Setulbai Bhil and others vs Santosh Dubey and another

A.M. Sapre, J.

This is an appeal filed by the claimants u/s 30 of the Workmen''s Compensation Act against an award dated 7-6-2003 passed by Commissioner, Workmen''s Compensation in Case No. 5 of 1999 (W.C.F.).

This appeal is for enhancement of the compensation awarded by the Commissioner, Workmen''s Compensation, Indore for the death of one Roop Singh Bhil and also for granting interest on the awarded sum.

It is not in dispute that Commissioner while allowing the application in part awarded the total sum of Rs. 78,824/- to claimants for the death of Roop Singh Bhil but declined to award the interest on the awarded sum of Rs. 78,824/- saying that due to delay in filing the claim application by the claimants, they are not entitled to claim any interest on the awarded sum under the Act.

So the question that arises for consideration is, whether any case for enhancement in compensation awarded by the Commissioner, Workmen''s Compensation, Indore on facts/evidence is made out in the compensation awarded and if so, to what extent?

As observed supra, it is a death case. On 27-5-1990, Roop Singh, aged around 35 years, an employee of respondent No. 1 working as Driver met with a Motor Accident and died, giving rise to filing of claim petition out of which this appeal arises seeking compensation for his death. The case was contested by the respondent No. 2 - Insurance Company. Parties adduced evidence. The Tribunal by impugned award partly allowed the claim petition. It was held that claimants are entitled to claim a total sum of Rs. 78,824/- . It was held that deceased''s monthly income was (Rs. 1500 + Rs. 25/- special allowance) Rs. 1525/- . It is this determination which is impugned in this appeal by the claimants contending inter alia that it is on lower side and hence, need to be enhanced.

I have gone through the evidence adduced by the claimants.

In my opinion, compensation awarded to the claimants is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases.

Learned Counsel for the appellants cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can rely upon the cases for awarding compensation.

So far as non-awarding of interest by the Commissioner, Workmen''s Compensation on the decretal amount is concerned, in my opinion and as rightly brought to my notice by Learned Counsel for the parties, the issue relating to payment of interest and its rate and date payable under sections 4 and 4-A of the Act no longer remains res integra. It is now decided by the Supreme Court in two decisions reported in National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, and Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and Another, .

This is what their Lordships held in Mohammad Nasir''s case (supra) in para 50 while upholding their view taken in Mubasir Ahmad''s case and then also clarifying the law laid down therein while awarding interest from the date of application till award and then thereafter in following words :-

Reliance has been placed on Mubasir Ahmed wherein it was held:

(SCCpp.354-55, para 9)

Interest is payable u/s 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability u/s 4-A was dealt with by this Court in Maghar Singh vs. Jashwant Singh. By Amending Act 30 of 1995, section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because section 4-A(1) prescribes that compensation u/s 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication u/s 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is falls due''. Significantly, legislature has not used the expression from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise.

As there in this aspect of the matter has not been considered, we are of the opinion that interest will also be payable at the rate of V/2% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner.

Keeping in view the law laid down by their Lordships, the impugned award deserves to be modified to the extent in conformity with the law laid down by the Supreme Court in aforementioned two decisions so far as award of interest on the awarded sum is concerned. I am, therefore, inclined to award interest to the claimants, disagreeing with the view taken by Commissioner for non award of interest. In my view, in the first place, there was no inordinate delay in filing and prosecuting the application and secondly, looking to death case the claimants are entitled on the ground of equity to claim.

Accordingly and in view of the aforesaid discussion, the appeal succeeds and is hereby allowed in part. Impugned award is modified to the extent that appellants are held entitled to claim interest at the rate of 6 per cent on the awarded sum from the date of application till the date of award and then 12 per cent on the awarded sum payable after 30 days from the date of award. All other findings of Commissioner are upheld. No costs.