Bombay High Court
Prabhakar Vithalrao Kulkarni ... vs The M.S.R.T.C. Thr Its General ... on 4 May, 2016
Bench: V.K. Jadhav
1 FA 913+802.2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 913 OF 2002
WITH
CA/12305/2015 IN FA/913/2002
1) The Divisional Controller,
Maharashtra State Road Transport
Corporation, Osmanabad Division,
Osmanabad.
2) Divisional Managar,
S. T. Depot, Osmanabad.
ig ... Appellants
(Orig. Respondents)
VERSUS
Prabhakar s/o Vithalrao Kulkarni
Died, Through L.Rs.
1) Smt. Shalan w/o Prabhakar Kulkarni,
Age : 55 years, Occ. Household,
R/o, C/o Balaji Dhotrikar,
Farshi Galli, Osmanabad.
2) Kshma w/o Sanjay Kulkarni,
Age 33 years, Occ. Household,
R/o Gorobakaka Nagar,
Sanja Road, Osmanabad. ... Respondents
(LRs. of orig. petitioner)
...
Advocate for Appellant : Mr. A. B. Dhongade
Advocate for Respondents : Mr. Santosh S. Jadhavar
...
WITH
FIRST APPEAL NO. 802 OF 2002
Prabhakar s/o Vithalrao Kulkarni
Died, Through L.Rs.
::: Uploaded on - 07/05/2016 ::: Downloaded on - 30/07/2016 00:57:09 :::
2 FA 913+802.2002.odt
1) Smt. Shalan w/o Prabhakar Kulkarni,
Age : 55 years, Occ. Household,
R/o, C/o Balaji Dhotrikar,
Farshi Galli, Osmanabad,
District Osmanabad.
2) Kshma w/o Sanjay Kulkarni,
Age 33 years, Occ. Household,
R/o Gorobakaka Nagar,
Sanja Road, Osmanabad,
District Osmanabad. ... Appellants
(LRs. of orig. petitioner)
Versus
1)
Maharashtra State Road Transport
Corporation, Mumbai
Through Its General Manager,
Mah. Wahtuk Bhavan, Central Officer,
Biculla, Mumbai.
2) Divisional Managar,
S. T. Depot, Osmanabad. ... Respondents
(Orig. Respondents)
...
Advocate for Appellants : Mr. Santosh S. Jadhavar
Advocate for Respondent 2 : Mr. A. B. Dhongade
...
CORAM : V.K. JADHAV, J.
Dated: May 04, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the Judgment and Award dated
9.11.2001 passed by learned Commissioner, Workman's
Compensation Act, Osmanabad, in W.C.A. No.1/2001,
the original claimant has preferred first appeal
no.802/2002 to the extent of quantum, whereas the
3 FA 913+802.2002.odt
original respondent MSRTC has also preferred first
appeal no.913/2002.
2. Brief facts, giving rise to the present appeals, are
as under :-
a] The claimant was working as driver in MSRTC,
Aurangabad Division, and was attached to Osmanabad
bus depot at the relevant time. He continued his service
till 7.10.1994. On 7.10.1994, he was assigned with the
duty on Osmanabad-Ter bus. Accordingly, on that day,
he had driven the S.T. bus and reached at village Ter at
about 10.00 p.m. and took a halt during the night time
at said village. The claimant suspected leakage of air
from the front right side wheel of the bus and thought it
fit to replace the said tyre with a spare tyre which was
on the top of the bus. Accordingly, claimant started
climbing the top of the bus by using back side iron steps
in order to get the spare tyre. Unfortunately, he could
not control himself and due to slip of hands fell down on
the ground and received serious injury to his wrist. He
was immediately shifted to Civil Hospital, Osmanabad
and then to Civil Hospital Solapur, where he was treated
4 FA 913+802.2002.odt
as an indoor patient for a long term and has undergone
operations on two occasions. Thereafter, the medical
board, General Hospital, Solapur issued a medical
certificate in favour of the claimant stating that he is
unfit for driving heavy vehicles. Even though
respondent MSRTC assured the claimant to continue
him in service by changing his post from driver to peon,
he was retired compulsorily and even no compensation
was paid to him. Since the petitioner sustained injuries
out of and in the course of his employment, the
claimant preferred WCA No.1/2001 for grant of
compensation as provided under the Workman's
Compensation Act, 1923 (for short "the Act of 1923").
B] Respondent MSRTC has denied the liability to pay
compensation on the ground that the injuries sustained
by the claimant were on account of his own negligence.
It has contended that, at the time of sustaining the
alleged injuries, the vehicle was not in a moving
position, nor the claimant was attending his scheduled
work. It is further contended that there is no nexus
between the injuries sustained by him and his duty. It
5 FA 913+802.2002.odt
is further contended that, the claimant invited accident
on his own risk and there was no need to replace the
tyre of the bus. It is also contended that the proposal
for giving appointment to the claimant was turned down
by the head authorities. Learned Commissioner, W.C.
Osmanabad, by its impugned Judgment and Award
dated 9.11.2001, allowed the petition and thereby
directed respondent MSRTC to pay an amount of
Rs.1,71,216/- along with interest @ 12% p.a. from the
date of petition till the date of realization of the amount
along with interest. Hence, these two appeals as stated
above.
3. Learned counsel for the appellant MSRTC submits
that the appeal is preferred by MSRTC to the extent of
quantum. The Commissioner has awarded exorbitant
amount of compensation without adhering to the
provisions of the Act of 1923 as were in force at the time
of accident. The accident had taken place on 7.10.1994
and amendment in Section 4 was carried out with effect
from 15.9.1995. Prior to said amendment, an amount
equal to 50% of the monthly wages of the injured
6 FA 913+802.2002.odt
employee multiplied by the relevant factor or an amount
of Rs.60,000/-, whichever is more, would be the amount
of compensation. In view of the explanation II to Section
4, where the monthly wages of a workman exceed
Rs.1,000/-, his monthly wages for the purpose of clause
(a) and clause (b) shall be deemed to be Rs.1,000/- i.e.
as per the provisions prior to the amendment in the
year 1995. In view of this, learned counsel submits that
the claimants are entitled for amount of Rs.76,545/-
alongwith interest as per Section 4A sub-section (3)
clause (a). Learned counsel further submits that the
Commissioner has wrongly considered the age of the
claimant as 53 years instead of 50 years. Thus, in view
of this, by considering the age of the claimant as 50
years, relevant multiplier is 153.90 and 50% of wages
i.e. fifty percent of 1000 would be Rs.500/-. Hence,
Rs.76,545/- would be the appropriate compensation.
4. Learned counsel submits that, the Commissioner
has awarded compensation by considering the
amendment carried out in the year 1995 and ignored
the fact that the accident had taken place prior to the
7 FA 913+802.2002.odt
said amendment. In view of the provisions of sub-
section (3) of Section 4A, clause (a) and (b), the
Commissioner has rightly awarded interest and there is
no question of imposing penalty.
5. Learned counsel appearing for the respondents-
claimants submits that the Commissioner has not
correctly assessed the compensation. The Commissioner
has not awarded compensation by considering the
salary of claimant which he was drawing at the time of
accident. The Commissioner has not awarded penalty.
The claimant is thus entitled for enhanced
compensation as per the provisions of Section 4 read
with Section 4A of the Act of 1923.
6. The accident had taken place on 7.10.1994. So far
as the amendment to Section 4 is concerned, the same
is with effect from 15.9.1995. It is thus clear that, prior
to the said amendment, where monthly wages of a
Workman exceed Rs.1,000/-, his monthly wages in the
clause (a) and clause (b) shall be deemed to be
Rs.1,000/- only. In view of this, even though monthly
8 FA 913+802.2002.odt
wages of the claimant exceeds Rs.1,000/-, his monthly
wages in view of the clause (a) and (b) of Section 4 for
determining the amount of compensation shall be
deemed to be Rs.1,000/- only. Thus, an amount equal
to 50% of monthly wages of the claimant, multiplied by
the relevant factor or an amount of Rs.60,000/- which
ever is more, would be an appropriate compensation.
7. Learned counsel appearing for the MSRTC
conceded that the Commissioner has committed
mistake in considering the age of the claimant. In view
of age of the claimant as on the date of accident, the
relevant factor is 153.09. If amount equal to 50% of the
monthly wages of the claimant i.e. Rs.500/- multiplied
by the relevant factor, the total compensation comes to
Rs.76,545/-. Since the same exceeds to the amount of
Rs.60,000/-, the claimant is entitled for the same with
interest @ 12% as per the provisions of Sub Section (3)
Section 4(A) clause (a) of the Act.
8. So far as the question of penalty is concerned, it is
well settled that the burden of payment of penalty is to
9 FA 913+802.2002.odt
be borne by the employer. It is well settled that in a
case Ved Prakash Garg Vs. Premi Devi and others,
reported in AIR 1997 SC 3854, the Supreme Court
held that, penalty is required to be levied under the
provisions of said Act after issuing show cause notice to
the employer concerned who will have reasonable
opportunity to show cause that on account of some
justification on his part, there is delay in making
payment of compensation and thus, he is not liable to
pay the penalty. The Supreme Court has further
observed that, if ultimately, the Commissioner, after
giving reasonable opportunity to the employer to show
cause, takes a view that there is no justification for such
delay on the part of the insured employer and because
of his unjustified delay and due to his personal fault, he
is held responsible for the delay, then penalty would be
imposed on him. The learned Single Judge of this Court
in a case of Udhav Rangnathao Pawar Vs. Sheshrao
Ramjo Jogdand and another, reported in 2009 (5)
Bom.C.R. 523 relying upon Ved Prakash Garg's case,
made similar observations.
10 FA 913+802.2002.odt
9. In view of this, to that extent, the matter is
required to be referred back to the Commissioner for
issuance of notice to MSRTC/employer and to take an
appropriate decision in the matter for imposition of the
penalty. Learned counsel for the claimant submits that
in response to the award passed by the Commissioner,
the MSRTC has deposited entire amount before the
Commissioner. Learned counsel submits that, till the
issue of imposition of penalty is determined by the
Commissioner in terms of modification of the Award by
this Court, the MSRTC shall not be permitted to get the
refund of the compensation already deposited before the
Commissioner.
10 The learned Commissioner has wrongly concluded
that since the interest is awarded, there is no question
of considering the aspect of penalty. In view of the
provisions of sub-section (3) of Section 4-A, clause (a)
and (b), in addition to the interest, if the employer,
without any justification, failed to deposit the
compensation amount after one month from the date of
accident, the employer shall be liable to pay the penalty.
11 FA 913+802.2002.odt
11. Considering the above, following order is passed.
O R D E R
I. First Appeal No. 913 of 2002 The Divisional
Controller MSRTC Vs. Prabhakar Vitthalrao
Kulkarni and First appeal No.802/2002
Prabhakar Vitthalrao Kulkarni Vs.Maharashtra
State Road Transport Corporation and another
are hereby partly allowed with following
directions :-
a]. The Judgment and Award dated 9.11.2001
passed by the Commissioner Workmen's,
Osmanabad in WCA No.1/2001 is modified in
the following manner :-
"The Respondent shall pay an amount of
Rs.76,545/-(Rs. Seventy Six Thousand
Five hundred forty five only) to the
claimants alongwith 12% interest from
the date of the petition till the date of
realization of the entire amount.
b] Matter is referred back to the Commissioner
of WCA, Osmanabad to extent of imposition of
penalty with the following directions.
c] The Commissioner shall issue show cause
notice to the Respondent - MSRTC calling upon
its explanation as to why penalty should not be
imposed and after considering the explanation
12 FA 913+802.2002.odt
and after giving an opportunity of being heard to
both sides, take an appropriate decision in the
matter about imposition of penalty.
d. In both the first appeals parties to bear their
own costs.
II. Award be drawn up in tune with the
modifications. Rest of the Judgment and
Award stands confirmed.
III.
MSRTC is not permitted to get the refund the
of the amount till the issue of penalty is decided
by the Commissioner.
IV. The Commissioner to take appropriate decision
in the final disbursement of the compensation
amount in tune with the issue of imposition of
penalty.
V. Both the appeals accordingly disposed of.
Civil application disposed of.
sd/-
( V.K. JADHAV, J. )
aaa/- ...
