafter and provisional payment of compensation made on the basis of the medical report was also ordered to be made within two weeks.

In the aforesaid backdrop, the impugned order has been passed by the Commissioner under Workmen''s Compensation Act, Shimla, Solan and Bilaspur Districts in case No. W.C.N.F. B-9/85 on September 23, 1988, whereby compensation of Rs. 3472.45 has been ordered to be payable in favour of the claimant. While holding that this is the amount of compensation payable, interest at the rate of 6% per annum w.e.f. June 17, 1985 to August 23, 1988 had been allowed and amount of half monthly wages already paid to the claimant was ordered to be deducted.

In the present appeal the appellant is aggrieved only by non- grant of penalty on the amount of compensation u/s 4-A(3) of the Act and Sh. Sureshwar Thakur, learned counsel appearing for the claimant urged that the award of the Commissioner deserves to be modified thereby allowing penalty at 50% of the compensation which was assessed at Rs. 33552.00. In this behalf, learned counsel appearing for the appellant referred to certain admitted facts, Accident was not in dispute as also daily wage of Rs. 11.80 that was being paid to the claimant on Muster Roll basis by the respondent . Accident having occurred during the course of employment of the claimant with the respondent is also not disputed and this fact is further established from the communications exchanged between the Commissioner and the higher authorities of the respondent from time to time. It is also not in dispute that after the claimant having sustained injuries in the course of his employment with the respondent, he was paid half monthly wages in terms of the order of the Commissioner passed on August 6, 1986 which is at page 41 to 46 of the trial Court file.

State being the employer in this case does not act like an ordinary employer in the market. As a welfare State it was expected that it would take proper care besides providing medical care as weft as assistance to the victims of the accidents like the present one. No steps appear to have been taken by the respondent under whose immediate employment the claimant was to provide him proper medical treatment. Had timely medical care been made available and the respondent acted diligently as well as properly, may be that the eye sight of the respondent may not have been damaged to the extent it was damaged, Beside this had the wife of the claim ant not represented to the Hon''ble the Chief Judge of this Court, possibility of the respondent and other functionaries of the State rising out of slumber was very remote. In fact, despite the filing of the writ petition at every step this Court had to intervene firstly by ordering the medical examination thereafter directing the respondents in the writ i.e. functionaries of the State Government to get claimant examined at Shimla and P.G.I. Chandigarh. In fact all these steps ought to have been taken by the respondent through the functionaries of the State. Re cord of the trial court further shows that the Commissioner was goading the authorities concerned from time to time to look into the matter. So much so the half monthly wages were also paid after an order that was passed in the month of June, 1986 i.e., more than a year after the accident. This clearly indicates the callous and high handed attitude of the authorities concerned responsible for examining the matter from humanitarian point of view in addition to their legal responsibility.

Ms. Shyama Dogra, learned Deputy Advocate General tried to support the judgment of the Commissioner below and urged that discretion exercised in not allowing penalty be not interfered in this appeal as half monthly wages have been promptly paid. This argument has been raised simply to be rejected, in addition to the fact that wages were paid only after the order of the Commissioner, that too after one year of the accident.

In the aforesaid background, it has to be seen whether the penalty claimed by the claimant in the present case deserves to be allowed or not and if so, then what has to be the extent of such penalty.

In order to examine the aforesaid question, reference to Section 4-A of the Act needs to be made which is re-produced herein below:

"4-A Compensation to be paid when due and penalty for default-(1) Compensation u/s 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim.

(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 may direct that in addition to the amount or the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further amount shall be recovered from the employer by way of penalty."

This is not a case where the respondent either does not accept the liability for compensation as claimed by the claimant or a case where the employer accepts his liability and deposits such amount with the Commissioner without prejudice to the rights of the workman to make any further claim. Amount of compensation under the Workmen''s Compensation Act becomes payable within a month after the accident. So far as the matter relating to the issuance of notice of accident to the respondent employer in the present case is concerned, non issuance thereof is not fatal as it is admitted case of the parties that the accident had taken place wherein the claimant had sustained injuries during the course of his employment with the respondent. As already observed non-payment of half monthly wages after accident further shows the attitude of the respondent that it was not interested in either settling or making the payment to the claimant when it fell due as well as in accordance with law. In theses circumstances, there is no ground and/or circumstance for not giving the benefit of Section 4-A(3) of the Act to the claimant. Accordingly it is held that the claimant is entitled to penalty on the amount ordered to be made.

As a consequence of the findings recorded in the preceding para of this judgment, it is now to be seen whether the penalty to the extent of 50% under the aforesaid provision of the Act is to be levied or has to be assessed at a lesser percent age. Again looking to the facts of the case, as have been discussed in this judgment and after giving our best thought to the whole matter, we are of the view that instead of acting as a model employer and ensuring that it enforce the law, attitude and behaviour of the respondent and other functionaries of the State in this case P. W. Department was highly deplorable. In these circumstances, we are further of the view that the claimant is entitled to 50 % penalty on the sum of the Rs. 33552.00 i.e. Rs. 16776/- and in no case the respondent can escape this liability.

As a result of the aforesaid discussion, order passed by the Commissioner, under the Workmen''s Compensation Act, Shimla, Solan and Bilaspur Districts at Shimla dated September 23, 1988 in case No. W.C.N.F. B-9/85 is hereby modified and it is further ordered that in addition to the amount ordered by the Commissioner below, the claimant would be entitled to a further sum of Rs. 16776/- by way of penalty u/s 4-A(3) of the Work-men''s Compensation Act and it is ordered accordingly. Respondent will pay the costs of this appeal quantified at Rs. 1500/-

Record of the case shows that vide order dated October 3, 1988, a sum of Rs. 34000/- was ordered to be deposited in the Registry of this Court and was further ordered to be deposited in the shape of three fixed deposit receipts. It is ordered that if those F. D. Rs. have matured then those shall be renewed by the Bank concerned upto August 31, 1997 and thereafter those would be released to Lachhman claimant as well as his wife Smt. Vidya Devi in whose joint names those were ordered to be invested in terms of order dated October 3, 1988 passed in CWP No. 298/1988. So far the amount of penalty and cost ordered in the present proceedings is concerned, the same would be deposited by the respondent within three months hereof. It is made clear that the direction regarding deposit is peremptory. Registry will send a copy of this judgment to the Engineer-in-Chief to the Government of Himachal Pradesh for necessary compliance.