Bombay High Court
Shaikh Kabir Mohd Yusuf vs Sakhubai Shankar Shejwal And Anr on 1 August, 2017
Bench: P.R. Bora
1 649.2008FA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
FIRST APPEAL NO.649 OF 2008
Shaikh Kabir Mohd Yusuf
Age : 50 years, Occu : Business,
R/o. Jinsi, Aurangabad ... Appellant
(Orig. Defendant No.1)
VERSUS
01. Sakhubai w/o Shankar Shejwal
Age : 45 years, Occu : Nil,
R/o. Jategaon, Tq. Phulambri,
Dist. Aurangabad
02. Govind Jaywant Kasare
Age : Major, Occu : Supervisor,
R/o. Naigaon, Tq. &
Dist.Aurangabad ... Respondents
(Orig. Defendant No.2)
..........
Shri. A.P. Bhandari, Advocate for appellant
Shri. B.V. Dhage, Advocate for respondent No.1
.............
CORAM : P.R. BORA, J.
Reserved on : 29.06.2017
Pronounced on: 01.08.2017
JUDGMENT :
. The appellant has filed the present appeal against the
Judgment and Award passed in Workmen's Compensation
Application No.48/2000 decided by the Workmen's Compensation
Commissioner at Aurangabad on 25th October, 2007.
2 649.2008FA
2. Vide the impugned Judgment and Award, the Workmen's
Compensation Commissioner has awarded the compensation of
Rs.1,83,357/- to the claimant i.e. respondent no.1 herein. The
tribunal has also awarded interest on the amount of compensation at
the rate of Rs.15% and has also imposed the penalty to the extent of
50% amount of the compensation.
3. Heard Shri. A.P. Bhandari, learned Counsel for the
appellant and Shri. B.V. Dhage, learned Counsel for respondent no.1.
Perused the impugned Judgment and other material placed on
record.
4. The impugned Judgment is challenged on the following
three grounds :
(i) That, though there is no sufficient evidence as about the
employer employee relationship between the appellant and
respondent no.1, the Commissioner has held the appellant
liable to pay the amount of compensation to Respondent
no.1.
(ii) That, the Commissioner without assigning any reason has
awarded the interest on the amount of compensation at the
rate Rs.15% per annum.
(iii) That, without giving any notice, the Commissioner has
imposed 50% amount of the compensation by way of
penalty.
5. Perusal of the impugned Judgment and Award show that,
relying on the written statement filed by respondent no.2 and
3 649.2008FA
considering that, the criminal case in relation to the alleged accident
was filed against the appellant, the tribunal has held that, stone
crushing machine involved in the alleged accident was owned by the
appellant and that in the said accident the claimant i.e. respondent
no.1 was injured during the course of her employment with the
appellant.
6. It was brought to my notice by Shri. Bhandari, the learned
Counsel appearing for the appellant that, the written statement filed
by respondent no.2, relying on which the learned Commissioner has
recorded a finding that, respondent no.1 was in the employment of
the appellant was permitted to be withdrawn by the learned
Commissioner and respondent no.1 - claimant had given her no -
objection for the same. In the circumstances, even if the said written
statement is kept out of consideration, the further fact as recorded by
the Commissioner remains that, appellant was prosecuted in relation
to the alleged accident wherein respondent no.1 was injured. As has
been observed by the Commissioner, the fact of the aforesaid
prosecution has not been denied or disputed by the appellant.
Further, no such evidence has also been brought on record by the
appellant to show that, in the said criminal prosecution he had taken
a defence that, he was falsely involved in the said case and that he
was no way concerned with the said case because the crusher
involved in the said matter was neither belonging to him nor he was
running the said crusher. The inference which has been drawn by the
learned Commissioner was, thus, a possible inference. I, therefore, do
not see any reason to cause any interference in the finding of fact so
recorded by the Commissioner.
7. Section 4A of the Workmen's Compensation (Amendment)
4 649.2008FA
Act, 2009 (now 'The Employee's Compensation Act, 1923) deals with
the award of interest and imposition of penalty, which reads thus :
[4A. Compensation to be paid when due and
penalty for default
1) Compensation under section 4 shall be paid as
soon as it falls due.
2) In cases where the employer does not accept
the liability for compensation to the extent
claimed, he shall be bound to make provisional
payment based on the extent of liability which
he accepts, and, such payment shall be
deposited with the Commissioner or made to
the [employee], as the case may be, without
prejudice to the right of the [employee] to
make any further claim.
[(3) 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 twelve per cent, per
annum or at such higher rate not exceeding the
maximum of the lending rates of any scheduled
bank as may be specified by the Central
Government, by notification in the Official
Gazette, 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 :
Provided that an order for the payment of penalty shall not
be passed under clause (b) without giving as reasonable
5 649.2008FA
opportunity to the employer to show cause why it should
not be passed.
Explanation.- For the purposes of this sub-section,
"scheduled bank" means a bank for the time being included
in the Second Schedule to the Reserve Bank of India Act,
1934 (2 of 1934).
[(3A) The interest and the penalty Payable under sub-
section (3) shall be paid to the [employee] or his
dependant, as the case may be.]]
8. From the aforesaid provision, it is quite evident that,
ordinarily the interest on the amount of compensation is to be
granted at the rate of 12% per annum. Though there is no express
bar for awarding interest at the higher rate, it is discernible that, in
case the interest is to be awarded at higher rate, there must be some
cogent and sufficient reasons and the Commissioner must record
these reasons for awarding the interest at the higher rate. In the
instant case, no such reasons are assigned by the Commissioner while
awarding the interest on the amount of compensation at the rate of
15%. From the facts, even otherwise there appears no such case for
awarding the interest at the higher rate. The impugned order to that
extent, therefore, cannot be sustained.
9. Similarly, the penalty could not have been imposed by the
learned Commissioner without issuing any notice to the appellant to
show cause why such order should not be passed against him.
Admittedly, no such notice was issued to the appellant by the
Commissioner. The order imposing penalty also therefore cannot be
sustained and deserves to be set aside. In the result, the following
order is passed.
6 649.2008FA
ORDER
1. The impugned Award so far as it relates to grant of interest
stands modified and the simple interest is made payable at the
rate of 12% per annum in place of 15% per annum as awarded
by the Commissioner.
2. The impugned Award so far as it relates to imposition of
penalty stands set aside.
3. The appeal stands allowed in the aforesaid terms.
( P.R. BORA )
JUDGE
ggp
