Smt. Laikan vs M/s. Garrison Engineer

Arvind Kumar Tripathi, J.—Heard learned Counsel for the petitioner, learned A.G.A. and perused the record. By means of the present writ petition the petitioner has challenged the impugned order dated 16.9.2005 passed by respondent No. 2 Workmen Compensation, Commissioner, Bareilly Region, Bareilly (Annexure-9 to the writ petition) by which the prayer for payment of the interest and penalty was refused.

Learned Counsel for the petitioner submitted that the petitioner was lineman in the Electricity Department of respondent No. 1. While on duty some repair work was being done in the electric line on 1100 bolt on 19.11.2001. He fell down from the ladder and died. In view of the provision of Workmen Compensation Act, 1923, wife of the petitioner late Bhure, the deceased-employee, was entitled for compensation and if there was delay in payment of the compensation, the department was liable to pay 12% interest and also 50% penalty of the amount of compensation. Officer concerned were approached with the request for compensation and an application was also moved by son of the petitioner for compassionate appointment. However, prayer for compassionate appointment was rejected. When there was no payment of compensation and even provisional payment of compensation, then an application was moved with an application to condone the delay, if any, in filing the petition before the respondent No. 2 Workmen Compensation, Commissioner, Bareilly. The application was filed on 11.2.2005, against that objection was filed. However, the petition of the petitioner was entertained by the respondent No. 2. By letter dated 12.8.2005 the respondent No. 2 directed that the respondent No. 1 is liable to pay the compensation and the office of the respondent No. 1 agree for payment of the compensation calculated and decided by the respondent No. 2, Commissioner, Workmen Compensation. According to direction and decision of the Workmen Compensation Commissioner for payment of compensation on 12.9.2005 was Rs. 2,71,120 and that amount was deposited by respondent No. 1 with the office of the Labour Commissioner, Workmen Compensation, Bareilly. Thereafter an application was moved on behalf of the petitioner to the effect that the respondent No. 1, in view of sections 3 and 4-A of the Workmen Compensation Act 1923 was required to make payment of compensation within a month from the incident that in the present case even provisional compensation was not paid and as such the petitioner was entitled for payment of interest as well as 50% penalty of the compensation amount. However, that application was rejected by impugned order dated 16.9.2005 on the ground that there was no direction for payment of the interest and amount of the compensation had already been deposited and regarding payment 24.9.2005 was the date fixed, hence the impugned order by which the prayer for payment of interest and penalty was refused, is liable to be set aside and direction be issued for payment of interest and penalty in view of the provision. Learned Counsel for the respondent No. 1 opposed the aforesaid prayer and submitted that the prayer for compassionate appointment of son of the deceased in Para 7 of the judgment was considered. However, the same was rejected with the observation that the family of the deceased employee was entitled for all retiral benefits and compensation. The petition before the Commissioner was to be filed for claiming of the compensation within two years. However, after two years an application was filed, hence the petition itself was not maintainable being barred by time. However, taking lenient view whatever direction was issued for payment of compensation after calculating the same by the Workmen Compensation Commissioner, respondent No. 2, the same was paid by the department of respondent No. 1. Hence the petitioner is not entitled either for interest or any penalty because after direction the respondent No. 2 there was no delay in payment of the compensation and as such the present petition is liable to be dismissed.

Considering the submissions of Counsel for the parties. Admittedly the petitioner is wife of the deceased-employee who was working as lineman on the date of the incident i.e., 19.11.20201. While he was working for repair of the fault in the line of 1100 bolt he fell down and succumbed to injuries. In view of the provision u/s 3 of Workmen Compensation Act he was entitled for compensation even liability of the compensation has not been denied which was considered. The employer-respondent No. 1, as per direction of the respondent No. 1 whatever compensation was calculated that was a sum of Rs. 271,120/- and the same was deposited by the respondent No. 1 on 12.9.2005 through a cheque issued on State Bank of India, Main Branch, Bareilly and by impugned order dated itself 24.9.2005 was the date fixed for payment of compensation to the petitioner and same was paid. Now the dispute is regarding payment of interest and penalty.

Section 3 of the Workmen'' Compensation Act deals with the employer''s liability for compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment.

Section 4-A provides even if the employee do not accept the liability of the compensation to the extent which was claimed by the deceased-employee he was required to make provisional payment passed on the explanation of the liability which was accepted but admittedly in the present case even single penny was not paid towards compensation till direction was issued by Workmen Compensation Commissioner, Bareilly, respondent No. 2. The direction was issued for payment of compensation for a sum of Rs. 2,71,120/- on 12.8.2005 which was deposited on 12.9.2005 that was within a month. However, the compensation should have been paid within a month from the date of claim due for payment and i.e., within a one month from the date of accident Paragraphs 7 & 8 of the Apex Court judgment passed in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, are quoted herein below:

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 to 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 an 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 of the injury, was suspended until after the settlement contemplated as 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.

It was the duty of the appellant, u/s 4-A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false please that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent''s personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum on agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was full justified in making an order for the payment of interest and the penalty.

In view of the judgment of the Apex Court the provision of Workmen''s Compensation Act the compensation was required to be paid within a month when it fell due i.e. from the date of the accident and in the present case even the provisional compensation was not paid.

So for as the delay in reference before the Commissioner is concerned is concerned, u/s 10 of the Act the claim was to be preferred before Commissioner within two years of the occurrence of the incident and in the case of death from the two years of death. In the present the employee expired on the same day i.e. on the date of incident i.e. 19.11.2001. When claim was preferred before the respondent No. 2, an application was moved for condonation of delay and claim petition was entertained after hearing the parties, hence the delay stands condoned and its objection cannot be considered at this stage. Now only the question which has to be considered whether the petitioner is entitled for interest and penalty or not. In view of section 4-A of the said Act, if there was no payment of compensation within time then the petitioner was entitled for 12% interest or any higher interest if applicable on the relevant date plus 50% penalty of the compensation amount but the respondent No. 2 failed to consider this aspect with regard to the interest and penalty. In the present case even the compassionate appointment was not given to any family member of the deceased employee. In view of aforestated discussion the impugned order 16.9.2005 quashed.

The respondent No. 2 is directed to consider the claim of the appointment with regard to the payment of interest and penalty in accordance with law expeditiously without unreasonable delay preferably within a period of three months from the date of furnishing a certified copy of this order. With the above observation this petition is allowed. No order as to costs.