Oriental Insurance Co. Ltd. vs Srimati S. Sawant And Anr.
2001 Latest Caselaw 370 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This appeal is filed under section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as "the said Act"), taking exception to the order passed by the Commissioner, Workmen's Compensation dated 26th June, 2000.

2. This First Appeal has been filed by the Insurance Company. The appellant has assailed the order mainly on the ground that it was not liable to pay compensation under the provisions of the said Act. Whereas, the original complainant, respondent No. 1 in the first appeal has filed the above numbered cross objection praying for awarding interest and penalty under section 4-A of the said Act.

3. The events giving rise to the filing of these proceedings are that :

The respondent No. 1 filed an application dated 26th June, 1987 before the Commissioner of Workmen's Compensation, Government of Goa, claiming compensation from respondent No. 2. M/s. Aquarius Pvt. Ltd., contending that her husband Shripad V. Sawant met with fatal accident in the course of and arising out of employment on the barge of respondent No. 2 on 5-8-1985. According to respondent No. 1, her husband died on the barge on 4-8-1985 and his body was recovered on 5-8-1985, for which she claimed an amount of Rs. 30,000/- as compensation. During the pendency of the said application, sometime on 27-6-1991, respondent No. 1 moved an application praying that the appellant herein be joined as opposite party to the proceedings, as according to the respondent No. 1, the insurance company was also liable to pay compensation. Notice was issued on the said application to the appellant; and pursuant to the notice, the appellant filed written statement before the Commissioner on 24-2-1992. The appellant in its written statement contended that the application filed by respondent No. 1 herein was bad in law and not maintainable and that the Commissioner had no jurisdiction to entertain the same as there was no accident nor the death was caused arising out of employment. In so far as respondent No. 2 is concerned, in its reply, it took a stand that it was not liable to pay compensation as death was not on account of accident. According to the appellant as well as respondent No. 2, the death was caused due to heart attack and was a natural death for which no compensation need be paid under the provisions of the said Act. In other words, both the appellant as well as respondent No. 2 denied their liability to pay the compensation. Respondent No. 2 further contended that in any case the liability to pay compensation would be that of the appellant Insurance Company and that the stand taken by the Insurance Company be, therefore, rejected. Respondent No. 2 also contended that they have paid a sum of Rs. 6,000/- to respondent No. 1 and the said amount be deducted from the sum to be determined by the Court.

4. Respondent No. 1 besides adducing oral evidence, also relied on documentary evidence. Respondent No. 1 examined one Kalidas Naik who was working as Oilman with respondent No. 2 and he knew the deceased. He has stated that he was on duty along with the deceased and one Shri Raju on the barge "Aires" in the first fortnight of August, 1985. Their shift was from 1-8-1985 to 15-8-1985. This witness has deposed that the deceased was quite healthy when he left for duty on the previous day. Respondent No. 2 examined one Shri Savio Mascarenhas, the Chief Executive. He admits that the deceased was on duty from 1-8-1985, however, did not know as to what work was being carried out by the deceased on 4th and 5th August, 1985. He has stated that the deceased died of an heart attack, but admits that he had no knowledge whether the deceased had any previous history of heart ailment. He further states that the employees employed on the barges were insured with the Oriental Insurance Company Ltd., under Group Insurance Scheme. He further admits that they had submitted claim to the appellant Insurance Company claiming the compensation under the Group Insurance Scheme. The appellant Insurance Company examined one Gautam Pathak who admits that they had issued a policy to respondent No. 2 which covered the group of 17 persons against the personal accident and includes the name of the deceased as insured person. However, he has denied the liability of the Insurance Company as, according to him, the death was natural death and not accidental.

5. The Commissioner, on analyzing the evidence has, inter alia, found that there was no direct or positive evidence to discredit the claim of the respondent No. 1. He held that it is evident that the deceased died in the course of and arising out of the employment. The Commissioner found that the employment of the deceased was admittedly from 1-8-1985 till 15-8-1985 and the deceased died on duty on the barge on 4th and 5th August, 1985. The Commissioner further held that even though the respondent No. 2 claimed that it was not an accident, but death due to heart attack, in the present case, is an accidental death. The Commissioner also took into account that the respondent No. 2 had set up a claim for compensation under the Group Insurance Scheme against the appellant, which presupposes that even the respondent No. 2 had viewed the cause of death as an accident. In other words, according to the Commissioner, the respondent No. 2 was taking an inconsistent stand. The Commissioner further observed that although the post mortem report was brought on record which indicated that the death was caused due to heart attack, but the autopsy report of the expert, as mentioned at the end of the certificate-indicated that the statement about the cause of death was pending Chemical Analysis of viscera. The Commissioner observed that the said Chemical Analyser's report of viscera was never brought on record by respondent No. 2; and , therefore, it was unsafe to conclude that the the death was a natural death. The Commissioner further observed that the duty of the barge crew was so onerous that they were continuously required to remain on the board for 14 to 15 days as per the terms and conditions of their employment, which was not denied by the respondent No. 2. The evidence on record, as observed by the Commissioner, indicated that two injuries of the toe and leg of the deceased were noticed. The respondent No. 1 has asserted that the said injuries might have occurred as a result of fall and which might have aggravated his earlier ailment from which he was suffering and which eventually culminated in heart attack due to the nature of strenuous work on the barge. Having considered all the attending circumstances and the evidence on record, the Commissioner, therefore, took a view that the death or injury could be considered as accident even though it was brought about by an heart attack or some other cause to be found as connected to the condition of the deceased himself. The Commissioner, therefore, observed that there was enough scope to say that the work which the deceased was supposed to do on barge might have even led to acceleration of his ailment, if at all he was having, which led to the accident.

6. In the backdrop of the evidence on record, the Commissioner adjudicated the matter and concluded that the death of the deceased was an accident. He concluded that the accident can be said to have occurred not only when the workman was actually in discharge of his duties but also when he was engaged in the act belonging to or arising of such duties. In the circumstances, the Commissioner ordered that the respondent No. 2 and the appellant shall jointly and severally pay a sum of Rs. 59,868/- towards the compensation.

7. The appellant Insurance Company by this appeal has assailed the impugned order of the Commissioner. Shri Bharne, learned Counsel appearing for the appellant, inter alia, submits that there was no liability of the Insurance Company to pay compensation under the provisions of the said Act inasmuch as respondent No. 2 employer had not taken any policy under the said Act, but the policy issued by the appellant was one of Group Insurance Scheme. According to him, the liability to pay compensation under the Act is on the employer and not on the Insurance Company; and, in fact the Insurance Company is not a necessary party in the present proceeding. He submits that dependants of the deceased would be entitled to claim from the appellant/Insurance Company only as per the terms and conditions of the Group Personal Accident Policy and that the appellant is not liable to pay compensation under the provisions of the said Act. In substance, the plea taken is that there is no lis between the appellant/Insurance Company and respondent No. 1 and that the Insurance Company was neither a necessary nor a proper party to the present proceedings under the said Act. He further submits that the appeal should succeed on the above count and the impugned order passed by the Commissioner against the appellant deserves to be set aside. In so far as the findings on merits are concerned, it is submitted that even the same cannot be sustained. He submits that the death in question was caused due to heart attack, was a natural death; and, therefore, the dependants of the deceased were not entitled for any compensation under the provisions of the said Act. Shri Bharne, therefore, submits that the appeal be allowed and the impugned order be set aside against the appellant with further direction that the amount deposited by the appellant during the pendency of the appeal may be returned to the appellants.

8. Mrs. Agni, the learned Advocate appearing for the respondent No. 1, original claimant, on the other hand, contends that although the employer, namely respondent No. 2 is primarily liable to pay the compensation within the purport of section 3, however, that would not absolve the Insurance Company from its liability to pay compensation. According to her, from the plain language of section 19 of the Act, the claimant was entitled to implead any person who, according to the claimant, is liable to pay compensation under the provisions of the said Act; and that the Commissioner is under an obligation to examine the question as to whether such a person is liable to pay the compensation or not? According to her, there is express bar on the Civil Court to have jurisdiction to settle, decide or deal with any question which is by or under the Act of 1923 required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under the said Act. She contends that section 19(1) authorises the Commissioner to decide all questions, including the one of liability of any person other than the employer. She further submits that in any case, the jurisdiction of this Court is very limited as could be seen from the provisions of section 30 of the said Act. According to her, it is not open for this Court to reappreciate the entire evidence on record, as generally available in exercise of jurisdiction of the first Appellate Court. She submits that it is only when substantial question of law arises, that this Court could entertain an appeal and in no other situation. She further submits that in any case, respondent No. 2 has failed to file any first appeal, though the impugned order has been passed against it; and, as such, respondent No. 2 has acquiesced of the said order and waived its right to file any appeal to challenge the correctness of the said decision on any count. She further submits that it is well settled that the death caused due to heart attack, is also an accident and the onus is on the employer to prove that one of the explanations provided for under section 3 of the said Act, was attracted. She contends that in the absence of any evidence by the employer, it can be safely inferred on the basis of the attending circumstances that the death, in question, though caused by heart attack, was an accidental death in the course of and arising out of the employment with respondent No. 2. Besides opposing the appeal filed by the appellant/Insurance Company, the learned Counsel for the respondent No. 1 has strenuously contended that respondent No. 2 cannot be permitted to assail the correctness of the order passed by the Commissioner, particularly when the respondent No. 2 has not filed any appeal nor any cross objection. She further submits that the cross objection filed on behalf of respondent No. 1 praying for further relief against the appellant as well as respondent No. 2 making them jointly and severally liable to pay interest as well as penalty in terms of section 4-A of the said Act, be allowed. She submits that the liability to pay the amount of compensation under the said Act is crystallized as soon as the accident occurred and the interest should, therefore, relate back from the date of the accident and the amount towards penalty should be from the date of order till the appellant and respondent No. 2, as the case may be, deposits the amount.

9. Shri R.G. Ramani, the learned Advocate appearing for respondent No. 2, however contends that although respondent No. 2 has not filed any appeal against the impugned order, nor any formal cross objection, yet the respondent No. 2 is entitled to assail the correctness of the order on all available grounds within the purport of Order 41, Rule 33 of the Code of Civil Procedure. He, therefore, submits that the respondent No. 2 is entitled to assail the correctness of the findings of the Commissioner on merits. He submits that the claim set up by respondent No. 1 by way of the application before the Commissioner was only limited to Rs. 30,000/-; whereas, the Commissioner has proceeded to order compensation much beyond the amount prayed for in the application. He further submits that the Commissioner has also failed to adjudicate the point relating to the amount of compensation. In other words, it is submitted that there is absolutely no discussion in the entire judgment as to on what basis the Commissioner has reached at the conclusion while arriving at the amount ordered to be paid by way of compensation. He further submits that in any case, the Commissioner has failed to examine the contention of respondent No. 2 that: respondent No. 2 was entitled for adjustment of Rs. 6,000/- which was admittedly paid by respondent No. 2 to the dependants of the deceased as ex gratia payment. He submits that the findings on merits arrived at by the Commissioner are based entirely on surmises and conjunctures and not on real evidence. In so far as the claim set up by respondent No. 1 by way of cross objection for the relief of interest and penalty is concerned, the learned Counsel submits that the quantum of interest has undergone amendment. According to him, prior to 1995 the amount of interest was quantified at the rate of 6% per annum; whereas due to amendment, after 1995, the same has been enhanced to 12% per annum. He submits that assuming that respondent No. 1 would be entitled for the interest for the delayed payment, even then, the claim for interest cannot be entertained beyond the rate of 6% per annum. The respondent No. 2 has disputed the liability to pay interest or penalty as prayed for by the respondent No. 1 in the cross objection.

10. In view of the abovesaid arguments, the following points arise for my consideration :

1) What is the scope of appeal under section 30 of the said Act ?

2) In the facts of the present case, was the Insurance Company a necessary or proper party to the proceedings ?

3) Can the respondent No. 2 challenge the correctness of the findings on merits without filing any appeal or cross objections ?

4) Whether the conclusion reached by the Commissioner on merits deserves any interference ?

5) Whether the compensation awarded by the Commissioner is proper?

6) Whether the Commissioner was under an obligation to order payment of interest and penalty in terms of section 4-A of the said Act ?

7) What relief ?

11. Point No. 1 and 3 : After having considered the rival submissions, I would first proceed to examine the scope of appeal under section 30 of the said Act. It would be, therefore, apposite to reproduce section 30 of the said Act, which reads thus :

"Appeals.---(1) An appeal shall lie to the High Court from the following orders of a Commissioner; namely-

(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;

(aa) an order awarding interest or penalty under section 4-A;

(b) an order refusing to allow redemption of a half-monthly payment;

(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;

(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or

(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:

Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees :

Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties;

Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.

(2) The period of limitation for an appeal under this section shall be sixty days.

(3) The provisions of section 5 of 40 the Limitation Act, 1963 (36 of 1963), shall be applicable to appeals under this section."

On plain reading of the said provisions, it is obvious that although the first appeal is available against an order passed by the Commissioner, before the High Court, the scope of jurisdiction of the High Court in such a first appeal is limited. The first appeal can be entertained only when a substantial question of law is involved in the appeal and, in the case of an order other than an order such as is referred to in Clause (b) of section (1), unless the amount in dispute in the appeal is not less than three hundred rupees. In other words, unless the above said twin requirements are fulfilled, no first appeal can be maintained. Further the second proviso to sub-section (1) of section 30, provides that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties. The question is whether this proviso will have any bearing on the situation where the party to the order passed by the Commissioner does not challenge the correctness of the order ? In my view, in such situation the inevitable effect is that the party has agreed to abide by the decision of the Commissioner and, therefore, that party will be precluded from assailing the correctness of the order. This would be relevant in the context of the stand taken by respondent No. 2 that without filing a formal appeal or cross objection, respondent No. 2 would still be entitled to assail the correctness of the order passed by the Commissioner in the appeal filed by the Insurance Company. The said submission cannot be countenanced in view of the mandate contained in the second proviso referred to above. Besides the mandate in the second proviso, the third proviso to sub-section (1) of section 30 provides that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. This proviso, therefore, mandates that if the employer intends to assail the correctness of the order passed by the Commissioner, it is mandatory to deposit the amount payable under the order appealed against. In other words, when the employer intends to assail the correctness of the order passed by the Commissioner, he can do so-provided he deposits the amount payable under the order appealed against. Failure to make such a deposit would disentitle the employer from maintaining an appeal under this provision, a fortiori the employer cannot be permitted to indirectly assail the correctness of the decision in the appeal filed by the Insurance Company. It is well settled that right of appeal does not inhere, but it is the creature of statute. Accordingly, in view of the mandate contained in second and third proviso of sub-section (1) of section 30 of the said Act, it is not possible to accept the plea raised on behalf of respondent No. 2 which is supported by the general provisions of the Civil Procedure Code, particularly relying upon Order 41, Rule 33 that the respondent No. 2 could assail the correctness of the order passed by the Commissioner without filing formal appeal or cross objection, that too at the time of hearing of the appeal across the Bar. If we were to accept the submission advanced on behalf of the respondent No. 2 that, he can be permitted to assail the correctness of the findings of the Commissioner in the appeal filed by the Insurance Company, it would render the mandate of second and third proviso to sub-section (1) of section 30 virtually redundant. Any such approach would result in doing violence to the mandatory provisions as aforesaid. In other words, the scope of appeal under section 30 of the said Act is only when a substantial question of law is involved and the amount in dispute in the appeal is not less than 300 rupees. Besides that, it is only the appellant who could assail the correctness of the order passed by the Commissioner, and respondent No. 2 employer having failed to file a substantive appeal, in view of the scheme of section 30 of the said Act, it is not open for the respondent No. 2 to challenge the correctness of the order passed by the Commissioner.

12. No doubt reliance has been placed on behalf of respondent No. 2 on a decision of the Apex Court in Mahant Dhangir and another v. Shri Madan Mohan and others, to contend that by virtue of the provisions of Order 41, Rule 33, of the C.P.C. the Court was under obligation to determine all questions not only between the appellant and respondent, but also between the respondents and co-respondents. As aforesaid, ordinarily the provisions of C.P.C. would have come to the aid of the respondent No. 2, but for the express provision contained in section 30 of the said Act. Section 30 clearly provides for the manner in which a person aggrieved by an order could challenge the correctness of the order and unless the said requirements are fulfilled, it is not open for that party to challenge the correctness of the order.

13. Point No. 2 : Having considered the scope of the present appeal, I would now proceed to examine the next contention that the appellant was not a necessary party to the proceedings under the provisions of the said Act. On plain language of section 3 of the said Act, it would appear that the compensation that would be payable in case a workman suffers personal injury by accident arising out of and in the course of employment, and in no other situation. Even accepting the case as has been found by the Commissioner, what appears is that the claim of respondent No. 1 was confined to the claim under the provisions of the said Act. If the claim was under the said Act, then unless the appellant/Insurance Company had issued workmen policy under the provisions of the said Act, the question of implicating the appellant for liability of injury suffered by the workman, will not arise. Unquestionably, the proceedings in the present case were initiated specifically under the provisions of the said Act; and, therefore, the same could be adjudicated only in the manner provided for under the said Act. No doubt, section 19 provides that the Commissioner is competent to examine question of liability of any person to pay compensation, however, there is nothing on record to indicate that there was any contract between the appellant/Insurance Company and the respondent No. 1 or her predecessor (deceased husband) to pay compensation in respect of personal injury caused to him by accident arising out of and in the course of his employment by virtue of provisions under the said Act. The Group Insurance Policy issued by the appellant, whereunder the husband of respondent No. 1 Shripad Sawant has been accepted to be the insured person, is an independent contract between the insured persons and the Insurance Company and the said contract cannot be mixed up for the purpose of setting up a claim under the provisions of the said Act, unless the policy can be traced to be one under the provisions of the said Act. In other words, the claim under the Group Insurance Policy would arise on account of an independent contract; and, therefore, independent of the claim available under the provisions of the said Act. Only this approach would further the interest of the workman. Any other view would unquestionably impair the statutory rights and benefits available to the workman under the provisions of the said Act. The claim for compensation under both the situations is mutually exclusive and independent inasmuch as the insured person or his dependents can legitimately claim compensation under the Group Insurance Policy as well as compensation as provided for under the provisions of the said Act. The provisions of the said Act are self contained code and compensation payable under the said Act cannot be whittled down by referring to the claim available under the Insurance Policy. In the present case the claim under the Insurance Policy is to the extent of Rs. 30,000/- provided the terms and condition of the said policy are fully complied with; whereas, compensation payable to the dependants, by virtue of the provisions of the said Act and more particularly as per the schedule provided thereunder; and as determined by the Commissioner in the present case being Rs. 59,868/-. Therefore, both these claims are independent and cannot be allowed to be entangled, for it will have the inevitable effect of whittling down the mandate of the provisions of the said Act which provides for quantum of compensation. The appellant is right in contending that there is no lis between the appellant and respondent No. 1 or the deceased regarding payment of compensation under the provisions of the said Act and it is only the employer/respondent No. 2 would be liable to pay the compensation determined under the said Act. Understood thus, the appellant, would, therefore, neither be a necessary nor proper party to the proceedings under the said Act. Inasmuch as a claim for recovery of compensation under the Group Insurance Scheme, which admittedly cannot be said to have been issued in fulfillment of the provisions of the said Act, be set up in the proceedings under the said Act and the Commissioner adjudicating the proceedings cannot elongate his authority over such transaction.

14. Now relating to the decision of this Court in Iqbal Shamsuddin Ansaeri v. Gazi Salauddin Ansari and another, reported in 1980 Lab.L.C. 125, relied upon by the Counsel for the respondent No. 1, no doubt this Court has observed that the expression "any person" occurring in section 19(1) of the said Act would authorise the Commissioner to decide all questions including the liability of any person other than the employer. However, what is overlooked by the Counsel for the respondent No. 1 is that in the said case the claim was pressed against the Insurance Company not only by virtue of the provisions of the said Act, but also on account of the provisions of the Motor Vehicles Act, 1939, under which the owner of the vehicle was under an obligation to insure the vehicle and in the event of accident, the Insurance Company was liable to pay compensation. It is in this context that the impleadment of the Insurance Company for compensation under the provisions of the said Act was found to be appropriate. However, in the present case, the claim against the appellant is simpliciter by virtue of the Group Insurance Policy and not traceable to any provision of the said Act. There is nothing on record to indicate that the employer had obtained Workman Policy under the provisions of the said Act. In the circumstances, in a claim which is simpliciter under the said Act; and specially when no workman policy under the said Act has been obtained by the employer, in such a situation, the Insurance Company cannot be impleaded as a party, for the Insurance Company would neither be a necessary party nor a proper party and the Commissioner can have no jurisdiction to direct the Insurance Company to pay compensation which had become due and payable under the said Act. The remedy of the workman or the dependants of the workman to claim compensation under the Group Personal Accident Policy would arise out of an independent contract and cannot be mingled with the claim under the provisions of the said Act. If the two claims are associated together, it would result in a situation where the claim under the provisions of the said Act is marginalized, e.g. if the workman or his dependants are entitled for a sum of Rs. 50,000/- by way of compensation under the provisions of the said Act, the same would in fact get reduced to Rs. 20,000/- if the Insurance Company is made liable to pay Rs. 30,000/- payable under the policy not related with the workman's Insurance Policy. On the other hand, the interpretation as given by me would further the interest of the workman or his dependants inasmuch as they would not only be entitled to get compensation under the said Act, but in addition they would also claim compensation under the Group Personal Accident Policy. In the circumstances, the decision relied upon by the learned Counsel for the respondent No. 1 can be distinguished for the above reasons.

15. The learned Counsel for the appellant has also placed reliance on a decision of the Karnataka High Court in New India Insurance Co. Ltd. v. R. Shridhara and another, reported in 1991 A.C.J. 204. On perusal of para 8 of the said decision, it would be seen that the Counsel therein had conceded that the manufacturer had taken out a group insurance covering his 4 employees in the establishment and liability if arose only in favour of the assured manufacturer. It is in this context that the Court observed that then the liability of the Insurance Company to pay under that policy cannot be disputed. The Court further observed that the Insurance Company has different types of policies, including the one under the provisions of the said Act, is not a defence to absolve itself from paying under the miscellaneous group insurance that will be helping technical defence which the Court would not countenance. The Court also observed that in any event, as long as it is clarified that there is no dual liability of the Insurance Company to the insured as well as the workman, the Insurance Company cannot make a grievance of making payment to the workman. This authority does not specifically deal with the proposition that arises for consideration in the present case. On the other hand, I have already analysed in the foregoing paragraphs of this judgment that the only interpretation that can be sustained is that the liability under the said Act cannot be mixed up with the liability of the Insurance Company under the accident policy not related to the provisions of the said Act. If the policy is not traceable to the provisions of the said Act the Insurance Company cannot be said to be "any person" against whom adjudication can be done by the Commissioner with regard to the policy which has no connection whatsoever with the provisions of the said Act. The jurisdiction of the Commissioner is limited to the matters arising out of and between the employer and the employee with regard to the compensation under the provisions of the said Act and no other issue can be dealt with by the Commissioner by invoking this limited power.

16. The appeal filed by the appellant would, therefore, succeed on this limited count that the appellant was neither necessary nor a proper party to the proceeding initiated by respondent No. 1 which was exclusively for the claim under the provisions of the said Act. Therefore, it would be unnecessary to deal with any other contentions raised in the present appeal by the appellant. This is more so, when the respondent No. 2 the employer has not chosen to assail the correctness of the order passed by the Commissioner.

17. Point No. 4 : Even assuming that this Court was called upon to examine the correctness of the findings recorded by the Commissioner on merits, I have no hesitation in concluding that there is no infirmity in the findings. At the outset it needs to be mentioned that it is not open for this Court to reappreciate the evidence, though this is a first appeal. The scope of the first appeal has been limited by virtue of section 30 of the said Act which stipulates that a first appeal can be maintained when there is a substantial question of law. In the circumstances, it is not open for this Court to reappreciate the evidence. In any case, I find no infirmity in the approach adopted by the Commissioner to arrive at the finding that the death was caused due to accident in the course of and arising out of the employment. Although respondent No. 2 took up a plea that it was not an accident but a natural death, but what is seen from the record is that respondent No. 2 had submitted claim with the appellant Insurance Company under the Group Insurance Scheme, with presupposes that respondent No. 2 asserted that the death was caused on account of injury and was an accidental one. Besides the said circumstance, the other clinching circumstance taken into consideration by the Commissioner is failure of respondent No. 2 to bring the report of Chemical Analysis of viscera on record to successfully demonstrated that the death was a natural death. On the other hand, the evidence which has come on record was that two injuries of the toe and leg were caused to the workman and the claimant had asserted that it is quite possible that on account of the said injuries which were suffered by the deceased as a result of fall on the barge that might have aggravated the ailment which he was suffering in the past and because of strenuous work the deceased was supposed to do on the barge, might have even led to acceleration of the disease of his ailment, if at all he was having, which led to accident. The Commissioner has, therefore, rightly observed that there is no direct evidence to the contrary, but all the circumstances would surely permit any prudent person to infer that the death, though caused by heart attack, was an accident, which was in the course of and arising out of the employment. Understood thus, there is no reason to take a different view of the matter.

18. It is well settled that the onus is on the employer to prove that one of the explanations specified in section 3 of the Act were attracted. Reference can be made to the decision in Mines Manager v. Waheedul Haque Abbasi, reported in 1994 A.C.J. 334, wherein the Madhya Pradesh High Court while considering the purport of expression "arising out of and in the course of employment" observed that even when the workman died on duty and cause of death was shock due to rupture of heart occurred as a result of employment or otherwise, then surely it can be inferred that the death occurred arising out of and in the course of employment and his dependants would be, therefore, entitled for a claim of compensation. In the said decision, the Court observed that the death of the workman due to heart attack is an accident; certain manifestations of heart conditions from the effect of strain or overexertion of work constituted an accidental injury within the meaning of the Act. It would be useful to refer to another decision in the case of General Superintendent Talcher Thermal Station v. Smt. Bijuli Naik, reported in 1994 Lab.I.C. 1379. In this case, G.B. Patnaik, J., (as he then was) after examining all the leading decisions lucidly explained the principle which reads, thus :

"But the general principles are that (i) there must be a causal connection between the injury and the accident and the work done in the course of employment; (ii) the onus is upon the applicant to show that it was the work and the resulting strain which contributed to, or aggravated, the injury (iii) it is not necessary that the workman must be actually working at the time of his death or that death must occur while he was working or had just censed to work; and (iv) where the greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed. But where the accident involved a risk common to all humanity and did not involve any peculiar or exceptional danger resulting from the nature of the employment; or where the accident was the result of an added peril to which the workman, by his own conduct, exposed himself, which peril was not involved in the normal performance of the duties of his employment, then the employer will not be liable under section 3 of the Act."

After referring to the decisions of this Court, in Laxmibai Atmaram v. Chairman and Trustee, Bombay Port Trust, , it is further observed thus :

"In that case, the learned Chief Justice has observed that if the workman died as a natural result of the disease from which he was suffering, then it cannot be said that the death was caused out of his employment and if a workman was suffering from a particular disease and as a result of wear and tear of his employment, he died of that disease, no liability can be fastened upon the employer. But it is equally established that if the employment is a contributory cause of the employment has accelerated death or it can be said that the death was due not only to the disease but the disease coupled with employment, then the employer would be liable and it can be said that death arose out of employment of the deceased."

It would be useful to refer to the principle enunciated by Madras High Court in the decision of Madras Metropolitan Water Supply and Sewerage Board v. Karmal, reported in 1995 A.C.J. 1207. In the said case, the driver of a pumping station was found dead underneath a tree nearby the office room within an hour of his report for duty. In that case, the Commissioner had held that the employer failed to discharge his onus of proving that the deceased would come under any of the exceptions provided to section 3; and held that the death had occurred during the course of employment due to accident which is purely within the knowledge and ambit of the employer. The High Court approved the said view of the Commissioner. The observations made by the Madras High Court in the said decision, read thus :

"In annovating the above meaning ascribed to the word 'accident' if the scope of the Industrial Law, namely, the scope inherent in section 3 of Workmen's Compensation Act is imported, then I may hold without any hesitation, as decided by the various High Court and Their Lordships of the Supreme Court in very many number of cases that the industrial jurisprudence clearly overrides and has an ovderriding effect upon the common law doctrine of 'torts'. In short to say, the meaning for the word 'accident' spelt out in section 3 of the Act has to be given a very wide meaning and not certainly in a narrower sense. As accident by itself implies that it may happen at any point of time with or without knowledge of the person who suffers by it and, therefore, it cannot be proved always by direct evidence. The Apex Court has clearly laid down the ratio on this score as was contended by the learned Counsel for the respondent. But on the other hand, it has to be implied, presumed for the simple reason that the principles of the Indian Evidence Act cannot be expected to have a direct and overall clothing for the proof of this concept of 'accident'. If this is the legal ratio and synthesis made established, then I find no difficulty at all to decide this case only in favour of the respondent herein, supporting all of my endorsements to the conclusion arrived at by the learned Deputy Commissioner in favour of the claimant."

19. Reference can be made to another decision in the case of Deviben Dudabhai v. Manager, Liberty Talkies, Porbandar and another, reported in 1994 Lab.I.C. 2570 of the Gujarat High Court. The Court observed that the workman was doing work of two persons. In the circumstances, the High Court held that the injury sustained by the deceased had arisen out of and in the course of his employment and it was compensable in accordance with the provisions of section 3. The principle that has been consistently followed is that there should be causal connection between employment and the accident and the employment was not a contributory cause for death. Reliance was placed by the learned Counsel for the appellant on the decision, Mrs. Kamlabai v. Divisional Supdt., Central Railway, and 1998 Lab.I.C. 3354, Smt. Ananthamma v. M.D., Co-op. Spinning Mills Ltd., wherein it has been held that the death caused by heart attack cannot be generally stated to be the accident. In the present case as observed by the Commissioner, there was more than one circumstance which persuaded the Commissioner to take a view that, the death, though caused due to heart attack, was an accident in the course of and arising out of the employment. I have no hesitation in affirming the findings recorded by the Commissioner in this behalf; and more so having regard to the limited scope of jurisdiction while entertaining this appeal, I find no reason to take a different view than the one taken by the Commissioner.

20. Point No. 5 : Although the respondent No. 2 has raised several contentions to assail the correctness of the decision of the Commissioner, however, as observed earlier, it will not be open for the respondent No. 2 to assail the correctness of the decision in the absence of having not filed any appeal or cross objection. In any case, one of the contention raised on behalf of the said respondent is that there is absolutely no adjudication with regard to the quantum of compensation decided by the Commissioner. Moreover, the Commissioner has granted relief beyond the relief prayed for in the application and that no adjustment of Rs. 6,000/- which was already paid to the dependants of the deceased has been considered.

21. In this behalf it would be appropriate to advert to the decision of the Madras High Court in Century Chemicals & Oil Pvt. Ltd. v. Esther Maragatham and others, reported in 1999 A.C.J. 1991 which has taken a view that even if a mistake has been committed by the claimant while setting up the claim for compensation under the provisions of the Act, however, it is the duty of the Commissioner to award compensation in terms of the provisions of the Act and not with reference to such a faulty claim. In my view, although the respondent No. 1 claimant had filed application praying for compensation of Rs. 30,000/-; however, the Commissioner was well justified in awarding higher compensation that what was prayed for by the applicants/respondent No. 1, so long as the said compensation was in accordance with the provisions of the Act. In the circumstances, the grievance made on behalf of the respondent No. 2 that the amount awarded travelled beyond the relief prayed for is wholly misplaced and untenable. In my view, the Commissioner was justified in awarding higher compensation than the one actually prayed for in the application, for it is the duty of the Commissioner to pass such order so as to meet the ends of justice in accordance with law. On plain language of section 4 of the said Act, it is seen that it is mandatory that, irrespective of the relief, it is the duty of the Commissioner to award amount of compensation as provided in the said Act.

22. In so far as the grievance made by the respondent No. 2 that there is absolutely no adjudication done by the Commissioner regarding the quantum of compensation is also wholly misplaced. The Commissioner, no doubt has not elaborated the reasons in his order on this point, however, has clearly indicated the reasons on the basis of which the amount is determined. The Commissioner has taken monthly wages of Rs. 1,000/- and having regard to the age of the deceased being 51 at the time of the accident, the compensation amount came to be determined at Rs. 59,868/-. It is, therefore, not possible to accept the plea on behalf of the respondent No. 2 that there is no adjudication as regard the quantum of compensation. The Commissioner has already indicated the basis on which the said amount has been arrived at.

23. In so far as the grievance of the respondent No. 2 that the amount of Rs. 6,000/- which was admittedly paid to the dependants of the deceased ought to have been adjusted. In response to this contention, the learned Counsel for the respondent No. 1 has submitted that no doubt the amount of Rs. 6,000/- was paid to the dependants of the deceased, but the said amount was paid as an ex gratia amount and not as compensation under this Act. In this connection, learned Counsel for the respondent No. 1 places reliance on the definition of "compensation" as provided for in section 2(1)(c) which means compensation as provided for by this Act. Learned Counsel further relied on section 8 of the said Act to contend that such amount of compensation is to be distributed in the manner provided by the said provision and in no other manner. Learned Counsel, therefore, submits that any payment made in any other manner cannot be taken note of while passing the order on the application because it is not distribution of amount towards compensation as such. The obvious purpose for which section 8 has been enacted is that the workman or the dependants of the workman are not exploited. Therefore, section 8 of the said Act mandates that the distribution of the compensation shall be made only by deposit with the Commissioner and in no other manner. Section further postulates that payment made in any other manner than the one provided in section 8 or directly by the employer shall not be deemed to be payment of compensation. In other words, it would be presumed that, any amount, even if paid directly by the employer, cannot be considered as compensation, unless proved to the contrary. Having regard to the legislative intent, it would be unsafe to conclude that the amount of Rs. 6,000/- was paid by way of compensation under this Act. No doubt that the Commissioner has not examined the efficacy of the payment of Rs. 6,000/- made by the employer to the dependants of the workman, however, having regard to rigours of section 8 of the said Act, it is not possible to hold that the said amount was paid by way of compensation. Moreover, the witness examined on behalf of the respondent No. 2 clearly admits that the sum of Rs. 6,000/- was given on compassionate ground; and, therefore, it is not open for the respondent No. 2 to now contend that the said amount was paid towards compensation under the said Act. Naturally therefore, the argument advanced on behalf of the respondent No. 2 that the said amount of Rs. 6,000/- ought to be adjusted should fail and is hereby rejected.

24. Point No. 6 : The next submission advanced on behalf of the respondent No. 1 in support of the cross objection is that the appellant as well as the respondent No. 2 were jointly and severally responsible to pay interest and penalty in terms of section 4-A of the said Act. It is contended that since the liability had arisen for paying the compensation under this Act; and as the liability relates back to the date on which the deceased met with an accident; and in view of the fact that the compensation has not been paid within one month from the said date, the claimant was entitled to claim interest as well as penalty along with the amount due and payable towards the compensation under the said Act.

25. The learned Counsel for the appellant however submits that since the appellant is not liable to pay any compensation, the payment of interest or penalty would not arise at all. He further submits that in any case the amount towards the interest or penalty can be directed to be recovered only from the employer and not from any other person including the Insurance Company. On the other hand, the learned Counsel for the respondent No. 2 disputes the liability of respondent No. 2 to pay any interest or penalty. He further submits that in any case it is relevant to notice that the provisions contained in section 4-A of the said Act have undergone amendment. According to him, section 4-A of the said Act was inserted for the first time by Act No. 8 of 1959. He points out that the original provisions provided for interest at the rate of 6% per annum on the amount due and the amount towards penalty only when the Commissioner is satisfied that there is no justification for the delay. He further points out that section 4-A was amendment by Act No. 30 of 1995 and sub-section (3) thereof was substituted with effect from 15th September, 1995, which enhanced the interest rate to 12% per annum or at such higher rate not exceeding the maximum of the lending rates of any schedule bank as may be specified by the Central Government. It is also brought to the notice of this Court that section 4-A has undergone further amended by Act No. 46 of 2000, whereby sub-section (3-A) came to be inserted by the same Amendment which postulates that the interest payable under sub-section (3) could be paid to the workman or his dependant as the case may be and the penalty to be credited to the State Government.

26. The learned Counsel for the respondent No. 1 has placed on record sub-section (3-A) as inserted by Act No. 30 of 1995 which has been substituted by Act No. 46 of 2000, according to which the interest and the penalty payable under sub-section (3) is to be paid to the workman or his dependant as the case may be. These legislative changes have been placed on record to contend that the accident in the present case was caused on 4/5th August, 1985, whereas the claimant's application was filed on 26th June, 1987 and the same decided by the impugned order on 26th June, 2000.

27. On careful consideration of the rival submissions, there is no doubt that the Commissioner was under an obligation to award interest and/or penalty specially when the Commissioner has held that the liability to pay compensation under this Act had accured in favour of the respondent No. 1/claimant; and since, admittedly, the liability was not discharged within one month as required under section 4-A, the Commissioner had no option but to award interest as provided in law. Insofar as awarding penalty is concerned, depending on the nature of evidence and the explanation which has come on record, the Commissioner could have proceeded to impose penalty on the employer. However, in the present case the Commissioner has not adverted to this aspect of the matter though he was under an obligation to do so in view of the mandate contained in section 4-A of the said Act.

28. In my view, instead of examining the rival contentions for the first time before this Court with regard to the question of interest and penalty, it would be appropriate that the said question is left open and instead the Commissioner is directed to adjudicate the same and record a clear finding before passing appropriate order in this behalf.

29. The learned Counsel for the respondent No. 1 has heavily relied on the decision of the Apex Court in , Pratap Narain Singh Deo v. Shrinivas Sabata and another, to contend that the liability of employer to pay compensation under this Act arises as soon as personal injury is caused and failure to pay compensation as prescribed by law would give an indefeasible right to the claimant, workman or to his dependant to get interest and penalty. According to the respondent No. 1 the interest will have to be computed from the date of accident which is 4/5th August, 1985. Reliance has also been placed on the decision of the Division Bench of this Court reported in 1980 Lab.I.C. 125, Iqbal Shamsuddin Ansari v. Gazi Salauddin Ansari and another to contend that if the compensation which is payable under this Act is not paid within the specified time, the employer is liable to pay interest for wrongful withholding of the amount. On the other hand, reliance is placed by the opposite party on the decision of the Kerala High Court, reported in 1998 A.C.J. 1048 in United Indian Insurance Co. Ltd. v. Alavi, to contend that only the, unamended provisions relating to interest shall apply in the present case as the accident had occurred on 4/5th August, 1985.

30. On close scrutiny of the said decisions and the plain language of section 4-A of the said Act, I find force in the submission on behalf of the respondent No. 1 that the respondent No. 1 besides the compensation amount, was also entitled for interest and penalty. However, instead of examining the rival stand with regard to liability to pay interest and penalty for the first time in this Court, I would think it appropriate to leave the question open and direct the Commissioner to examine all the contentions and to pass appropriate order in terms of section 4-A of the said Act. This course would be preferred for more than one reason. In the first place, the principle on which computation of interest and penalty is to be done will have to be adjudicated upon in terms of the provisions of law; and more than that, this Court will have the advantage of a reasoned order of the Commissioner, besides the parties will get an opportunity to take all pleas available in law before the first forum so that right of appeal on the said question is also not prejudiced.

31. Point No. 7 : In the circumstances, I have no hesitation in holding that the appellant/Insurance Company would succeed, but nonetheless the liability to pay compensation under the said Act, as determined by the Commissioner, is affirmed as against the respondent No. 2 herein (employer). It is however made clear that the right of respondent No. 1 to claim compensation from the appellant under the Group Insurance Scheme, if any, is kept open. In so far as the cross objection filed by the respondent No. 1/original claimant is concerned, the same succeeds to the extent that the issue of payment of interest and penalty is remitted to the Commissioner for adjudication in accordance with law.

32. Therefore, the following order is passed :

(a) First Appeal No. 182/2000 is allowed and the order passed by the Commissioner dated 26th June, 2000 as against the appellant herein is set aside, but is maintained as against the respondent No. 2 herein (employer);

(b) Consequently the amount towards compensation deposited by the appellant in this Court pursuant to the order dated 8th September, 2000 be returned to the appellant (Insurance Company);

(c) The respondent No. 2/employer is directed to pay the compensation determined by the Commissioner under the impugned order, being sum of Rs. 59,868/- to the respondent No. 1 forthwith;

(d) Cross Objection No. 9/2000 is allowed and the issue of interest and penalty is remanded to the Commissioner for adjudication in accordance with law. The Commissioner shall decide the said proceedings expeditiously, preferably within three months from the date of receipt of this order ; and

(e) No order as to costs.