Shri Jagannath Tukaram Magar vs Executive Engineer, M.I.D.C. And ...
2004 Latest Caselaw 628 Bom

JUDGMENT

Nisshita Mhatre, J.

1. This First Appeal arises from the judgment and order of the Commissioner for Workmen's Compensation dated 16.8.1990. The appellant met with an accident arising out of and in the course of employment on 3.12.1982. He was employed as a labourer by Respondent No. 2, who was the contractor of Respondent No. 1, the principal employer. After meeting with the accident, the appellant was hospitalised and thereafter it was found that he was not able to work at all and he had become physically handicapped as his movements were restricted on account of the accident.

2. An application under workmen's compensation was filed on 25.10.1985 beyond the period of limitation. The Commissioner condoned the delay in filing the application and decided the application on merits. The Commissioner came to the conclusion that the accident arose out of and in the course of employment. It was found that the workman had lost his earning capacity to the extent of 100% since the appellant was totally and permanently disabled. The Commissioner disbelieved the evidence of the workman that his monthly salary was Rs. 900/- and accepted the version of Respondent No. 2 by declaring the salary of the applicant would be between Rs. 200/- to Rs. 300/- per month. On this basis, the Commissioner came to the conclusion that the applicant was entitled to compensation of Rs. 25,200/-. The applicant was refused interest and penalty which the Commissioner could have directed the Respondents to pay.

3. The main grievance of the learned Advocate for the Appellant is that the Commissioner ought to have directed the respondents to pay the interest and penalty payable under Section 4A(3). Admittedly, according to the learned Advocate, there was default in payment of compensation when it fell due and, therefore, this was a sufficient ground for the Commissioner to direct payment of penalty. The learned Advocate also submits that the Respondents ought to have been directed to pay interest @ 6% p.a. as payable under the Act since the payment of compensation was made only after a long period of eight years after the accident and five years of the filing of the application. To deny both interest and penalty altogether is a miscarriage of justice according to the learned Advocate.

4. On the other hand, the learned Advocate for Respondent No. 1, submits that the Commissioner has justified his conclusion for not awarding any penalty against the Respondents. The Commissioner has held that there was no evidence with the respondents to decide what would be the amount of compensation so as to deposit the same immediately before the Court. The Commissioner has come to the conclusion, according to the learned Advocate, that Respondent No. 2 had taken care of the appellant and given him all types of medical assistance and, therefore, no penalty has been imposed. Further, the learned Advocate submits there was delay in filing the application for over three years from the date of the accident. He submits that although the application should have been filed within two years from the date of the accident, the appellant has filed the same only after one year from the expiry of the period of limitation and, therefore, interest could not be granted.

5. Mr. Rajure, learned Advocate for the Appellant, rightly relied on the judgment in the case of Pratap Narain Singh Deo v. Shrinivas Sabata, to submit that the liability to pay compensation accrues as soon as personal injury is caused to the workman. It appears that the employment injury was scheduled injury and, therefore, there was a no reason for the respondents not to make payment of compensation when it fell due. Furthermore, merely because Respondent No. 2 extended medical aid, that would not absolve the respondents from paying penalty for not having deposited the amount when it fell due.

6. In my view, the payment of penalty @25% of the compensation would be just and proper.

7. The reasons given by the Commissioner denying interest for the entire period from 1982 when the accident occurred till the realisation is unsustainable. It is true that there was delay in filing the application. The limitation prescribed for filing the application for compensation is two years from the date of the accident. The application is filed a year late. The delay had been condoned and therefore, the Commissioner ought to have granted interest @6% at least from the date when the application was filed till the realisation. In my view, there is no reason, much less any justifiable reason, given by the Commissioner for denying interest for the entire period.

7. In the result, appeal allowed to the extent aforesaid. Penalty to be paid @25% of the compensation by the respondents. Interest shall be paid @6% per annum from the date of the application till the realisation. These amounts shall be paid to the appellant within 12 weeks from today.

8. Parties to act on an authenticated copy of this order.