Taj Khan and Others vs Patel Prevbha and Another

R.D. Vyas, J.—This appeal is directed against the judgment and award in Claim Case No. 1/WC/92 (fatal) dated August 16, 1996, thereby the learned Commissioner, Workmen''s Compensation and Labour Court, Mandsaur granted an amount of Rs. 20,000 as compensation, Rs. 10,000 as penalty to the appellants with penal interest u/s 4A of the Workmen''s Compensation Act.

The short facts giving rise to this appeal are that the deceased workman-Firoj Khan was working as a driver on truck No. CIF-5922 belonging to respondent No. 1. It was stated that the deceased was aged 19 years and was earning Rs. 600 per month. The appellants are the parents and brethren of the deceased. On April 23, 1991, he was lying on the said truck, at about 12 mid night serpent bit him and he died, therefore, a claim was made under Workmen''s Compensation Act.

The Tribunal had a wrong assumption that it cannot decide the age of the deceased is not a proper approach upon evidence or inference. The Court ought to have come to a conclusion. The mother of the deceased, Baby in her evidence (PW/ 1) very clearly has stated that his age was 19 years at the time of death. The Tribunal passed the aforesaid Award on appreciating the evidence and the relevant law.

Shri Pankaj Bagadia, learned counsel appearing for the appellant argued that the Workmen''s Compensation Commissioner and the Labour Court did not appreciate the provisions of Section 4 of the Workmen''s Compensation Act. Clause (a) of Sub-section (1) of Section 4 reads thus:-

"4. Amount of compensation - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

(a) Where death results from the injury

an amount equal to forty percent of the monthly wages of the deceased workman multiplied by the relevant factor;

or

an amount of twenty thousand Rupees whichever is more;

Shri Bagadia argued that there are two optional provisions, an amount equal to 40 percent of the monthly wages multiplied by the relevant factor or an amount of Rs. 20,000 whichever is more. He argued that the lower Court was not justified in saying that the minimum is required to be paid of the two options, clearly the Commissioner was in error. The 40 percent of the amount multiplied by the relevant factor would be applicable in this case as the said amount is higher than Rs. 20,000 as per Section 4. The lower Court has not ascertained the age and the factor and straightaway granted minimum of Rs. 20,000 which cannot be done. He argued that it was the duty of the Court to come to a conclusion about the age and find out a factor. He argued that the provisions of Workmen''s Compensation Act is a beneficial piece of legislation and ought to have been considered in favour of the workman rather than in favour of the employer. His assertion is ought to be accepted.

Looking to the evidence of Baby, the mother of the deceased, who said the age of the deceased was 19 years, which was not challenged very seriously in any case, it may be a year here or there and, therefore, it should have been held that the deceased was aged 20 years. In any case that has to be so bearing in mind the age of the mother of the deceased who was said to be 40 years at the time of death of the deceased. In that view of the matter, the factor which would be applicable would be 224 to be multiplied by 40 percent of the amount of Rs. 600, the salary of the deceased which brings the total compensation to Rs. 53,560. The award deserves to be granted accordingly.

Next comes the question of penalty and interest u/s 4A of the Act. Section 4A is very clear. The Workmen''s Compensation Commissioner held that the employer has without any justification withheld the amount. It is therefore, the amount of interest must be on the whole of the amount. It is well settled that the amount falls due on the occurrence of the death, therefore, the amount bears the interest from that date. Next comes the question of penal interest, the same has to be awarded strictly according to Section 4A of the Act. Therefore, it cannot be said that, so far as the rate of interest is concerned the Workmen''s Compensation Commissioner is in any way wrong. I come to the conclusion, therefore, that the appellants are entitled to an amount of Rs. 53,560 plus interest at six percent per annum and 50 percent of the amount of compensation i.e. Rs. 26,780 as penalty (sic).

The learned counsel Shri Dhuper for the Insurance Company argued that the Insurance Company is not liable for the payment as the Insurance Company would not know on what date the accident occurred and whether or not the payment or deposit was made by the employer. His argument is, therefore, that no interest on the penalty could be payable by the Insurance Company. He relied on the Supreme Court Judgment in the case of Vedprakash Garg v. Premidevi and Ors. (1998 I LLJ 363) (SC).

Shri Bagadia argued that the facts are different in this case, the Insurance Company atleast knew from the date of service of notice for the claim of the appellants, therefore, it ought to have deposited the amount payable to the appellants. It has not deposited as held by the Workmen''s Compensation Commissioner, therefore, the appellant is entitled to both interest as also the penalty from the Insurance Company and in any case from the date of service on the Insurance Company since on that date and thereafter the Insurance Company could have deposited the amount, which is not done. In such a circumstance, since I have already held the appellants are entitled to the aforesaid amount and interest jointly and severally from the respondents the question of the arguments of the learned counsel Shri Dhuper whether or not the Insurance Company is liable to pay interest and penalty is left open. The respondents can get decided that dispute before the appropriate forum. The respondents are free to approach the Commissioner by way of an application to get this decided.

The appeal is, therefore, allowed with appropriate cost. Fees of the advocate as per the schedule.