The Civil Miscellaneous Appeal is filed against the order dated 11.01.2013 passed in WC.No.149 of 2009 on the file of the Workmen's Compensation No.2, Deputy Commissioner of Labour No.2, Chennai-6. Aggrieved against the order passed by the Tribunal, the respondents 1 and 2 preferred this appeal.
2. The learned counsel for the appellants/respondents 1 and 2 mainly contended that the trial Court without considering the facts and circumstances of the case dismissed the petition and awarded a sum of Rs.1,72,400/- to the injured claimant/first respondent towards compensation, payable by the third respondent/second respondent herein. The learned counsel submits that the injured was appointed on probation basis for a period of three months from 26.12.2007, before completing the period of three months, the injured left the job on 29.02.2008 without informing the same, during the said period he worked recklessly and he was also warned for the said action by the authority. Subsequently, the claimant rejoined work on 10.05.2008 and left the service on 16.07.2008, during this period also the injured worked recklessly and negligently. On 13.07.2008, the injured carried kadai with hot oil in a callous manner, without obeying the instructions the claimant carried the same in single handed and the kadai slipped from his hand, due to which the hot oil poured in his body. Hence, the appellants are not responsible for the incident and the appellants are not liable to pay any compensation to the injured claimant. In this case, the appellants 1 and 2/respondents 1 and 2 are not chosen to appear before the Tribunal to contest the case, the failure on their part is neither wilful nor wanton. At the time of filing the claim petition the claimant was aged about 60years, but the trial Court fixed the age of the claimant as 51 years while calculating the compensation and the learned counsel prays to allow the appeal.
3. The learned counsel for the first respondent/claimant vehemently contended that his age was 60 years at the time of the accident, but at the time of judgment his age was erroneously calculated as 51years. Further, the learned counsel for the first respondent would contend that the trial Court has not awarded proper rate of interest from the date of the accident, hence, the learned counsel prays to modify the interest amount. Further, in the claim petition it is stated that the income of the injured is Rs.6,000/-p.m., but the trial Court without considering the above aspect wrongly fixed the income as Rs.3,200/-p.m. and calculated the damages. The learned counsel prays for modification of the award of compensation by fixing Rs.6,000/-p.m. as income of the injured and fix the compensation in the manner known to law. It is useful to extract the contents of the judgment of the Tribunal "kDjhuh; jugg; py; jhffy braa g;gl;l kD kw;Wk; k/rh/M.4 y; kDjhuhpd; taJ 60 vdj; bjhptpff gg; l;Lss J ,jwF khwhf Mtz'f s; vjph;kDjhuh;fs; jug;gpy; jhff y; braa gg; lhj fhuzjj pdhy; nkwg; o Mtzjj pd;
mog;gilapy; tpgjj pd; nghJ kDjhuhpd; taJ 60 vdj; jPh;khdpff pnwd;". Hence, the trial Court fixed the age of the claimant as 60years and while calculating the damages the age of the claimant was fixed as 51years.
4. In this case, the learned counsel for the appellant in the appeal grounds it is specifically stated as follows :-
"In any event, assuming the compensation awarded is very high sever and excessive and his salary was Rs.4,000/-p.m. only".
5. The learned counsel for the appellant himself factually admitted that the claimant received a salary of Rs.4,000/-p.m, but the trial Court without considering the admission of the appellant fixed the salary at Rs.3,200/-p.m., and calculated the damages. This Court is of the view that the calculation has to be fixed by calculating the age of the claimant and his salary as 60years and Rs.4,000/-p.m. In this case, it is useful to refer Section 4(A) of the Workmen Compensation Act :-
4(A). Compensation to be paid when due and penalty for default.— (1) Compensation under section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall—
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and
(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty:
Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
6. It is further useful to extract the judgment of Division Bench of this Court reported in N.Ganesan Vs. Tmt. Thilagavathi and another, in C.M.A.Nos.823 of 2001 and etc., batch at paragraph No.27, it is held as follows:-
"27. In the result, the reference is answered as follows:-
i. The word falls due occurring under Section 4-A of the Workmen's Compensation Act, 1923 in the light of the ratio laid down in the Larger Bench decision of the Honble Supreme Court of India reported in 1976(1) SCC 289 in Pratapp Narain Singh Deo v. Srinivas Sabata and another and 2000 ACJ page 5(SC) Kerala State Electricity Board vs. Valsala.K, means that interest for compensation amount would accrue 30 days after the date of the accident and not from the date of quantification/ orders passed by the Commissioner for Workmens Compensation.
ii. The decisions rendered by the Single Bench of this Court in the decisions reported in (2007)5 MLJ 1059 : 2007 (2) TN MAC page 98 Marimuthammal @ Marimuthu and Another v- R.P.P.Construction (P) Ltd., Chennai and others, 2008 (1) TN MAC page 38 - A.Chairmen v- A.Thirumeni & Another, had laid down the correct proposition in consonance with the ratio laid down by the Larger Bench of the Hon'ble Supreme Court of India in the above cited decisions.
iii. The Registry is directed to list these appeals for final disposal before the concerned Portfolio Judge."
7. The judgment referred to above is squarely applicable to the facts of the case in hand. The 3rd respondent/2nd respondent herein is liable to pay the compensation together with interest by adopting the following ratio :
Age of the claimant at the time of accident : 60 Age factor : 117.41 Monthly income : Rs.4,000/- (60/100 x 117.41 x Rs.4,000/- = Rs.2,81,784/-) The 3rd respondent/2nd respondent herein is directed to pay the enhanced compensation amount with interest to the credit of WC.No.149 of 2009.
8. In the result, the civil miscellaneous appeal is partly allowed by directing the 3rd respondent/2nd respondent herein, is directed to pay the enhanced compensation within thirty days from the date of receipt of the order, failing which to pay 12% interest from the date of the accident i.e, 13.07.2008, till the date of payment is made, in other respects the award passed by the Tribunal remains unaltered. No costs.
03.01.2017.
Index : Yes/No Internet : Yes/No tsh To The Workmen's Compensation No.2, Deputy Commissioner of Labour No.2, Chennai-6.
G.CHOCKALINGAM, J.
tsh CMA.No.2457 of 2013 03.01.2017.
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