Namdeo S/O Ukhardu Patil vs Bharat S/O Janardhan Patil And ...
2006 Latest Caselaw 35 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This appeal is directed against the judgment and order passed by the Commissioner for Workmen's Compensation, Labour Court, Jalgaon in Application (WCA) No. 13 of 1995 dated 6th April, 1999. The present appellant was opponent No. 1 in the said application and respondent No. 1 in this appeal was the original applicant. The respondent No. 2 Bhaskar Patil was Opponent No. 2 in Application (WCA) No. 13 of 1995. The parties hereinafter shall be referred to their original status in the application.

2. Background facts, necessary for consideration of this appeal, are as follows:

(a) The applicant in Application (WCA) No. 13 of 1995 alleged that prior to 20th February, 1992 he was employed as agricultural labour with Opponent No. 1. The Opponent No. 1, at the relevant time, was owner of tractor bearing registration No. MHW-4216 and Trolley Registration No. MHS 7558. The Opponent No. 2 was, at the relevant time, employed as driver of the said tractor and trolley by the Opponent No. 1.

(b) On 20th February, 1992, the applicant directed the Opponent No. 2 for transportation of manure from village Dohari to village Paldhi by said tractor and trolley. At that time, applicant, along with co-labourers viz. Shankar Mali and Sopan Pundalik Lohar, was engaged for loading and unloading of said manure by the tractor and trolley, as labourer.

(c) On 22nd February, 1992 at about 09.00 a.m., after loading the trolley with manure at village Dohari, the applicant, along with co-labourers left said village Dohari. While coming to village Paldhi, and near village Takali (BK), the Opponent No. 2 perceived that one of the tyre of the tractor-trolley had punctured. The tractor and trolley was taken to the left side of the road by Opponent No. 2 driver. The trolley, which was being used for transportation with the said tractor was not having an iron jack, for resting the said trolley on the ground. The Opponent No. 2, after stopping the tractor-trolley, took out the jack for removal of the punctured tyre. After applying the jack, since there was no other jack available, the wheel, which was lifted from the ground, was supported by stones. These stones were placed below the axles of the said trolley. The Opponent No. 2, thereafter, removed the jack and placed the said jack near the hook of trolley. The trolley, which was attached with the tractor, with the help of hook, was pinned with lynch pin. The Opponent No. 2 asked the applicant to remove the said lynch pin for facilitating the detachment of trolley from the tractor. The lynch pin could not be removed by the applicant. The Opponent No. 2 and co-labourer Shankar Kishan Mali, also took part in this mission and, therefore, the trolley got pushed and fell from the stones on which it was rested earlier. The trolley, in fact, fell on the left foot of the applicant. The applicant, therefore, sustained severe injury to his left toe. The ankle of the left foot of the applicant, sustained fracture due to this accident.

(d) The accident in question took place on 20th February, 1992 during the employment of the applicant and out of the employment. The applicant had sustained fracture injury to his left foot and, in fact, it has sustained permanent disability. Due to this incident, the left foot of the applicant is totally disfigured. After the accident, the applicant could not carry on or perform any work. The applicant even feels it difficult to walk properly due to the injury sustained by the applicant on account of the accident. The applicant No. 2 could not do the work as the agricultural labourer.

(e) The applicant was in-patient of Civil Hospital, Jalgaon since 7th February, 1992 till 7th April, 1992. The left foot of the applicant was operated. Thereafter, the applicant was discharged from the hospital and was required to take bed rest at his residence. The applicant again was required to visit the hospital for removal of the iron pins inserted at the time of operation. The applicant was again required to rush to the hospital for performing second operation. After second operation, the applicant was discharged and was required to take bed rest for the period of two years, at his residence. During this period, the applicant was required to incur an expense of Rs. 15,000/- for medication, special diet, travelling expenses etc.

(f) The applicant claims loss in income since 20th February, 1992 for the period of two years at the rate of Rs. 750/- to Rs. 900/- totalling to Rs. 18,000/- to 20,000/-. The applicant also seeks loss in income at the rate of Rs. 6,000/- per annum. The applicant could have worked as agricultural labourer up to the age of 60 years and could have earned at-least Rs. 2 Lakhs. Due to physical incapacity, the applicant is not being employed by any one else after the accident. The applicant, therefore, claimed compensation to the tune of Rs. 1 Lakh from the opponents.

(g) The applicant addressed a notice dated 13th February, 1995 by registered post A.D. to the opponents. The opponents did not comply with the notice and, therefore, the applicant filed an application (WCA) No. 13 of 1995 on 20th February, 1995 in the Court of learned Commissioner for Workmen Compensation/Labour Court at Jalgaon.

(h) The applicant had also filed an application below Exhibit U-2 seeking condonation of delay caused in filing the main application for compensation. The opponents were heard by the trial Court and by the order dated 20th April, 1996 allowed the application seeking condonation of delay and adjourned the case for filing of the written statement by the Opponents to 20th April, 1996 Mr. Patil learned Counsel for the applicant submits that said order was not challenged on behalf of the Opponent No. 1.

(i) The Opponent No. 1 filed written statement in response to the application filed by the applicant. The Opponent No. 1 stated in the written statement that on perception of the accident dated 20th February, 1992 and on humanitarian ground the applicant was rushed to the Civil Hospital at Jalgaon. The applicant was in need of manure and, therefore, the Opponent No. 1 has given manure to the applicant. The Opponent No. 1 visited the hospital time and again and extended help of Rs. 5,000/- for medication to the applicant. According to the Opponent No. 1, this amount of Rs. 5,000/- was given simply because the applicant is a poor person and from the same village, that of the Opponent. The application filed by the applicant is illegal and the Opponent No. 1 is not liable and responsible to make the payment of compensation. The applicant has not sustained a serious injury as claimed by the applicant. The left leg of the applicant has not sustained permanent disablement. The applicant, even after the accident, is maintaining good health and capacity to carry on the various agricultural operations, which he was carrying out prior to the accident. This written statement was filed by the Opponent No. 1 on 19th June, 1996.

(j) The Opponent No. 2, though was served, did not remain present before the trial Court and no written statement is filed on his behalf.

(k) The applicant examined himself as witness No. 1 for the applicant and co-labourer Mr. Shankar Kishan Mali was examined on behalf of the applicant. The Opponent No. 1 examined himself in support of his plea. No witness was examined on behalf of the Opponent No. 1. The Opponent No. 2 did not participate in the proceeding.

(l) The trial Court, after hearing the parties, allowed the application filed by the applicant, in part, and directed the Opponent No. 1 to deposit an amount of Rs. 26,029/- towards permanent disability sustained by the applicant in the accident dated 20th February, 1992, within a period of one months from the date of receipt of the order. In case of failure, on the part of the Opponent No. 1 to deposit the amount, as directed by the trial Court, further direction was given for payment of the interest, at the rate of 9% per annum from the date of passing of the order till the date of deposit. The trial Court did not pass any order as to penalty, interest and costs. It is this judgment and order, passed by the trial Court, is challenged in the present appeal under Section 30 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act of 1923, for the sake of brevity), in this High Court, by the Opponent No. 1.

3. Mr. S. A. Dengale learned Counsel for the appellant took me through the judgment of the trial Court, record and proceedings and evidence lead on behalf of the parties. He submits that the applicant was not employed by the Opponent No. 1 on the date of accident, dated 20th February, 1992. The Opponent No. 2 i.e. the driver of the Opponent No. 1, has been acquitted by the learned Judicial Magistrate, First Class in the criminal case filed against him regarding the accident in question. He has also invited my attention to the statement made by the Opponent No. 1 in his evidence that an amount of Rs. 6,000/- was incurred by way of expenses by the Opponent No. 1 for treatment to the applicant. Opponent No. 1 also donated his blood. The medical certificate, which is on record, is a xerox copy. The applicant has not sustained permanent disablement to the tune of 40%.

4. Mr. V.Y. Patil, learned Counsel for the respondent has invited my attention to the evidence of the applicant himself and co-labourer Shankar Sopan Mali. The relationship between the applicant and Opponent No. 1 as workman and employer, according to him, is established. The accident did take place during the course of employment and out of the nature of employment. He has referred to the medical certificate, which is on record. He has also referred to the certified copies of complaint regarding said accident, and filing of the charge sheet against the Opponent No. 1. The Opponent No. 2 did not accept the notice and, therefore, envelop along with the registered post acknowledgment received by the applicant is placed on record. The Opponent No. 1 accepted the notice. Copy of the notice is on record at Exhibit U-23. This notice is dated 13th February, 1995. This notice was served to the Opponent No. 1 and acknowledgment of the Opponent No. 1 is on record Exhibit U-23. According to the applicant, the Opponent No. 1 did not reply the notice Exhibit U-23. Mr. Patil has also invited my attention to the provision laid down under Section 4A of the Act of 1923. He states that the applicant is entitled for interest and penalty, however, the trial Court has illegally refused the interest and penalty in favour of the applicant. According to Mr. Patil, interest and penalty is mandatory and trial Court ought to have granted interest and penalty in accordance with Section 4A of the Act of 1923. However, he fairly admits that there is no cross-objection filed by the applicant in this respect. He also admits that no other proceeding is taken out by the applicant against refusal of the interest and penalty under Section 4A of the Act of 1923. He seeks modification of the order passed by the trial Court regarding interest and penalty, as per Section 4A of the Act of 1923.

5. This appeal is filed by the Opponent No. 1 under Section 30 of the Act of 1923. It is apropos to refer the Full Bench judgment of Bombay High Court in the matter of Gangwani and Co., Nagpur v. Mrs. Saraswati Wd/o Maniram Banewar, reported in 2001(3) Mh.L.J. 6. In the matter of Gangwani (supra) the Full Bench of this Court considered the scope of the provision laid down under Section 30 of the Act of 1923 and Clause 15 of Letters Patent (Bombay). In para 33 of the judgment, the Full Bench of this Court held:

33. Though Section 30 of the Workmen's Compensation Act provides appeal against the order passed by the Commissioner, however, all the orders passed by the Commissioner are not appealable and the jurisdiction of the Appellate Court under this section is limited one and can be exercised when there is a substantial question of law involved in the matter. The High Court will not interfere with the findings arrived at by the Commissioner when the same are not vitiated by substantial error of law. In this context, it appears that at the most appellate remedy provided under Section 30 of the Workmen's Compensation Act can be equated for the limited purpose with that under Section 100 of the Code of Civil Procedure since in both these cases, interference by the High Court is possible only if there is a substantial question of law involved and not otherwise. Section 100-A of the Code of Civil Procedure puts an embargo on any further appeal under Letters Patent against an appellate judgment rendered by the Single Judge of the High Court. The object is to minimize delay and give finality to the adjudication. Section 100-A is inserted by the Amending Act of 1976 and after enforcement of Section 100-A, no appeal would be available from the judgment, decree or order of Single Judge in second appeal. Though the decision given by the Single Judge of the High Court in appeal under Section 30 of the Workmen's Compensation Act, in the circumstances of the case, is not a judgment as envisaged in Clause 15 of the Letters Patent (Bombay), however, even if we presume it to be so, even then the decision given by the Single Judge under Section 30 of the Workmen's Compensation Act will have same effect as that of the decision rendered by the Single Judge in second appeal and in view of Section 100-A of the Code of Civil Procedure, Letters Patent Appeal against such decision of the Single Judge will not be maintainable. The view expressed by us is also consistent with the aims and objects of the Workmen's Compensation Act.

6. Thus, the jurisdiction of the learned Single Judge of this Court, while hearing the appeal filed under Section 30 of the Act of 1923, as an appellate Court, is limited one and can be exercised where there is a substantial question of law is involved in the appeal. However what is the substantial question of law, is nowhere defined under the provisions of the Act of 1923. It is also not desirable and practicable to state as to what are the situations where a substantial question of law will be said to be involved in the appeal. In my view, however, it is clear from Section 30 of the Act of 1923 that, if a question of fact has been determined by the Commissioner for Workmens Compensation, after taking into consideration the material on record and by applying well settled principles of law, then this Court may not interfere with the findings of fact only on the ground that two views are possible or on appreciation of the evidence a different view than the view taken by the learned Commissioner for Workmens Compensation can be taken. It has also to be seen and considered by this Court, while exercising the jurisdiction under Section 30 of the Act of 1923, that the learned Commissioner for Workmens Compensation, while arriving at a finding of fact, has overlooked the material evidence or has relied upon inadmissible evidence. This Court also has to take into consideration, whether the learned Commissioner for Workmen's Compensation has applied relevant provisions of the Act of 1923 wrongly and/or the finding arrived at by the learned Commissioner for Workmen's Compensation, is based on no evidence. If the learned Commissioner for Workmen's Compensation recorded a finding only on the basis of conjecture or surmises, it also can be looked into by this Court, while considering the involvement of the substantial question of law under Section 30 of the Act of 1923.

7. The learned Counsel Mr. Dengale refers to Ground Nos. Ill and X, involving substantial questions of law, according to him, which are reproduced herein below:

(III) That the Court below erred in holding that the applicant proved that he was in the employment of opponent No. 1 on 20-2-1992 as a Mazdoor on tractor No. MHO-4216 and trolley No. MHS-7557. (X) That the Court below erred in holding that the alleged incident is arising out of and in the course of employment.

8. Apart from the abovementioned grounds, according to the learned Counsel Mr. Dengale, following will be the substantial question of law which arise in the present appeal. He seeks permission to amend the memo of appeal accordingly:

Whether the applicant can be said to be "workman" within the meaning of Section 2(a)(n) of the Workmen's Compensation Act, 1923?

9. After hearing the counsel Mr. V.Y. Patil, for the respondent, liberty is granted in favour of the appellant to amend memo of appeal regarding the ground referred to above, as Ground No. XVUL.

10. I am considering the last ground argued by learned Counsel Mr. Dengale before other grounds. The definition of "workman" under Section 2(1)(n) of the Act of 1923, is reproduced hereinbelow:

2. Definitions. - (1) In this Act, unless there is anything repugnant in the subject or context, -

(n) "workman" means any person who is -

(i) a railway servant as defined in Clause (34) of Section 2 of the Railways Act, 1989 (24 of 1989) not permanently employed in an administrative district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ia)(a) a master, seaman or other member of the crew of a ship.

(b) a captain or other member of the crew of an aircraft,

(c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle. (d) a person recruited for work abroad by a company, and who is employed outside India in any such capacity as is specified in Schedule II and the ship, aircraft or motor vehicle, or company, as the case may be, is registered in India, or:

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them.

11. The applicant has specifically alleged in the application that he was working as agricultural labour, three years prior to the date of the accident i.e. 20th February, 1992, with the Opponent No. 1. The work of transportation of manure of the Opponent No. 1, by tractor and trolley owned by the Opponent No. 1, from village Dohari to Paldhi was on, on 20th February, 1992. The substantive evidence of the applicant do indicate that he was in the employment of the Opponent No. 1 as Mazdoor on 20th February, 1992, on tractor No. MHW-4216 and trolley No. MHS-7558, owned by the Opponent No. 1, on salary of Rs. 30/- per day. The Opponent No. 2 was the driver of Opponent No. 1. The applicant was accompanied by two other labourers on 20th February, 1992 viz. Sopan Pundalik and Shankar Kishan Mali for said transportation, loading and unloading of the manure. In the cross-examination, it was suggested to the applicant that he was not in the employment of the Opponent No. 1 on the date of accident, which he denied. It was also suggested to the applicant that though the applicant was not in employment of the Opponent No. 1, however, being friend of driver i.e. Opponent No. 2, the applicant was travelling from the tractor and met with an accident. However, no admission, helpful to the case of the Opponent No. 1, showing that there was no relation of "employer-employee" in subsistence on the date of accident i.e. on 20th February, 1992 was secured. The evidence of co-labourer Shankar Kishan Mali also supports the case of the applicant. Shankar Mali claims in his substantive evidence that he was working on tractor along with other employee by name Sopan, Bharat Patil (applicant) and driver i.e. Opponent No. 2, on the date of the accident. In the cross-examination of Shankar, it was suggested to him that Opponent No. 1 and Opponent No. 2 have never engaged the applicant as the labourer. Shankar, witness No. 2 for the applicant, obviously denied the suggestion. He also denied the suggestion that he being a friend of the applicant, is deposing falsely. Thus, nothing is derived from the evidence of Shankar Kishan Mali regarding the claim of the applicant that the applicant was working as labour on the tractor and trolley owned by the Opponent No. 1, on 20th February; 1992.

12. The evidence of Opponent No. 1 Namdeo is also perused by me. The Opponent No. 1 maintains, in his evidence, that the applicant was not employed by him as a labour on tractor and trolley and has also not instructed the applicant to go with the tractor. The Opponent No. 1 Namdeo, however, admits in the cross-examination, that work of transportation of manure from Dohari to Paldhi by tractor was being done by the driver. He further states in the cross-examination that he does not remember who were working on tractor. Opponent No. 1 Namdeo also admits that Opponent No. 2 Bhaskar Eknath is his nearest relative from the side of his sister. Opponent No. 1 Namdeo further admits that Opponent No. 2 Bhaskar was working with him as a driver for about one and half year before the date of accident. He admits that work of loading and unloading (transporting) was started and in progress prior to two days of the accident.

13. The evidence of witness No. 2 Bhaskar, for the Opponent No. 1, is perused by me. Mr. Bhaskar admits that he was working as a tractor driver with the Opponent No. 1 and on 20th February, 1992 he was loading/unloading and transporting manure (Shenkhat) to Paldhi village. According to Bhaskar, the Opponent No. 2, present applicant, was never employed as a Mazdoor by opposite party or himself. He states that the applicant was travelling on tractor from Jamner and suddenly came near the jack and got injured. On a pointed question, he states, in the cross-examination, that he does not remember the names of labourers working at the relevant time. Issue No. 1 is regarding the employment of the applicant with the Opponent No. 1 on 20th February, 1992 as a Mazdoor on tractor No. MHW-4216 and Trolley No. MHS-7558. The trial Court has recorded a finding, on this issue No. 1, after appreciation of the evidence on record, in favour of the applicant. The finding recorded by the trial Court is not perverse. The present applicant is a workman since, he was recruited as a Mazdoor or Labourer in connection with motor vehicle i.e. tractor No. MHW-4216 and Trolley No. MHS-7558. "Motor Vehicle" is not defined under the Act of 1923. However, it is defined under Section 2(21) of the Motor Vehicles Act, 1988, which is reproduced hereinbelow:

Light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.

14. Having considered the nature of the vehicle in the present case i.e. tractor and trolley bearing registration No. MHW-4216 and Trolley No. MHS-7558, engaged for transportation of manure by the Opponent No. 1, and having considered the evidence on record, I am of the firm opinion that the applicant has established that he was a "workman" within the meaning of Section 2(1)(n) of the Act of 1923.

15. The date of the accident is material for the consideration of rights and liabilities of the parties, in relation to Sections 3, 4 and 4-A of the Act of 1923. The Apex Court, in the matter of Oriental Insurance Co. Ltd v. Khajuni Devi and Ors. held that the question is settled by Three Judge Bench of the Apex Court in Kerala SEB v. Valsala K. . The three Judge Bench of the Apex Court, held that the date of accident, and not the date of adjudication of the claim, is material while considering the rights and liabilities of the parties in relation to Sections 3, 4 and 4-A of the Act of 1923. In the facts of the case on hand, the date of the accident is 20th February, 1992.

16. The Ground No. Ill, pointed out by the learned Counsel Mr. Dengale is in respect of the claim of the applicant that he was in employment of the Opponent No. 1 on 20th February, 1992, as Mazdoor on tractor No. MHW-4216 and Trolley No. MHS-7558. Evidence of Witness No. 2 for the applicant Shankar Kishan Mali substantiate the contention of the applicant. The fact that the applicant and co-labourer Shankar Kishan Mali, Witness No. 2 for the applicant, were working on the date of the accident on tractor and trolley of the Opponent No. 1 is, thus, pleaded in the Application and the evidence is also adduced. In the cross-examination of Witness No. 2 Shankar Kishan Mali, it is not suggested even that Shankar Kishan Mali was not employed by the Opponent No. 1 as he claims on 20th February, 1992. Suggestion only is given that the witness Shankar Mali being friend of the applicant (Bharat) is deposing falsely. After considering the evidence of Opponent No. 1 Namdeo and Opponent No. 2 Bhaskar, on the point of employment of the applicant. I am satisfied that the fact of employment of the applicant with Opponent No. 1, proved in the evidence of applicant and his witnesses, did remain unshattered. The accident took place at about 09.00 a.m. on 20th February, 1992. The tractor was plying on the road from village Dohari to Paldhi, the native place of Opponent No. 1. Thus, the evidence on record, is sufficient for holding that the accident in question took place on 20th February, 1992 and is thus arising out of and in the course of employment of the applicant with the Opponent No. 1. The learned Commissioner for Workmen's Compensation, after assessing the evidence on record, justifiably recorded a finding on this point, in favour of the applicant.

17. Mr. Dengale, the learned Counsel, submits that there is no evidence regarding the previous employment of the applicant with the Opponent No. 1. Section 3 of the Act of 1923 contemplates the personal injury to a workman, by accident, arising out of and in the course of his employment. The period of employment of the workman concerned with his employer is immaterial. On the date of accident, the relationship between the person filing an application seeking compensation under Section 3 of the Act of 1923 with the employer is material provided the person concerned was workman within the meaning of Section 2(1)(n) of the Act of 1923. It is apposite to refer to the judgment of this Court in the matter of Shivaji Krishna Gaikwad and Ors. v. Telecom District Engineer, Sangli reported in 1996(2) MhLJ. 874 : 1998 ACJ 246. In the matter of Shivaji (supra) the learned Single Judge of this Court held that the compensation provided under the Workmen's Compensation Act is not a charity to the workman but it is a legal right and security against any accidental events, arising out of and in the course of employment. The minimum amount of compensation under Section 4-A is Rs. 20,000/-. The injured workman may be a casual labourer or a regular employee, even if a workman has worked for a day and he met with an accident, the length of his service is irrelevant for the purpose of awarding compensation under the Act. I am in respectful agreement with the view taken by the learned Single Judge of this High Court in Shivaji's case (supra).

18. From the pleading and evidence, it is proved that the applicant was in employment of the Opponent No. 1 at the time of accident. It is useful to refer to a Division Bench judgment of this Court in the matter of Zubeda Bano and Ors. v. The Divisional Controller, Maharashtra State Road Transport Corporation, Nagpur and Ors. reported in 1990 Mh.LJ. 685 : 1990 LAB. I.C. 1781. The facts in the matter of Zubeda Bano (supra) were that one Abdul Aziz, aged 51 years, was a bus driver in the service of the Maharashtra State Road Transport Corporation on 7th November, 1983. In the regular course of his employment, he drove a passenger bus from Umred to Nagpur. The bus reached Nagpur at about two hours late at 08.30 p.m. The second part of the journey was to commence for destination Girad at 09.30 p.m. The bus was stationed at the bus stand platform, all passengers got down and the conductor Iqbal Shaikh proceeded to issue tickets. When the first two passengers to Girad - Ramchandra and Mohd. Hussain - entered the bus, they found Abdul Aziz lying unconscious on the bonnet and the steering wheel. They reported the matter to the conductor who along with mechanic Mohd. Akaram entered the bus, lifted the body of Abdul Aziz, put it in the lying condition and straightway took the bus to the Government Medical College Hospital, where Abdul Aziz was declared dead by the attending doctor at about 09.00 p.m. The death was attributed to heart failure due to sudden heart-attack. In the background of these facts the Division Bench of this Court, in the matter of Zubeda Bano (supra) held that:

It is well established that under this section, there must be some causal connection between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particular disease, he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment then it could be said that the death arose out of the employment and the employer would be liable.

In the case on hand, evidence on record is sufficient to show that the applicant has sustained injury in the course and out of the employment on 20th February, 1992. In my opinion, therefore, the learned Commissioner for Workmen's Compensation was justified in recording a finding on this point, in favour of the applicant.

19. The Ground No. X, pointed out by the learned Counsel Mr. Dengale, is regarding the finding recorded by the learned Commissioner for Workmen's Compensation in respect of the accident that it arose out of and in the course of employment. As noted above, in my opinion, the evidence on record is sufficient to hold that the applicant was in the employment of Opponent No. 1 on the date of accident and the accident in question arise out of and in the course of employment of the applicant with the Opponent No. 1. No illegality or perversity is committed by the learned Commissioner for Workmen's Compensation while recording a finding on this ground also.

20. Learned Counsel Mr. V.Y. Patil urged for grant of interest and penalty under Section 4-A of the Act of 1923. It is true that there is no cross-objection filed on behalf of the applicant, in this appeal filed by the employer. The objection of the learned Counsel Mr. Dengale is that in the absence of cross objection or any other proceedings, in the appeal filed by the employer, relief in favour of the applicant, in consonance with Section 4-A of the Act of 1923, for interest and penalty, cannot be granted. The scheme of Section 4-A contemplates that where the employer is not accepting the liability for compensation to the extent claimed by the workman, the employer shall be bound to make provisional payment based on the accident and 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. Sub-section (3) of Section 4-A of the Act of 1923 also provides that 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 six per cent per annum 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. Thus, Section 4-A of the Act of 1923 cast a legal liability on the employer to pay the compensation as soon as it falls due. It is apropos to refer to the judgment of the Apex Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. . The Apex Court held:

9. It was the duty of the appellant, under Section 4-A(1) of the Act, to by the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under Sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty.

It is, thus, clear that the Apex Court held that if the amount of compensation falls due and the employer is in default in paying the compensation due under this Act, within one month from the date it fell due, the Commissioner shall direct the employer, in addition to the amount of arrears, to pay simple interest thereon at the rate of 6% per annum. In the present case, undisputedly, the accident took place on 20th February, 1992. The notice was addressed by the applicant to the Opponent Nos. 1 and 2. Copy of the notice, duly exhibited in the evidence of the applicant, is on record at Exhibit U-23. The said notice is dated 12th February, 1995. The acknowledgment of this notice, by the respondent No. 1 is also on record at Exhibit 27. Undisputedly, notice was not replied nor complied with. Mr. Dengale, the learned Counsel for the Opponent No. 1, submits that a sum of Rs. 13,020/- was deposited with the learned Commissioner for Workmen's Compensation on 29th July, 1999 and 6th September, 1999. According to him, as against the total amount of compensation, as awarded by the learned Commissioner, was to the tune of Rs. 26,029/-, however, he deposited Rs. 26,040/- on two occasions, as noted above. Fact remains that this amount was not deposited within a period of one month. The workman was required to approach to the learned Commissioner for Workmen's Compensation and after passing of the Award this amount came to be deposited by the Opponent No. 1. The applicant was, thus, driven to the necessity of making an application to the Commissioner for settling the claim and after passing of the said order by the learned Commissioner, the amount as awarded, came to be deposited. In this view of the matter, the applicant is entitled for interest on the amount of compensation to the tune of Rs. 26,029/- from the date of the accident i.e. 20th February, 1992 till the date of payment of the said amount.

21. The learned Counsel Mr. Dengale has made a grievance regarding non-filing of the cross objection by the applicant. Section 30 of the Act of 1923 provides a remedy of appeal, in certain contingencies, enumerated under Sub-section (1). Suffice it to say that, in case of non-grant of interest and penalty contemplated under Section 4-A of the Act of 1923, no remedy by way of appeal under Section 30 of the Act of 1923, is made available to the workman. However, if the appeal is filed either by the employer or his injured workman is respondent, he could file a cross-objection. In the present case, undisputedly, the applicant did not file any proceeding or cross-objection in this appeal also. The applicant, however, in view of the ratio of the Apex Court in the case of Pratap Narain Singh (supra), is entitled for interest at the rate of 6% per annum on the amount of compensation. In this fact situation, according to me, to do complete justice between the parties, relief to the applicant i.e. non-appealing party can be granted under Order 41 Rule 33 of the Code of Civil Procedure. For this purpose, it is useful to refer to the Division Bench judgment of the Kerala High Court in the matter of Vijayaraghavan v. Velu and Anr. reported in 1973 A.C.J. 158. In the case of Vijayaraghavan (supra) the Division Bench of Kerala High Court held that the power under Order 41 Rule 33 of the Code of Civil Procedure could be exercised even where the appeal is not under the Code of Civil Procedure but is an appeal provided under the provisions of a statute also appears to be now well settled. The practice which must govern the appeal must be the practice of the Court to which the appeal lies unless it be indicated otherwise. If an appeal has been provided to the High Court in regard to any civil matter the provisions of the Code of Civil Procedure in regard to appeals so far as they are not repugnant to the provisions of the enactment which confers the right of appeal to the High Court may be applicable. This is no longer open to doubt in view of the decision of the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. AIR 1957 SC 367. In this view of the matter, in my opinion, this Court, by exercising the powers under Order 41 Rule 33 of the Civil Procedure Code, can grant a relief in favour of the applicant though there is no cross-objection or any other proceeding filed by the original applicant for the relief under Section 4-A of the Act of 1923.

22. I have perused the finding of the trial Court while refusing the interest and penalty under Section 4-A of the Act of 1923. The finding recorded by the trial Court disallowing the interest is erroneous and needs to be quashed and set aside. However, the amount of interest contemplated under Sub-clause (a) of Sub-section (3) of Section 4-A of the Act of 1923 and penalty provided under Sub-clause (b) of Sub-section (3) of Section 4-A of the Act of 1923, are two distinct things. The Apex Court, in the matter of L.R. Ferro Alloys Ltd. v. Mahavir Mahto and Anr. , referred the judgment of the Apex Court in the matter of Ved Prakash Garg v. Premi Devi reported in 2 and observed that the payment of interest and penalty are distinct liabilities arising under the Act, while liability to pay interest is part and parcel of legal liability to pay compensation upon default of payment of that amount within one month.

23. Thus, in view of this position, the Opponent No. 1 is liable to make the payment of compensation along with interest at the rate of 6% per annum from the date of accident i.e. 20th February, 1992 till the date of payment. Undisputedly, the applicant had filed an application seeking condonation of delay, along with the main application for compensation No. 13 of 1995. The delay was condoned by the learned Commissioner for Workmen's Compensation by passing order below Exhibit U-2 on 18th March, 1996. In this view of the matter, I am not inclined to direct the payment of penalty against the Opponent No. 1.

24. In this view of the matter, the appeal filed on behalf of the Opponent No. 1, needs to be dismissed since no substantial question of law is involved. Since the applicant is entitled for interest on the amount of compensation to the tune of Rs. 26,029/- from the date of accident i.e. 20th February, 1992 till the date of payment i.e. 29th July, 1999 and 6th September, 1999, at the rate of 6% per annum, as was in operation on the date of the accident, following is the order passed:

25. The appeal is dismissed, without any order as to costs. The appellant, who is Opponent No. 1 in Application (WCA) No. 13 of 1995 is directed to deposit the amount of interest from 20th February, 1992 till 29th July, 1999 and 6th September, 1999, on the amount of compensation, to the tune of Rs. 26,029/-, at the rate of 6% per annum, with the Commissioner for Workmen's Compensation, Jalgaon within a period of ten weeks from today. The Appeal is disposed of accordingly.