IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE N. K. SUDHINDRARAO REVIEW PETITION NO.213 OF 2019 AND REVIEW PETITION NOs.251-252 OF 2019 BETWEEN THE MANAGING DIRECTOR BHARATH GOLD MINES LIMITED SUVARNA BHAVAN OORGAUM POST KGF, KOLAR GOLD FIELDS – 563 120 ... PETITIONER (BY SRI T. RAJARAM, ADV.) AND:
1. MRS. VASANTI W/O. LATE SURESH BABY AGED ABOUT 33 YEARS RESIDING AT NO.54, BOND LINE, OORGAUM, KGF – 563120 2. MRS. SANGEETA D/O. LATE M. SHANKAR AGED ABOUT 23 YEARS 3. MASTER SHARANRAJ S/O. LATE M. SHANKAR AGED ABOUT 16 YEARS RESIDING AT NO.106, E.T.BLOCK, NEW MODEL HOUSE OOARGUM (POT) KGF – 563120 RESPONDENT NO.3 BEING MINOR IS REPRESENTED BY RESPONDENT NO.2 4. SMT. C. MARY VASANTHA @ VASANTHA W/O. LATE MR. SALESTIAN RESIDING AT NO.110 6TH CROSS ROAD, SECOND BLOCK ROBERTSONPET KGF – 560 123 ... RESPONDENTS (BY SRI A.J. SRINIVASAN, ADV.) THESE PETITIONS ARE FILED UNDER ORDER XLVII RULE 1 R/W. SECTION 114 OF CPC, PRAYING THIS HON’BLE COURT TO ALLOW THE PETITIONS, RECALL/REVIEW THE ORDER DATED 11.08.2017 PASSED IN MFA.NO.376/2013, MFA.NO.377/2013 AND MFA.NO.606/2013 IN ACCORDANCE WITH LAW, OR IN THE ALTERNATIVE, PASS SUCH OTHER ORDER/S AS THIS HON’BLE COURT DEEMED FIT TO PASS ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE REVIEW PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER These petitions are filed under Order XLVII Rule 1 read with Section 114 of the Code of Civil Procedure, 1908, wherein, the petitioner seeks review of the order passed by this Court on 11.08.2017 in M.F.A.No.376/2013, M.F.A.No.377/2013 and M.F.A.No.606/2013. The review petitioner is the Managing Director of Bharath Gold Mines Limited (for short ‘BGML’).
2. In order to avoid confusion and overlapping, parties are referred in accordance with their respective ranking before the Commissioner of Workmen’s Compensation (for short ‘the Commissioner’).
3. To begin with, it is necessary in the nature of the case to extract the order that was passed by this Court:
“ORDER The appeals MFA.No.376/2013, MFA.No.377/2013 and MFA.No.606/2013 are devoid of merits. Hence, the appeals are dismissed.
The appellant is hereby directed to deposit the full compensation amount, along with interest at the rate of 10% from 30th day of accident till the date of full settlement. Amount in deposit, if any, to be transmitted to the jurisdictional court.”
4. Sri T. Rajaram, learned counsel for the petitioner – BGML would submit that the appeals preferred by the Managing Director, BGML came to be dismissed and the compensation awarded is as follows:
Name of the Appellant W.C.A. No. Date of Disposal Compensation awarded
Late M.Shankar Smt. Mary Vasantha, w/o Late Salestian 06/2010 26.06.2012 Rs.3,94,120/-
The grievance of the BGML is that the claim petitions before the Commissioner was presented after an extraordinary delay as under:
Name of the Appellant Date Of Accident W.C.A.
No.
M.F.A.
No.
R.P.
No.
Delay Period
Salestian The Commissioner condoned the delay and took up the matters for disposal on merits and passed the orders as aforesaid and awarded compensation.
5. The operative portion of the orders indicate that the respective compensation amount awarded with interest at 7.5% p.a. from the date of petition till the date of order and 12% from the date of order till the date of deposit. Learned counsel for BGML would further submit that in case the interest is calculated for the delayed period also, the very interest amount would be nearly three times the compensation, so also in case of the second petition and it would be more than six times in the third petition.
6. Sri A.J.Srinivasan, learned counsel appearing for claimants would submit that the proceedings have become final and conclusive and there is no apparent error or mistake or a slippery or arithmetical error that calls for modification of the orders. Hence, interference is uncalled for.
7. The scope of review is as under:-
“1. Application for review of judgment:
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
[Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.”
8. The only question of law that needs to be considered is, whether there are formal or arithmetical defects or observation by oversight which is prejudicial to the review petitioner that calls for rectification through addition or deletion or modification.
9. Sri Rajaram, learned counsel for petitioner - BGML would submit that the interest that is added to the claim amount ought to have been the one excluding the amount of interest for the period of delay. The learned Commissioner while adjudicating all the three matters has observed regarding the period of delay in each of the cases and that the applications were filed for condonation of delay, wherein the respective claimants stated that they were kept on hold by the BGML and they were constantly approaching the employer – BGML seeking compensation. Added to that, due to illiteracy they did not make the application in time. It is significant to note that the learned counsel appearing for BGML appears to have objected formally. The applications in each of the cases were allowed and the delay as aforesaid was condoned and that the said order pertaining to condonation has become conclusive and final and the matters have undergone a process of adjudication before the Commissioner and also before this Court.
10. In this connection, learned counsel for BGML stress the need for reduction of the period in granting interest to the claimants in respect of the delayed period and further submits that it may be confined from the date of the application till the disposal.
11. It is necessary to make mention of Section 4A(3) of the Employee’s Compensation Act, 1923, which reads as under:
“4A: Compensation to be paid when due and penalty for default:-
(1) xxxx (2) xxxxx (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.
Explanation:- For the purpose of this sub-section, “scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934.
(3A) The interest and the penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be.”
12. It appears that as the matter is already adjudicated, this Court cannot go into the matters of controversies of substantial nature and further, the done matters cannot be undone or vice versa. However, it is seen that presently the rate of interest is mentioned as 10% in the order which is apparent error.
13. The applicable provision of law enables the interest at 12% p.a.
14. When it comes to the notice of this Court, it is bound to rectify the error and incidentally the percentage of interest deserves to be mentioned at 12% p.a.
15. There is no point in considering the interest to be reckoned from the date of presenting of compensation application.
16. It is mandate as per the aforesaid provision that the percentage of interest shall be calculated for the period commencing after the expiry of thirty days from the date of the accident, that means, it shall be after thirty days, which suggests that the period commencing shall be from 31st day of the incident.
17. With the above observations, the petitions are dismissed.
Sri A.J.Srinivasan, learned counsel for respondents is permitted to file vakalath.
In view of the disposal of the main petitions, I.A.No.2/2019 does not survive for consideration and hence, the same is disposed of.
Sd/- JUDGE nvj