Sakinabibi and Another vs Gujarat State Road Transport Corporation

J.N. Bhatt, J.—These two appeals are directed against a common judgment and award passed by the Commissioner for Workmen''s Compensation (Commissioner for short, hereinafter), on 23 February 1982, in W.C. Case No. 3 of 1981. The appellants have thus invoked the provisions of Section 30, Workmen Compensation Act, 1923.

In First Appeal No. 1718 of 1982, the appellants have challenged the refusal of the amount of penalty and interest u/s 4A(3) of the Workmen''s Compensation''s Act, 1923 (Act for short, hereinafter). The appellant in First Appeal No, 1721 of 1982, has challenged the entire award. The appellants in First Appeal No. 1718 of 1982 are the original applicants and the appellant in First Appeal No 1721 of 1982 is the original opponent-employer, Gujarat State Road Transport Corporation (Corporation for short, hereinafter). The parties are hereinafter referred to as the original applicants and original opponent-employer-corporation, for the sake of convenience and brevity.

The material facts leading to the rise of the present appeals, may be initially stated, so as to appreciate the merits of the appeals and the challenge against them. Since both these appeals arise out of one and common judgment and award, they are being disposed of by this common judgment.

Original applicant 1 is the widow and original applicant 2 is the minor daughter of deceased workman-Fakir-Mohmed Chan-dubhai Chauhan. The applicants preferred an application for compensation of Rs. 27,000 with interest and cost against the original opponent/ employer corporation, on account or the unfortunate death of their bread-winner, due to personal injuries sustained by the deceased out of and in the course of his employment with the employer. The deceased was working as a driver of opponent-corporation. The accident in question occurred on 2 November 1979. The deceased was in charge of a State Transport Bus No. 8672 on the day of incident. The bus was proceeding from village Gorad to Mehsana. When the said bus reached near Gopi Cinema, in the city of Mehsana, the deceased, all of a sudden, fell down on the steering of the bus and died on the spot. The deceased was earning Rs. 800 per month by way of salary. The deceased was aged about 45 years at the time of incident. The applicants have served the opponent with a notice for compensation. The said notice was neither replied nor complied. Therefore, the applicants filed the W.C. Case No. 8 of 1981 for compensation u/s 3 of the Act before the learned Commissioner, on 3 June 1981.

The opponent/employer-corporation appeared and resisted the application by fifing written statement, at exhibit 11. It was, inter alia, contended that the deceased workman had died a natural death. Thus it was denied that the deceased had died due to injuries arising out of and in the course of his employment with the corporation. Thus it was denied that the applicants were entitled to any amount of compensation, it was also denied that the deceased was earning Rs. 800 per month.

In view of the facts and circumstances of the case and the pleadings of the parties, issues came to be settled, at exhibit 12.

The applicants relied on the evidence of the widow of the deceased, Sakinabibi, at exhibit 28 and the evidence of Dr. M.K. Solanki, at exhibit 40. The applicants also relied on the evidence of the bus conductor, M. G. Dave, at exhibit 42. The opponent/corporation, relied on the evidence of Dr. N.S. Dave, at exhibit 47. The parties also relied on the documentary evidence to which reference will be made as and when required, at the appropriate stage.

On appreciation of the evidence, the learned Commissioner was pleased to award Rs. 23,100 by way of compensation to the applicants from the opponent u/s 3 of the Act, with costs. However, the learned Commissioner did not award interest on the amount of compensation and penalty u/s 4-A(3) of the Act.

Being aggrieved by the judgment and award, the original applicants have filed First Appeal No. 1718 of 1982 challenging the refusal to grant interest and penalty u/s 4-A(3) of the Act and the original opponent/corporation has challenged the award of compensation to the tune of Rs. 23,100 in First Appeal No. 1721 of 1982.

The controversy in these two appeals is circumscribed to a very narrow compass. Two questions are required to be determined as follows;

(i) whether the deceased died a death out of and in the course of his employment or not? And

(ii) whether the applicants are entitled to interest and penalty u/s 4-A(3) of the Act?

In order to appreciate merits of these two points raised before this Court in these two appeals, it would be necessary to set out relevant facts emerging from the facts on the record.

Deceased Fakirmohmed was working as a State transport bus driver, bearing Badge No. 6339. He was incharge of State Transport Bus No. 8672, on 2 November 1979, the day on which the incident occurred. Thus, there is no dispute about the factum of death. The deceased was driving the said State transport bus on the day of incident from village Gorad to Mehsana. When the said bus reached near Gopi Cinema, in the city of Mehsana, the unfortunate incident occurred. It is also an admitted fact that the deceased died in the course of his employment with the opponent employer-corporation The deceased died while he was on his duty and when he was sitting in his cabin, in the State transport bus. When the said bus reached near Gopi Cinema, in the city of Mehsana, at that time, one boy, all of a sudden, emerged on the road, in order to save the boy, the deceased applied brake all of a sudden. Thereafter the driver of the bus, deceased Fakirmohmed, fell down on the steering and died on the spot.

The contention of the opponent/employer-corporation is that the deceased driver died a natural death and the death cannot be said to be out of employment. Therefore, the important question which is required to be examined is as to whether the personal injuries sustained by the deceased could be said to be injuries attributable or referable to employment with opponent/employer-corporation or not. The learned Commissioner was pleased to find that the deceased was a "workman" and he died on account of personal injuries arising out of and in the course of his employment. This finding is seriously challenged on behalf of the opponent/employer corporation.

In order to earn an award for compensation u/s 3 of the Act, it is necessary to prove that the personal injury or the resultant death (as the case may be) is caused to a workman by accident arising out of and in the course of his employment with the employer. The words "out of employment" emphasise a casual connection between the employment and the accidental injury. Though the word "accident" occurred in Section 3 of the Act, is not defined in the Act, the said expression has been subjected to number of judicial decisions, as a result of which, it has come to acquire a settled meaning. It is a well-settled position of law that u/s 3 of the Act, it must be shown that there was a proximate cause and nexus between the personal injury or the accident and the work or employment. Therefore, it is incumbent upon the applicants to prove that there was a causal relationship between the injuries and the work in question. Section 3 of the Act clearly prescribes that the personal injury or the accident must be proved to have arisen out of and in the course of employment. If it is successfully proved or shown that the injury sustained by the workman had arisen out of and in the course of his employment, then the workman or the dependent of the deceased workman would be qualified and eligible for compensation u/s 3 of the Act.

If the workman dies as a natural result of disease from which he was suffering from or while suffering from a particular disease, he dies as a result of natural wear and tear, then in that case, no liability could be fixed upon the employer. But if the employment is contributory cause or has accelerated the death, or if the death was due, not only to the disease but the disease coupled with the employment, then in that case it can be said that the death arose out of employment and the employer would be liable.

u/s 3 of the Act, accident must arise out of and in the course of employment with the employer. The accident, in order to give rise to a claim for compensation must have some causal relation to the workman''s employment and must be due to a risk incidental to that employment.

In the case of death caused by employment injury, the burden of proof rests upon the workman to prove that the accident arose out of employment and in the course of the employment. But this does not mean that the workman who comes to Court for relief must necessarily prove it by direct evidence. It could also be inferred when the facts proved justify the inference. It is, of course, impossible to lay down any strait jacket formula or rule as to the extent and degree of proof in such matter, which is sufficient to justify an inference being drawn. Strict proof as to the cause of death or the result of personal injury in a proceeding under the Act is not as high as in an ordinary civil litigation before the Civil Courts. In fact this Court has held in a decision rendered in the case of Chiman Surakhia Vasava v. Ahmed Muse Ustad 1987 1 C.L.R. 311, that strict principles of Evidence Act and the CPC are not applicable to the proceedings under the Act.

The underlying purpose of the Act is to make some provision for a workman, who is disabled or who has become victim of employment accident. The provisions of the Act are not intended for awarding damages for negligence of the employer. The provisions of the Act are required to be interpreted and construed broadly and liberally in order to effectuate their evident intent and purpose in the application of the provisions which govern the nature and de termination of the injuries for which compensation may be had to the victim. The provisions under the Act are, thus, not governed by the technical rules of Evidence Act and Civil Procedure Code. Unlike the powers and duties of the Civil Judge, the duties and powers of the Commissioner under the Act are quite distinct. In fact, under the Act, the Commissioner is empowered to suo motu initiate an inquiry to ascertain information pertaining to the injuries or fatal accident ana he can call upon the employer to explain as to how and under what circumstances the accident had occurred, and death had taken place. In a very large country like ours, where large labour population suffers from the vices of illiteracy, poverty and incapability to bring their rightful claims for adjudication before the Courts of law and to fight out with powerful and strong employers, the role of the Commissioner assumes different and significant dimensions and the Commissioner is required to remain vigilant and cautious so as to see that the rightful claim of the victim of employment injuries is not affected or defeated.

The learned Commissioner reached to the conclusion that there was causal connection between the death and the employment. This finding of fact is sought to be challenged. It is contended by the learned counsel appearing for the opponent/em-ployer-corporation that there is no evidence to connect the demise with the employment of the corporation, although there is no dispute about the death of the State transport driver/workman-Fakirmohmed, on 2 November 1979, in the cabin of the driver. Thus, admittedly, the deceased driver died while on duty, on his seat in his cabin, in the State transport bus while the vehicle was in motion. However, it is seriously contended that the death was not referable to the expression "out of employment." After having examined and appreciating the evidence on record, the learned Commissioner came to the conclusion that the death was attributable to the employment. This finding of fact has remained unassailable. It is held by the learned Commissioner that, normally, a driver while applying brake would not entertain fear or tension. But when he is suffering from headache and mental stress and strain and in that event if enurism gets burst, the accidental death can be said to have arisen out of his employment.

In this connection, th medical evidence is pertinent to refer. Dr. M.K. Solanki is examined, at exhibit 40. He was working, at the relevant point of time, as medical officer, in the civil hospital, at Mehsana. He had conducted the autopsy of the deceased Fakirmohmed. The post-mortem report is also produced in. the present case, which is, at exhibit 41. According to the evidence of Dr. Solanki and the postmortem report, the cause of death was shock, due to intracranial hemorrhage. It is clearly testified by Dr. Solanki that though there are many reasons for rupture of enurism, one of the reasons could be hypertension. It is also stated by him in his evidence that the systolic blood pressure would be of a higher side on account of all of a sudden applying brake of a running vehicle, which could result into bursting of enurism. There is evidence on record to show that the deceased Fakirmohmed was suffering from headache. The widow of the deceased has also testified that her husband was suffering from headache. Evidence of the bus conductor, Nathalal G. Dave, exhibit 42, clearly goes to show that the deceased State transport driver, Fakirmohmed, was suffering from headache, on the day of the incident. The journey of the bus driven by the deceased Fakirmohmed had commenced on the day of the incident from village Gorad and the bus was proceeding towards Mehsana, it is clear from his evidence that when the bus reached near the clinic of Dr. Lalbhai, in the city of Mehsana, at that time, a child, all of a sudden, emerged on the road, with the result, the deceased had applied brake all of a sudden so as to save the child. In that process, the driver of the bus, deceased Fakirmohmed, underwent serious stress and strain. Immediately thereafter he fell down on the steering of the bus. He was shifted to civil hospital, at Mehsana. in an auto-rickshaw, where he was declared dead. Thus there is evidence to show that deceased workman, while driving his State transport bus was suffering from headache and he had all of a sudden applied brake so as to save a child. Under these circumstances, there is evidence of Dr. Solanki, who has stated in his deposition, at exhibit 40, that such a situation may cause high systolic blood pressure and it may lead to rupture of enurism. There is no reason why the evidence of the bus conductor Sri Dave and the evidence of Dr. Solanki should be discarded.

It is seriously criticised that the evidence of the bus conductor, Sri Dave, is not reliable. In that it is contended that there was some departmental inquiry proceedings against the conductor initiated and, therefore, the conductor would be an interested witness and he would be tempted to support the version of the applicants. This aspect itself would not be sufficient to straightaway discard the testimony of the bus conductor Sri Dave. The learned Commissioner has considered all the relevant facts and circumstances and has rightly believed the version of the applicants. There is also no reason to brush aside the evidence of. the Medical Officer, Dr. Solanki. Of course, there may be variety of reasons for rupture of enurism resulting into death, as stated by Dr. Solanki. But the learned Commissioner has considered the facts and circumstances of the case and came to the definite conclusion that the death could be said to have arisen out of the employment. There is no dispute about the fact that there was rupture of enurism and vein and vessels. There is also no dispute about the fact that rupture can be caused by high systolic blood pressure. The driver who was in charge of the State transport bus was suffering from headache. He was required to, all of a sudden, apply brakes. This might have raised the systolic blood pressure. Ordinarily, a driver, while applying brake would not undergo such stress and tension culminating into rupture of enurism. But a person who is suffering from headache, while driving his vehicle like a bus, has to all of a sudden apply brake would definitely lead to higher degree of tension and stress and if enurism gets burst, causing fatal injury, it could safely be said to have been caused out of employment.

It is not necessary for the dependents of the deceased workman to prove that the deceased was engaged in some exceptional work of a particular kind which had caused excess strain on the deceased so as to result in his death. If the work to which the workman was engaged in was likely to accelerate death, it could be said that there was proximate nexus between the death and the employment. As observed hereinbefore, strict and direct evidence may not be obtainable in such cases. Therefore, what is required to be considered is whether the death could have been a probable reason of an excessive stress or strain. In such a situation, the question whether the evidence in a particular case is sufficient to create liability of the employer for the payment of compensation would, undoubtedly, depend upon the facts whether the evidence was of such probability that it would satisfy a reasonable or a prudent man that the work contributed or accelerated the death of the workman, or that the workman was engaged in such activity that was likely to cause such strain which would accelerate his death. In order to ascertain whether there was proximate cause or causal relation between injury and the work, legitimate inference on proved facts can also be drawn. The learned Commissioner has, therefore, rightly inferred that there was causal connection between the death and the work of the deceased, the serious criticism and contention raised on behalf of the opponent/employer-corporation is, therefore, devoid of any merit.

It is also contended on behalf of the opponent/employer-corporation that the evidence of Dr. N.S. Dave, would go to show that the cause of death would not have been rupture of enurism on account of application of brakes by the driver of the State transport bus. Evidence of Dr. Dave, exhibit 47, is also considered by the learned Commissioner. It appears that he has specialised study in a foreign university in so far as chest and lungs diseases are concerned. Reliance is also placed on his evidence on the observations made in Para. 333 in the Manual of Surgery (Vol. 1) by Rose and Carles. It is contended, relying on these observations, that the steady laborious employment such as is seen amongst artisans and mechanics on regular exercise do not appear to predispose to this condition and that the driver of the bus would not have succumbed to the bursting of enurism on account of driving of such a vehicle. Well, these are two general propositions. The question in the instant case is, when a person who is already undergoing headache, undertakes journey of a State transport bus, as a driver and has to, all of a sudden, apply brakes so as to save a child emerging on the road, could not have undergone such a degree and extent of mental stress and strain resulting into rupture of enurism? Dr. Dave has stated in his evidence that ordinarily there will be no bursting of enurism on account of application of all of a sudden brakes. There is no doubt about this proposition. Ordinarily, there will be no bursting of enurism as and when there is abrupt application of brakes. We may not enter into further details and merits of the testimony of Dr. Dave. But one thing is crystal clear. In the light of the evidence on record, the probability which is required to be considered in the instant case is that whether a person, who is in charge of a vehicle like a bus, suffering from headache had all of a sudden applied brakes so as to save a child, would sustain mental stress and strain resulting into bursting of enurism or not? The answer to this question would not be in negative in the light of the facts of the case. Now, what would be the exact cause of rupture of enurism could not be said by any expert. There are various reasons leading to the bursting of enurism. But one of the most probable cause would be the stress and strain suffered by the deceased, while driving the State transport bus with'' headache, when he all of a sudden applied the brakes. In the opinion of this Court, the appreciation of evidence by the learned Commissioner on this score cannot be said to be erroneous.

According to the evidence on record, the cause of death was shock due to in-tracranial hdemorrhage as there was bursting of enurism. Post-mortem report, produced at exhibit 41, also goes to snow that there was bursting of enurism. According to the medical terminology "enurism" means, localised dilation of blood vessels. The enurism could be because of high systolic blood pressure which may be caused by stress and strain. The evidence on record, while reading as a whole, would go to show that the finding of the learned Commissioner that the death was referable to the work of a State transport driver cannot be said to be erroneous. Therefore, it can safely be concluded that the employment in which the deceased was engaged, undoubtedly, contributed to the untimely demise of the State transport driver, and there was proximate nexus between the death and the work. Therefore, the injuries resulting into death were referable to and attributable to the employment in which the deceased was engaged, at the relevant point of time. There is no any doubt in holding that the injuries resulting into death of deceased, Fakir-mohmed, arose out of and in the course of his employment, therefore, the serious contention that the death had not arisen out of the employment, cannot be sustained.

The learned counsel appearing for the parties have relied on a number of case-laws in support of their rival submissions.

Reliance is placed by the learned counsel for the original applicants on a decision of the Bombay High Court, rendered in the case of Zubeda Bano v. Divisional Controller, Maharashtra State Road Transport Corporation 1990 I C.L.R. 465. In that case the claimants had claimed compensation for the death of the driver of the State Transport Corporation alleging that the death had occurred out of and in the course of his employment. The driver had completed one schedule of his journey and was to begin his next schedule when his body was found lying on the bonnet and steering wheel. The employer/corporation questioned its liability and contended as in the present case that it was a natural death due to heart failure unconnected with his employment. There was no direct evidence about the happening of the incident. The Commissioner found that the claimants failed to discharge the burden of proving the ingredients of Section 3 of the Act and ultimately dismissed the claim for compensation. On appeal, the High Court held that the corporation failed to examine any witness or produce any record to substantiate its plea and, therefore, adverse inference should be drawn against the corporation and held that the death of the deceased arose out of and in the course of employment. The interest was also awarded at the rate of 6 per cent per annum from the date of the accident. The said decision is rendered after considering 9 other relevant decisions. The said decision clearly supports the version of the original applicants.

Reliance is also placed on a decision rendered in the case of Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust, , by the learned counsel for the original opponent/employer-corporation. Decision rendered in this case in any way does not support the version of the employer. In that case, the Commissioner had rejected the claim holding that it was a case of natural death. The High Court, in appeal, set aside the order of the Commissioner and held that the injury in question (heart injury) was contributory on account of the work in which the deceased was engaged. Thus, it was found that the heart was accelerated by the stress and strain of the work. In short, it was found that there was causal connection between the employment and work and, therefore, the employer was held liable for the payment of compensation u/s 3 of the Act. Therefore, the said decision is of no avail to the employer to defeat the claim of the original applicants. Again, this decision is also considered in the decision in the case of Zubeda Bano 1990 I C.L.R. 465 (vide supra).

On behalf of the original applicants, reliance is placed in a decision rendered in the case of Bhagwanji Murubhai Sodha and Others Vs. The Hidustan Tiles and Cement Industries, , It was held in that case that the motor driver, aged 62, driving a car in the course of employment suffering from heart attack could be said to have sustained injuries arising out of and in the course of employment. The deceased was working as a driver, who had suffered pain in chest and died. It was held by this Court that such an injury has a causal connection with the work and, therefore, the employer was liable for the payment of compensation. It was also hem that in such a situation the accident must be held to have arisen out of employment and in the course of employment.

The decision of this Court in the case of Broach Municipality v. Raiben Chimanlal 1986 2 C.L.R. 398, is very important and relevant which is directly applicable to the facts of the present case. In the said case the deceased was a driver who was driving tractor. He was performing his duty as a tractor driver from 7 A.M. He worked upto 2 P.M. It was held that by no stretch of reasoning it can be said that his work does not involve stress and strain. He was required to drive the tractor with trailer and he had to move from place to place in the town for collecting the dirt and refuse. It was found that such type of work would certainly aggravate the disease. In the result, this Court found, relying on the observations of the Division Bench of this Court in the case of Smt. Amubibi v. Nagri Mills Company, Ltd 1977 2 L.L.N. 365, that there was proximate nexus between the death and the work of the driver.

It may also be mentioned that it was seriously contended that ordinarily work of a driver would not entail stress or strain. In view of the aforesaid decisions and the facts of the present case, it is explicitly clear that work of a driver would, undoubtedly, involve stress and strain. In this connection, reliance is placed by the learned counsel for the applicants by a decision rendered in the case of Amri Naran v. Saukem Employees Cooperative Society, Ltd 1987 1 C.L.R. 154. Relying on the said decision, it is contended that even milking buffaloes would also involve stress and strain. In the said case relied on behalf of the original applicants, the injury had been caused to a workman who was engaged in milking buffaloes. From the evidence in that case it was found that the workman had died after he had joined the duty and he had died during the course of employment. Therefore, the question which had arisen before this Court in that case was whether the accident which arose could be said to be an accident out of employment and due to that accident did the workman die? In other words, the question was, was there any proximate relation between the cause of death and the accident? Admittedly, the deceased who was working in a dairy farm while going to milk buffaloes stumbled, fell down and died. The deceased workman was required to look after the buffaloes and milk them. It was held by this Court that this work is surely bound to cause stress and strain on the workman.

In a Division Bench decision of this Court, rendered in the case of Kukubhai v. Mafatlal Spinning Manufacturing Company 1981 (22)G.L.1134, it was held that the provisions of Section 3 of the Act should be broadly and liberally construed. The expression "accident" denotes an unlocked for mishap or an untoward event which is not expected. Accident, therefore, must mean any unintended and unexpected occurrence which produces hurt or loss. Any internal injury would also amount to an injury. Claimant in that case was suffering from chest pain and it was found that he was also suffering from heart trouble. He was advised complete rest. It was observed by the Division Bench of this Court that such heart trouble was accidental and that it was not expected and it was also an internal injury. It was also held that there was causal connection between the injury and the work that the workman was doing. In short, it was found by this Court that there was causal connection between the injury and work that the workman was doing. If the workman while working strenuously receives injury to the heart, all the material ingredients of Section 3 are established.

In the light of the facts and circumstances of the present case, the death of the State transport driver, Fakir-Mohmed, was attributable to the work or employment in which he was engaged at the relevant point of time. It can safely be said from the evidence on record that it was referable to the work that the deceased was doing. The word "employment" again is not statutorily defined. It is not to be defined in a narrow manner. It is to be construed "broadly and liberally". It is not to be considered by reference to the duties of the work alone but the character, conditions, accidents and special risks involved in the employment are to be considered. All these facts and circumstances are required to be taken into consideration in order to ascertain and find out as to whether the accident in question arose out of and in the course of the workman''s employment. There is clear evidence on record to show that the deceased had suffered with headache. He had to undergo mental stress and strain while and in, all of a sudden, applying brake so as to save a child from being run over. The rupture of enurism must have preceded by some sort of ailment arising out of mental stress and strain. Admittedly, the deceased died in the course of his employment. There is sufficient evidence to infer that the deceased died on account of the injuries sustained by him out of and in the course of his employment. Thus it is very clear from the evidence on the record of the present case that there is a proximate nexus between the death and the employment in which the deceased was engaged. Therefore, both the conditions entitling the victim workman to claim compensation u/s 3 of the Act are, fully satisfied.The finding of the learned Commissioner that the death of the deceased workman arose out of and in the course of employment is, fully, justified. It is, therefore, required to be confirmed. The challenge against this part of the award, in First Appeal No. 1721 of 1982, is required to be dismissed with costs.

Next it brings into the sharp focus the question as to whether the penalty u/s 4A(3) of the Act should be awarded or not. The original applicants have challenged the award of the learned Commissioner and contended that the penalty and interest should have been awarded. The learned Com missioner had considered this aspect and came to the conclusion that looking to the facts and circumstances of the instant case, there was justification in delaying the deposit of the amount of compensation. This finding of fact is justified in the special circumstances of the present case. u/s 4-A(3) of the Act, penalty is leviable only in cases of unjustifiable delays. There appears to be no unjustifiable delay in the instant case. 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 arrears, a further sum not exceeding 50 percent of such amount should be paid or recovered from the employer by way of penalty. If the Commissioner finds in the facts of the case that there was justification in depositing the amount of compensation late, then in that case, penalty may not be ordered. The discretion given to the Commissioner is required to be exercised considering the facts of each case. The expression "may direct" would mean, the Commissioner is given discretionary power in awarding penalty in the light of the facts of each case. The learned Commissioner found that the opponent employer/corporation bona fide believed that the death of deceased, State transport driver, had not arisen out of employment and, therefore the amount was not deposited with the Commissioner. It is also held by the learned Commissioner that looking to the facts of the instant case, the question for considering a triable issue and an arguable case was there and, therefore, the employer/corporation was fully justified in not depositing any amount, immediately, after the accident. In short, the learned Commissioner took a view that delay and default on the part of the opponent-employer/corporation was justifiable. This finding of fact is required to be confirmed in the peculiar facts of the present case. There is no reason why the view taken by the learned Commissioner should be interfered with. Therefore, the finding with regard to the penalty arrived at by the learned Commissioner is justified and there is no any other material or reason which would call for interference with this finding. Therefore, it is required to be confirmed.

Lastly, it is seriously contended by the learned counsel Sri Jani for the original applicants that at least interest should have been awarded on the amount of compensation in view of the period consumed in the proceedings u/s 3 of the Act for getting compensation. In order to substantiate his contention, he has also relied on a decision of this Court, rendered in the case of Union of India v. Shantaben 1985 G.L.R. 754. In the said case this Court had found that the employer was liable for the payment of simple interest at the rate of 6 per cent. It was found that there was no justification for not granting simple interest at the rate of 6 per cent per annum. The principle enunciated in the said decision is not in dispute. However, the question requires to be considered as to whether interest should be awarded in the present case or not in the light of the facts of the present case. No doubt, an award of interest unlike penalty would assume different dimensions in the present case in view of the long period consumed in getting compensation. The amount of compensation which the applicants are found to be entitled to, undoubtedly, remained in arrears almost for a period of three years. The incident occurred on 2 November 1979 and the amount, as per the award of the teamed Commissioner came to be deposited in November 1982 and it was withdrawn by the original applicants pursuant to the order of this Court passed, on 4 November 1982, in Civil Application No. 4211 of 1982. Therefore, the due amount of compensation remained with the opponent/employer-corporation which otherwise would nave been utilised by the original applicants. Therefore, considering the fact that the amount which is found payable under the Act to the original applicants remained in arrears and in the enjoyment of the opponent/employer-corporation, it would be reasonable to award interest. The learned Commissioner has failed to consider this aspect. Therefore, the original applicants are entitled to interest at the rate of 6 per cent from the date of accident, i.e., 2 November 1979, till the payment to the original applicants. Therefore, the First Appeal No. 1718 of 1982 filed by the original applicants is required to be partly allowed to that extent with cost.

Since the amount of compensation deposited by the opponent/employer-corporation as per the award of the learned Commissioner and which is withdrawn pursuant to the direction of this Court in the aforesaid civil application, the question of giving further direction with regard to, the deposit of the amount in any security would not arise.

In the result, First Appeal No. 1718 of. 1982 is partly allowed with costs and First Appeal No. 1721 of 1982 stands dismissed with costs.