Subhash and Others vs Jawaharlal and Others

A.S. Chandurkar, J.

Considering the limited issue arising ADMIT. Heard finally with consent of the learned counsel appearing for both the parties.

The present appellants are the parents of one Ramprasad S/o Subhash Ingale who was in employment with respondent No. 1 as a driver. During the course of employment, when said Ramprasad was driving a truck from Pune to Raipur, the same met with an accident on 4.6.2012 resulting in death of said Ramprasad. The parents, therefore, filed proceedings under Section 22 of the Workmen''s Compensation Act, 1923 (for short, "the said Act"). The said proceedings were contested by respondent No. 2 Insurance Company with whom the said truck was insured. The learned Commissioner for Workmen''s Compensation after considering on record, held that deceased Ramprasad was in employment of respondent No. 1 and that he had died during the course of employment. It further recorded a finding that said Ramprasad was getting salary of Rs. 12,000/-per month and Bhatta of Rs. 100/- per day. However, the learned Commissioner found that there was some variance about the age of deceased as regards the age mentioned in the driving licence and the age as mentioned in the postmortem report. The learned Commissioner, therefore, proceeded to deny claim for compensation on the ground that the specific age of the deceased was not available and hence, compensation could not be determined. Hence, by judgment dated 10.9.2013, the learned Commissioner for Workmen''s Compensation rejected the said application.

Shri S.P. Pawar, learned counsel appearing for the appellants, submitted that the learned Commissioner having found that the deceased was in employment with respondent No. 1 and that the accident had occurred during the course of the employment was not justified in denying the claim for compensation. He submitted that the driving licence, which was filed on record, indicated date of birth of the deceased as 11.5.1988. As the accident occurred on 4.6.2012, it was submitted that the deceased was aged twenty-four-years at that point of time. It was further submitted that the age, as mentioned in the postmortem report being on a lower side, ought to have been ignored. He, therefore, submitted that the learned Commissioner erred in not granting any compensation whatsoever on aforesaid ground. He further submitted that the appellants were entitled for receipt of interest and penalty in terms of the provisions of Section 4A(3) of the said Act.

Shri D.V. Chauhan, learned counsel appearing for respondent No. 1 employer, supported the impugned judgment. It was submitted that in absence of age of the deceased, the learned Commissioner was justified in refusing to grant compensation.

Shri M.B. Joshi, learned counsel appearing for respondent No. 2 Insurance Company, also supported the impugned award. He, however, submitted that the finding recorded by the learned Commissioner, regarding salary of the deceased, could not be taken into account while determining the amount of compensation. He submitted that the Central Government had issued Notification dated 31.5.2010 in which amount of Rs. 8,000/-had been specified as monthly wages for the purposes of calculating the amount of compensation. As per the provisions of Section 4(1)(a), an amount equal to 50% of the monthly wages multiplied by relevant factor would be the amount of compensation payable. He further submitted that the interest at a lower rate than the rate specified by Section 4A(3)(a) of the said Act, deserves to be granted.

The substantial question of law that arises for consideration in this appeal is whether the learned Commissioner for Workmen''s Compensation was legally justified in refusing to grant compensation on the ground that there was no evidence regarding age of the deceased?

I have carefully considered the respective submissions and have gone through the evidence of the parties. It is to be noted that the finding recorded by the learned Commissioner, regarding employment of the deceased with respondent No. 1, and the further finding that the death occurred during the course of employment, have not been challenged by the respondents in this appeal. Hence, the said findings recorded by the learned Commissioner would be binding on the parties.

The only ground on which the claim for compensation came to be rejected was that there was no evidence regarding age of the deceased. Appellant No. 1 examined himself vide Exh.U-12. In his deposition he mentioned that the age of his son was twenty-three years. The driving licence of the deceased was placed on record vide Exh.U-19. In his cross examination appellant No. 1 stated that the exact date of birth of his son was 11.5.1988. He, however, stated that the school leaving certificate had not been filed on record. Perusal of driving licence, which is at Exh.U-19, indicates that the date of birth mentioned is 11.5.1988. The said entry, in the driving licence, corroborates the statement made by appellant No. 1 in his cross examination. Though the aforesaid material was available on record, the learned Commissioner unnecessarily gave importance to the age as mentioned in the postmortem report. When the age of the deceased as shown in the driving licence was available, the same should have been accepted while determining claim for compensation. In any event, the postmortem report showed the age as twenty-years while the driving licence indicated the age was about twenty-four years. The age shown on higher side could always have have been taken into consideration by ignoring the postmortem report. The finding, therefore, as recorded by the learned Commissioner regarding lack of evidence of the age of the deceased, cannot be sustained and the said finding is, therefore, set side. It is held that the age of the deceased, as shown in the driving licence at Exh.U-19, was 11.5.1988 and the same is required to be taken into consideration. Accordingly, substantial question as framed is answered by holding that the learned Commissioner erred in dismissing the claim for compensation by ignoring relevant evidence on record.

The next issue to be considered, is the quantum of compensation. In terms of the provisions of Section 4(1)(a) of the said Act and Notification dated 31.5.2010, the monthly wages of the deceased would have to be taken of Rs. 8,000/-. 50% of the monthly wages being Rs. 4,000/-would have to be multiplied by the relevant factor. As the age of the deceased was twenty-four years, the relevant factor, as prescribed in Schedule-IV to the said Act would be 218.47. The amount of compensation would, therefore, come to Rs. 8,73,880/-. This amount of compensation would be payable with simple interest at the rate of 12% per annum in terms of the provisions of Section 4A(3)(a) of the said Act. Though it is urged by the learned counsel for respondent No. 2 that the said amount be directed to be paid at a lower rate of interest, considering the aforesaid statutory provisions, said request cannot be accepted. Similarly, respondent No. 1 -employer did not pay any compensation that was due under the said Act within a period of one month from the date it fell due. As the amount of compensation was never paid, the question of justification for delay in terms of the provisions of Section 4A(3)(b) of the said Act does not arise. In terms of the aforesaid provisions, respondent No. 1 -employer would, therefore, have to pay 50% of the amount of compensation by way of penalty.

In view of aforesaid, the following order is passed :

ORDER

Judgment dated 10.9.2013, passed by the learned Commissioner for Workmen''s Compensation, is set aside.

The appellants are entitled for the amount of compensation and penalty as mentioned in the foregoing paragraph No. 8.

The said amount be duly paid to the appellants by.....9/- 9 respective parties within a period ten weeks from today.

Respondent No. 2 shall pay aforesaid amount of interest from the date of filing of the proceedings before the learned Commissioner for Workmen''s Compensation which is 27.12.2012 till realization.

The first appeal is allowed in aforesaid terms.