State of Himachal Pradesh and Another vs Satya Devi and Others

Arun Kumar Goel, J.—This appeal is directed against the judgment/order dated 1.4.2003, passed by Sub Divisional Magistrate, exercising the powers of Commissioner under Workmen''s Compensation Act, 1923, at Baijnath, District Kangra, H.P. By means of impugned judgment in Case No. 7 of 2001, titled Satya Devi v. Secretary, H.P. P.W.D., compensation in the total sum of Rs. 5,14,051 has been awarded in favour of the respondents and against the appellants.

Notice of this appeal was ordered to be issued on 27.10.2004, after the delay in filing the same was condoned in the following terms:

"Substantial question of law at page 5A needs determination in this appeal. Accordingly, notice is ordered to be issued to respondents to show-cause why this appeal be not heard and if possible, disposed of finally at the admission stage. Notice will be collected by the office of the learned Advocate General from the Registry in the week commencing 15.11.2004 for an actual date in the month of December, 2004. For getting respondent Nos. 1 to 4 served through the process serving agency of the court concerned only, steps to be taken during the course of this week.

Record be also sent for."

As per office report, respondent Nos. 1 to 4 were served, but were not present despite service, as such, appeal has been heard finally.

From the material on record, it is clear that Dharam Chand died on 2.7.1999. Death certificate is there on the file of Commissioner at page 13. Legal heir certificate is Exh. PW 1/A. As per last pay certificate, Exh. PW 2/A, salary of deceased was Rs. 4,219 per month. The deceased Dharam Chand was working under the appellants as work charge beldar. During the course of his such employment, his having met with accident resulting in his death, is not in dispute.

It is most unfortunate that when accident is admitted, it is not understood on what ground and for what reason, the appellant State contested and resisted the claim of the respondents from 11.7.2001 till passing of the impugned award.

Suffice it to say in this behalf that so far as calculation of compensation under the Workmen''s Compensation Act is concerned, under law it is precise depending upon age, as well as monthly wage of the deceased on the date of death/injury, as the case may be. This information would always be available with appellants. Reasons being that the service record, particularly the service book of the deceased would be available in their contemporaneous official record. Therefore, if on the basis of material available with the appellants someone had applied his mind to the facts of the case or had sought proper legal advice, the liability at least of interest would have been avoided.

In the instant case, because of lack of accountability appellants and its functionaries merrily went ahead to contest the claim of the respondents during the course of proceedings before the Commissioner below without looking to the interest of the State, that too aimlessly and mindlessly.

(Emphasis supplied)

This observation is being made for the simple reason that this is not the first case where appellants and other functionaries of the State have not properly dealt with such a matter, as was expected of them. This negligence resulted in levying of avoidable interest. Record of the case further shows that no proper steps to defend the case were taken by deputing even a Government Advocate. Some time junior engineer and some time junior assistant had been appearing on behalf of the appellants before the Commissioner. Not being legally trained to conduct the case, they did whatever was expected of them as laymen.

Now coming to the facts of this case. On the date of death deceased is proved to be 42 years of age. His monthly wage was Rs. 4,219 as noted hereinabove in terms of the last pay certificate. As per Section 4(1)(a) Explanation II, his monthly wage is to be taken at Rs. 2,000. Its 50 per cent comes to Rs. 1,000 per month. For the purpose of calculating compensation, relevant factor in Schedule IV of the Workmen''s Compensation Act, 1923, is 178.49. Thus, the compensation comes to Rs. 1,78,490.

Allowing one month''s time to the appellants for payment/deposit of compensation from the date of death, it is felt that for the purpose of allowing interest on this compensation relevant date would be 1.8.1999. Interest at the rate of 12 per cent per annum works out to Rs. 90,381 for the period from 1.8.1999 to the date of its deposit with the Commissioner below, i.e., 20.10.2003. Payment of this amount of interest was avoidable, but for the lack of accountability and properly defending itself, State is being forced to pay this amount.

In view of the aforesaid discussion, the respondents are held entitled to Rs. 2,68,871 (Rs. 1,78,490 compensation + Rs. 90,381 interest from 1.8.1999 to 20.10.2003). This amount is to be equally shared by the respondents being Class I heirs of the deceased.

A submission was made by Mr. Chandel that family of the deceased has been paid death-cum-retirement gratuity, leave encashment ex gratia grant, as well as G.P.F. Thus he prayed for deducting these out of the awarded compensation. Further according to him, family pension is also being received by the respondents in the sum of Rs. 1,310 per month. This plea has been raised simply to be rejected. Pension, etc., is the property of a government servant as per law. This he earns because of his having given best part of his life in the service of his employer, the State Public Works Department in the present case. As such, the amount paid to the legal heirs of deceased on account of DCRG, etc., is not to be deducted out of the compensation as worked out in this judgment.

This matter has been finally heard and is being disposed of looking to the limited controversy involved in it regarding calculation only. In this behalf, it may be appropriate to observe that rights of the parties were fructified on the date of accident. It is the relevant and material for the purpose of fixing the liability for payment of compensation. Amendment to Section 4(1) Explanation II for working out monthly wage was carried out vide Act No. 46 of 2000, when for existing amount ''two thousand rupees'', ''four thousand rupees'' was substituted. This came into force w.e.f. 8.12.2000. This matter is no more res integra in view of the Division Bench judgment of this court in United India Insurance Co. Ltd. Vs. Smt. Nako alias Naiku Devi and Others and Smt. Malti Devi and Others,

No other point is urged.

In view of the aforesaid discussion, this appeal is partly allowed and as a consequence of it, order dated 1.4.2003, of the Sub Divisional Magistrate, exercising the powers of Commissioner under Workmen''s Compensation Act, at Baijnath, District Kangra, in Case No. 7 of 2001, titled Satya Devi v. Secretary, H.P. P.W.D. is modified holding that the respondents are entitled to a compensation of Rs. 2,68,871 in all, inclusive of interest. This amount will be equally shared by all these respondents.

As per receipt attached with this appeal, an amount of Rs. 5,14,051 has been deposited with the Commissioner at Baijnath. It is ordered that after retaining the awarded amount of Rs. 2,68,871, balance shall be released by the Commissioner by remitting the same to the account of concerned appellant with up to date interest. In case amount had been invested, in such a situation, interest accrued on the awarded compensation in favour of the respondents, will also be paid to them proportionately. No order as to costs.

Let a copy of this order be sent to the Chief Secretary, Government of Himachal Pradesh, Shimla, Secretary (Finance), as well as the Secretary (PWD), who will examine the same and then inform the court as to what remedial/corrective steps the State has taken or it intends to take in defending itself before different courts/ forums by proper representation and also to protect its interest keeping in view its financial health. For this limited purpose, case is ordered to be listed in court on 6.5.2005, before which date all three of them, will file their separate affidavits in this behalf.

Registry is directed to send a copy of this order directly to all three of them and urgent copy of this order will also be made available to the learned counsel for the parties, within one week from today.