Atmaram Namdeo Andil And Anr vs Prakash Tukaram Thorat And Anr
2016 Latest Caselaw 1657 Bom

                                      1                     FA 208.2002.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                        
                          FIRST APPEAL NO. 208 OF 2002




                                                
                                       ...

         1.      Atmaram s/o Namdeo Andil,




                                               
                 age 45 years, Occ. Nil,
                 R/o Dhagewadi, Tq. & 
                 Dist. Beed.

         2.      Pushpabai w/o Atmaram Andil,




                                     
                 age 40 years, Occ. Household,
                 R/o as above.ig               ...Appellants...
                                               (orig claimants)

                 VERSUS
                            
         1.      Prakash s/o Tukaram Thorat,
                 age 35 years, Occ. Business,
                 R/o Kumbhephal, Tq. Kaij,
      

                 Dist. Beed.
   



         2.     United India Insurance Co. Ltd.,
                Through Its Divisional Manager,
                Vinayakrao Patil Chowk, Osmanpura,
                Aurangabad.





                                                 ...Respondents...
                                     ...
               Advocate for Appellants : Mr Mohit Deshmukh 
               Advocate for Respondent 2 : Mr M S Deshmukh 
                                     ...





                         CORAM : V.K. JADHAV, J.

Dated: April 20, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the Judgment and Award dated

24.4.2001, passed by the learned Commissioner,

2 FA 208.2002.odt

Workmen's Compensation & Civil Judge S.D (Beed) in

W.C.No.1 of 2000, the original claimants preferred this

appeal to the extent of quantum.

2. Brief facts, giving rise to the present appeal, are as

under :-

a] Deceased Bibhishan was working as a labourer

with respondent no.1 Prakash since one year prior to his

death for loading and unloading tractor bearing

registration No.MH-23-3452 and trolley bearing

registration No.MH-23-C-3569. On 20.9.1999 said

tractor was proceeding to Beed from Kaij and on way

one truck bearing registration No.AP-04-T-5121 coming

from the opposite direction gave dash to the Tractor. In

consequence of which, deceased Bibhishan had

sustained multiple injuries and died on the spot. The

appellants/legal representatives preferred claim before

the Commissioner, Workmen's Compensation for grant

of compensation.

b] Respondent No.1 Employer has not disputed the

employer-employee relationship, however, denied the

3 FA 208.2002.odt

liability on the ground that, the vehicle involved in the

accident was insured with respondent no.2-insurer and

therefore, he is not liable to pay the compensation. The

Respondent insurer has strongly resisted the petition by

filing written statement.

C]. The learned Commissioner has partly allowed the

W.C. and thereby directed the respondents to pay the

compensation of Rs.1,17,700/- jointly and severally.

Being aggrieved by the same, the original claimants

preferred this appeal to the extent of quantum.

3. Learned counsel for the appellants submits that,

the claimant no.1 has deposed before the Commissioner

that his deceased son Bibhishan was getting Rs.70/-

per day as wages. Learned counsel submits that, even

respondent no.1 has also examined himself and

supported this fact. Learned counsel submits that, the

Commissioner has discarded his evidence on the ground

that the employer has not maintained any register

regarding the payment of wages to the labourers.

Learned counsel submits that, the Commissioner has

4 FA 208.2002.odt

erroneously considered the wages of deceased

Bibhishan to the tune of Rs.35/- per day. Learned

counsel submits that, the Commissioner ought to have

considered the wages of deceased Bibhishan @ Rs.70/-

per day and accordingly calculated and awarded the

compensation. Learned counsel submits that the

Commissioner has also not awarded any interest.

Learned counsel submits that interest to be paid from

the date of accident to a workman as compensation falls

due on this date. Learned counsel submits that, so far

as the penalty to be imposed on the respondent-insurer

is concerned, the claimant waives the same.

4. Learned counsel for respondent insurer submits

that, the respondent employer has not maintained any

register regarding payment of wages. Learned counsel

submits that, the accident had taken place on 20.9.1999

and at that time the labourers were getting up to

Rs.50/- per day and not more than that. Learned

counsel submits that, the Commissioner has rightly

awarded the compensation by considering the wages of

deceased Bibhishan @ Rs.35/- per day. Learned counsel

5 FA 208.2002.odt

submits that, no interference is required and thus

appeal is liable to be dismissed with costs.

5. The claimant no.1 has deposed before the

Commissioner that deceased Bibhishan was getting

daily wages @ Rs.70/- per day. Moreover, the

respondent-employer has also supported this fact. It

appears that the learned Commissioner has discarded

this evidence on the ground that the respondent

employer has not maintained any register for payment of

wages to the labourers. It appears from the evidence

that respondent-employer is having only one Tractor and

Trolley for carrying out his business. In these

circumstances, it cannot be expected from him to keep

or maintain any register regarding payment of wages to

the labourers. There is nothing in his cross

examination to disbelieve the respondent no.1 employer.

6. It appears from the impugned judgment and award

that the Commissioner for no reasons considered the

daily wages of deceased Bibhishan @ Rs.35/-. It further

appears from the record that the respondent-insurer

6 FA 208.2002.odt

has not raised a ground before the Commissioner that

at the relevant time, labourers were being paid @

Rs.50/- per day or less than that. In view of this, in my

considered opinion, the Commissioner ought to have

considered the daily wages of deceased Bibhishan @

Rs.70/- per day. Furthermore, the Commissioner has

not awarded any interest. The respondent-employer has

not denied the employer-employee relationship and he

has also admitted that death of deceased Bibhishan had

taken place out of and during the course of his

employment. Thus, the compensation falls due within

one month from the date of accident and since the same

is not paid or deposited with the Commissioner

concerned, the claimants are entitled for the interest @

12% p.a.

7. Learned counsel for the appellant rightly places

his reliance on a case Oriental Insurance Company

Ltd. Vs. Siby George and others reported in 2012 DGLS

(Soft) 427, wherein in paragraph no.4 of the Judgment

the Supreme court has made following observations :-

7 FA 208.2002.odt

"4. Mr. Mehra, learned counsel appearing for the appellant, submitted that the learned

Commissioner was wrong in directing for

payment of interest from the date of the accident and any interest on the amount of compensation would be payable only from the

date of the order of the Commissioner. In support of the submission, he relied upon a decision of this Court in National Insurance

Co. Ltd. vs. Mubasir Ahmed and Anr. (2007)

2 SCC 349, in which it was held that the compensation becomes due on the basis of

the adjudication of the claim and hence, no interest can be levied prior to the date of the passing of the order determining the amount

of compensation. In paragraph 9 of the

decision the Court held and observed as follows:-

"9.....In the instant case, the accident took

place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on

which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A (1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in

8 FA 208.2002.odt

some cases involves the assessment of loss of earning capacity by a qualified medical

practitioner. Unless adjudication is done, question of compensation becoming due

does not arise. The position becomes clearer on a reading of sub- section (2) of Section 4- A. It provides that provisional payment to the extent of admitted liability has to be

made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". .. Significantly, legislature has not used the expression "from the date of

accident"... Unless there is an adjudication, the question of an amount falling due does

not arise." (emphasis added)

8. In view of the above discussion, if it is considered

that deceased Bibhishan was getting wages of Rs.70/-

per day, then it corresponds to (70 x 30) = Rs.2,100/-

p.m. and 50% of the said amount of monthly wages is

required to be considered for the loss of income. So in

view of this, if the monthly dependency of Rs.1,000/- is

multiplied by relevant factor 218.47, the total

compensation comes to Rs.2,18,470/-. Hence, the

claimants are entitled for the same. Hence, following

order.

O R D E R

I. Appeal is hereby partly allowed with proportionate costs.

                                                9                        FA 208.2002.odt



                        II.    The Judgment and Award dated 24.4.2001 




                                                                                    

passed by the learned Commissioner,

Workmen's Compensation and Civil Judge (S.D.), Beed in W.C.No.1 of 2000 is hereby modified in the following manner :-

"The Respondents No.1 and 2 do pay jointly and severally compensation of Rs.2,18,470/-(Rs. Two lacs eighteen

thousand four hundred and seventy ig only) alongwith interest @ 12% p.a. from one month of the date of accident

i.e. 20.10.1999, till realization of the entire amount."

III. Amount already granted as per the award

passed by the Commissioner Workmen's Compensation and Civil Judge (S.D.) Beed, shall be deducted from the modified award.

IV. Award be drawn up in tune with the modifications as aforesaid.

V. Appeal is accordingly disposed of.

                                                          ( V.K. JADHAV, J. )


         aaa/-                                     ....