Rani Devi vs Milkhi Ram

Bilal Nazki, J.—This is an appeal against the award of Commissioner under Workmen's Compensation Act. Briefly stated, the appellant

claimed compensation before the Commissioner for the death of her husband during the course of his employment with the respondents. She stated

that her husband was employed as Conductor/second driver by respondent No. 1, and on September 22, 1989 while he was on his way from

Srinagar to Jammu in vehicle No. JKN/8867, the vehicle met with an accident and the vehicle fell about 200 feet deep into a Nallah, as a result

whereof husband of the appellant suffered multiple injuries and thereafter succumbed to the same on September 27, 1989. She further stated that

her husband was being paid a salary of Rs. 1200/- PM and he was aged 25 years at the time of his death. The vehicle in question stood insured

with respondent No. 2/ Insurance Company.

The Commissioner heard the respondents. It was not disputed before Commissioner that the death of the appellant's husband was caused by an

accident which arose out of and in the course of his employment with respondent No. 1. However, the respondent No. 1 in his statement

contended that the monthly salary of Rs.200/- plus Rs. 15 as diet money per day was being paid to the deceased. The respondent No. 2 accepted

that the vehicle in question was insured with the Insurance Company. The following issues were drawn by the Commissioner :

1) What was the monthly wage of the deceased conductor at the time of accident involving vehicle No. JKN/8867?

2) To what extent the petitioner is entitled to the relief and from whom?

On the basis of evidence, the Commissioner came to the conclusion that the monthly wages of the deceased were Rs.650/-, and on the basis of

this figure, he allowed compensation of Rs. 57,556/- in favour of the appellant. He further directed that the said amount shall be deposited in his

Court within thirty days of the order, failing which, penalty and interest as admissible under law would become chargeable. The appellant has filed

this appeal and seeks two reliefs from this Court as under :

i) That the appellant's case was that her husband was getting Rs. 1200/- PM as wages from his employer and despite that, only Rs. 650/- were

assessed as wages of her husband per month;

ii) That the compensation was due to the appellant from the date her husband died, and the respondents were duty bound to deposit the

compensation amount within one month of the death of her husband. Since they had failed to do so, the interest and the penalty had to be ordered

from the date of death of the appellant's husband.

I have gone through the evidence, and I agree with the Commissioner that the appellant has not proved that the monthly wages of her deceased

husband were Rs. 1200/- and he has rightly assessed on the basis of evidence the income of the deceased as Rs.650/- per month. Therefore, no

interference on this count is needed by this Court.

The counsel for the appellant has drawn my attention to Sections 3 and 4 of the Workmen's Compensation Act, 1923.

Section 3 of the Act is the relevant Section which deals with the liability of the employer for payment of compensation. Sub-section (1) of

Section 3 provides that employer shall be liable to pay compensation if (personal injury is caused to a workman arising out of accident and in the

course of his employment). Various sub-sections of Section 3 provide for certain exemptions and this is not the case of any of the respondents that

the present case falls within any exception. Therefore, it is clear that the employer becomes liable to pay the compensation as soon as injury is

caused to a workman by an accident which arises out of and in the course of his employment. It is not the order of the Commissioner which makes

an employer liable to pay compensation, but the injury itself during the course of employment entitles a workman to compensation from his

employer automatically on the date he suffers the injury. Since it is a social legislation, it gives a right to a workman and creates a liability for the

employer, even if it is not asked for. The Commissioner u/s 19 only comes into picture when the employer refuses to acknowledge and accept the

liability i.e. what has happened in the present case. Once the appellant was not paid within the stipulated period of time, she had no option but to

approach the Commissioner. My attention has been drawn to a judgment of the Supreme Court reported in AIR 1976 222. The Supreme Court

held :

Section 3 of the Act deals with the employer's liability for compensation. Sub-Section (1) of that Section provides that the employer shall be liable

to pay compensation if ""personal injury is caused to a workman by accident arising out of and in the course of his employment."" It was not the case

of the employer that the right of compensation was taken away under Sub-section (5) of Section 3 because of the institution of a suit in a civil

Court for damages, in respect of the injury, against the employer or any other person. The employer, therefore, became liable to pay the

compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course

of the employment. It is therefore, futile to contend that the compensation did not fall due until after the Commissioner's order dated May 6, 1969

u/s 19. What the Section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay

compensation or as to the amount or duration of the compensation it shall, in default of agreement be settled by the Commissioner. There is

therefore nothing to justify the argument that the employer's liability to pay compensation u/s 3, in respect the job injury, was suspended until after

the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused

to the appellant, and there is no justification for the argument to the contrary.

In view of the above mandate of the Apex Court, I have no doubt in my mind that the Commissioner has committed an error by asking

respondents to pay penalty and interest, if the amount awarded by him was not paid within one month of his order, to the appellant to that extent, I

set aside the order. I remand the case back to the Commissioner, who shall after hearing both the parties pass an order in accordance with the

observations made hereinabove, keeping in view the mandate of Section 4(a) of the Act. In addition to the compensation awarded by the

Commissioner, he shall consider awarding of interest and penalty also from the date of accident, in favour of the appellant.