Heard learned Advocate MR. Hiren Modi for appellants original claimants and learned Advocate Mr. Vasant S. Shah for respondent NO.2 Insurance Company. Respondent No.1 has been served but has not appeared before this Court either in person or through an advocate.
By filing this appeal, appellants have challenged judgment and order passed by WC Commissioner, Surat in WC (Fatal) Application No. 20 of 2002 dated 30.5.2006 wherein WC Commissioner has directed insurance company to pay compensation of Rs. 2,25,323.00 to claimants with interest thereon at 7% per annum from date of accident till realization. WC Commissioner has also directed opponent NO.1 Bashirbhai I. Shaikh to pay 10 per cent penalty of Rs.22,532.00 and cost of Rs.2500.00 to claimants within 30 days from date of receiving copy of said order.
Learned Advocate Mr. Modi raised contention before this court that in an application filed by claimants, salary of deceased was mentioned at Rs.4000.00 and no reply thereto was fled by employer before WC Commissioner but objection was raised by insurance company in written arguments submitted at Exh. 39 that as per decision given by this Court, compensation should be calculated while considering salary of driver at Rs.2500.00 and it was submitted on behalf of claimants that it is mandatory for employer to maintain registers and accounts regarding working hours and employer opponent no.1 who is having custody of such record has not remained present and has not given any evidence and inspite of that situation, WC Commissioner has considered that as per provisions of Minimum Wages Act determined by Government of Gujarat , daily wage of driver would come to Rs.66.30 x 30 = 2709.00 and, therefore, WC Commissioner held that monthly salary of deceased was Rs.2709.00. He submitted that in doing so, WC Commissioner has committed gross error. He submitted that accident occurred on 16th June, 2002. On that day, deceased Rangabhai who was serving with opponent no.1 since 25 years as drivier at monthly salary of Rs.4000.00 was performing duties on truck No. GJ.5.V.4420 owned by opponent no.1 and insured with opponent no. 2. At the instructions of opponent no.1, he had gone in said truck as driver for delivering cement and while he was driving said truck, while passing through Ghat of Mahal Chikhli on Jatna Road at 8.00 hours of morning, at that time, deceased had lost control over steering and threfore, truck had turned turtle on side of road because of which reason, deceased Rangabhai had received serious type of injuries on head and died on the spot. In connection with said accident, CR No. 52/2002 was registered at Ahwa Police Station. Therefore, it was case of claimants before WC Commissioner that opponent no.1 is liable to pay compensation. It was also case of claimants that truck involved in accident was insured with opponent no.2, therefore, insurance company is liable to indemnify legal liability arising under WC Act. It was also alleged by claimants before WC Commissioner that there was relationship of employer and workman between opponent no.1 and deceased and no amount of compensation was paid by opponents and, therefore, opponents are jointly and severally liable to pay compensation. It was their case that at the time of accident, age of deceased was 45, therefore, claimants are entitled to claim and receive compensation of Rs.3,38,880.00 plus Rs.2500.00 towards funeral expenses and 18 per cent interest as well as 50 per cent penalty.
Before WC Commissioner, on being served with notice, opponent no.2 filed reply to application of claimants at Exh. 9 contending inter alia that application of claimants is not correct and same is not maintainable. Other contentions of claimants as regards employer-workman relationship, accident, income and age of deceased etc. were denied and it was contended that same should be proved by claimants. No reply was filed by opponent no.1 against application of applicant. Vide list Exh. 5, copy of FIR, panchanama, inquest panchanama, copy of driving licence, copy of RC Book, copy of insurance policy, copy of PM Report and death certificate were produced. Issues were framed at Exh. 12 and vide application Ex. 13, application was given for joining mother father by applicant which was allowed. Vide list Exh. 14, on behalf of claimants, copy of complaint, panchanama, inquest panchanama, copy of PM Report have been produced. Vide Exh. 19, applicant No.1 Vanitaben Rangabhai gave her evidence on affidavit who was cross examined on behalf of opponent no.2 before WC Commissioner. Vide list Exh. 2, on behalf of claimants, Pedhinama, copy of school leaving certificate are produced. Vide Exh. 13, amendment application was filed on behalf of claimants. Vide Exh. 24, affidavit of daughter of deceased namely Ramita alias Ramilaben has been filed and vide Exh. 34, evidence was closed by claimants. On behalf of insurance company, copy of insurance policy is produced at Exh. 35 and vide Exh. 37, opponent no.2 insurance company has closed its evidence. Vide Exh. 38 and 39, written arguments on behalf of claimants have been filed and insurance company respectively and issues were framed by WC Commissioner at Exh. 12. Age of deceased is considered 46 years on basis of birth certificate wherein birth date of deceased is shown as 3.10.1956. WC Commissioner has committed gross error in not accepting wages of deceased at Rs.4000.00 which was deposed by widow in her evidence and cross examined by insurance company's advocate. WC Commissioner oughtt o have appreciated that no evidence was produced by employer opponent no.1 and no written statement was filed by opponent no.1 challenging that part of evidence of widow. WC Commissioner ought to have appreciated that evidence of widow as regards income of deceased was not challenged or disputed by employer and, therefore, that part of evidence of widow cannot be disbelieved. According to my opinion, in such circumstances, WC Commissioner has committed gross error in deciding wages of deceased at Rs.66.30. According to my opinion, WC Commissioner ought to have accepted income of deceased at Rs.4000.00 p.m. as deposed by widow of deceased and not challenged by employer. According to my opinion, WC Commissioner ought to have appreciated that employer who is best person to controvert say of claimant as regards income of deceased has not chosen to challenge that version of claimant and insurance company has not moved any application for calling employer as its witness and, therefore, say of claimant as regards income of deceased cannot be disbelieved. Therefore, according to my opinion, claimants are entitled to have compensation under WC Act on basis of income of deceased at Rs.4000.00. As per amendment made in WC Act on 8th December, 2000, wages have been increased from Rs.2000.00 to Rs.4000.00. Prior to that, wages were of Rs.2000.00 from year 1995 upto 2000 and before that, wages were of Rs.1000.00. So, on date of accident i.e. On 16.6.2002, as per amended provisions of section 4 Explanation-II given, wages of deceased ought to have been determined by WC Commissioner at Rs.4000.00 since amendment came into effect on 8th December, 2000. Explanation II to section 4(1)(b) reads as under:
Explanation II : Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause
(b) shall be deemed to be four thousand rupees only;
Considering amendment which has come into effect on 8.12.2000 and date of accident 16.6.2002 and fact that evidence as regards income of deceased given by widow of deceased has not been challenged by employer before WC Commissioner, WC Commissioner ought to have determined wages of deceased at Rs.4000.00. Looking to age of deceased as determined by WC Commissioner 46 years, relevant factor of 166.29 would come, so, 50% of four thousand rupees is to be considered as per section 4 which would come to Rs.2000.00 being wages which is required to be multiplied by 166.29 = Rs.3,32,580.00.
WC Commissioner has also committed an error in awarding interest at 7% per annum in favour of claimants. Section 4A sub section (3) being relevant for this purpose, same is reproduced as under:
4A.
Compensation to be paid when due and penalty for default. - (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 ther ate of twelve percent per annum or at such higher rate not exceeding maximum of 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 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.
Looking to facts of this case, employer opponent no. 1 was in default in paying the compensation due under this Act within one month from the date it had fallen due. Not only that, employer opponent no.1 had not appeared and filed written statement before WC Commissioner and has also not appeared in this appeal before this court and, therefore, considering conduct of employer before W. Commissioner as per sub section (3)(a) of section 4A of WC Act, WC Commissioner ought to have directed employer to pay simple interest at 12 per cent per annum. Similarly, as opponent no.1 employer has not justified default in making payment of compensation due under this Act, as per section 4A(3)(b) of WC Act, WC Commissioner ought to have directed that opponent no.1 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. In case of higher rate of interest is to be awarded, WC Commissioner is having discretionary power but so far as statutory provision of 12 per cent simple interest is concerned, same must have to be awarded by WC Commissioner. WC Commissioner has not given any reason for not awarding penalty at 50 per cent and further there was no any justification from employer for delay in making payment of compensation due. According to my opinion, WC Commissioner ought to have considered conduct of employer opponent no.1. According to my opinion, for want of such justification from opponent no.1 employer, WC Commissioner has committed gross error in granting interest only at 7 per cent per annum as well as penalty at rate of 10 per cent and, therefore, that part of award is required to be modified by allowing this appeal accordingly. Therefore, according to my opinion, claimants are entitled for simple interest at 12 per cent per annum on amount of compensation within one month from date it had fallen due till realization as well as 50 per cent penalty thereon because accident occurred on 16.2.2002. No amount was deposited by employer immediately thereafter before WC Commissioner and, therefore, this appeal is allowed accordingly. Judgment and order passed by WC Commissioner in WC (Fatal) Case No. 20 of 2002 dated 30.5.2006 is modified to effect that now, claimants appellants are entitled for Rs.3,32,580.00 being amount of compensation with interest thereon at 12 per cent per annum and 50 % penalty thereon instead of Rs.2,25,323.00 with 7 % interest and 10 per cent penalty as has been awarded by WC Commissioner in impugned judgment. Penalty at rate of 50 per cent as per this order comes to Rs.1,66,290.00 instead of Rs.22,532.00 as awarded by WC Commissioner and, therefore, it is directed to respondent no.1 employer to deposit amount of penalty at rate of 50 per cent of Rs.1,66,290.00 within period of six weeks from date of receiving copy of this order. Amount of costs awarded by WC Commissioner remains as it is. Therefore it is directed to respondent no.2 insurance company to deposit remaining amount as directed by this court before WC Commissioner concerned within six weeks from date of receiving copy of this order and also to deposit interest at 12 per cent per annum on amount of compensation of Rs.3,32,580.00 after adjusting amount of interest at 7 per cent per annum on amount of Rs.2,25,323.00 as modified by this court. Impugned Judgment and order of WC Commissioner, Surat dt. 30.5.2006 stands modified accordingly. This appeal stands allowed accordingly with no order as to costs. After amounts as per direction of this court are deposited by respective respondents before WC Commissioner, it is directed to WC Commissioner to pay same to claimants by way of an account payee cheque immediately.
(H.K.
Rathod,J.) Vyas Top