Smt.Raiwantabai W/O Ramdas ... vs Nagpur Municipal Corporation ...
2017 Latest Caselaw 5659 Bom

 fa580.06.J.doc                    1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                        FIRST APPEAL NO.580 OF 2006

          Smt. Raiwantabai w/o Ramdas Sardare,
          Aged about 55 years,
          Occ: Housewife, R/o New Indora,
          Republican Nagar, Nagpur-14.     ....... APPELLANT

                                   ...V E R S U S...

          Nagpur Municipal Corporation,
          through Municipal Commissioner,
          Nagpur Municipal Corporation,
          Nagpur.                                            ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Akash Sorte, Advocate h/f Shri S.P. Gadling, Advocate
          for Appellant.
          Shri A.M. Kukde, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

          DATE:               th
                            4    AUGUST, 2017.


 ORAL JUDGMENT


 1]               This appeal, which is directed against the judgment

and order dated 24.07.2003, passed by Commissioner under

Workmen's Compensation Act and the Labour Court, Nagpur in

W.C.A. Case No.43/1997 raises a very short question for

consideration.

2] The appeal is preferred by the legal heir of deceased

Ramdas Sardare, who was working with respondent as a Drainage

Kuli (cleaner). He was getting the salary of Rs.2940/- per month.

At the time of his death, he was running the age of 67 years. His

accidental death took place on 11.03.1996 at about 09:30 a.m.

during the course of employment while he was performing his

duty of Sweeper behind Saint Johns High School, Nagpur.

3] The appellant is the widow of the deceased

therefore, she has filed the claim petition before the Commissioner

Workmen's Compensation, seeking compensation of

Rs.1,28,330/-. In support of her case, she examined herself and on

appreciation of her evidence, the Commissioner allowed her

application. After making the necessary calculation to which the

appellant can become entitled, it was held by the Commissioner

that she could be entitled for Rs.1,88,645/- towards

compensation. However, in para 18 of its judgment, the learned

Commissioner held that as she is demanding the compensation of

Rs.1,28,330/-, she will be entitled to that much amount only and

not more. Accordingly, respondent was directed to pay the

appellant the amount of Rs.1,28,330/- only.

4] Hence the only point arising for my consideration is,

whether the Commissioner was justified in granting only

Rs.1,28,330/- to appellant when she was found entitled to get

Rs.1,88,645?

5] As rightly submitted by learned counsel for appellant,

the reasoning given by the Commissioner for awarding this

amount of Rs.1,28,330/, merely because it was claimed by the

appellant, when in fact she was found to be entitled legally to get

the amount of Rs.1,88,645/-, is completely erroneous and that

finding has to be quashed and set aside. Needless to state that it

is the duty of the Commissioner under Workmen's Compensation,

to award the amount of compensation which is just, adequate and

fair and which amount the claimant is found entitled to get under

the statute and not that amount which the claimant demands or

does not demand. The Commissioner for Workmen's

Compensation has thus, failed in his duty in not awarding the

reasonable amount of compensation to which the Commissioner

has held the appellant entitled to, that is the amount of

Rs.1,88,645/-. Hence, to that extent definitely interference is

warranted in the impugned judgment and order of the

Commissioner.

6] Another ground on which the appeal is filed is that

the learned Commissioner has awarded the penalty of 25% only.

It is submitted that as per Section 4A(B) of the Workmen's

Compensation Act, the Commissioner can grant, in addition to the

amount of the arrears and interest thereon, a further sum not

exceeding 50% of such amount by way of penalty. Herein it is

submitted that, as only 25% is granted by way of penalty, the said

amount needs to be enhanced to 50%.

7] However, as rightly submitted by learned counsel for

respondent, Section 4A (3B) of the Workmen's Compensation Act

clearly provides that the Commissioner, if in his opinion, there is

no justification for delay, direct that the employer shall, in

addition to the amount of arrears and interest thereon, pay a

further sum not exceeding 50% of said amount by way of penalty.

8] Therefore, this sub-clause 3B of Section 4A of the

Workmen's Compensation Act, is very clear that if there is no

justification for the delay on the part of the respondent employer,

then only there will be direction of paying penalty not exceeding

50%. In the instant case, the explanation is offered by the

respondent on the count that the application itself was filed about

15 months after the accident and hence, there was some delay on

the part of the respondent. The impugned order of the

Commissioner reflects that the Commissioner has considered the

same and therefore instead of awarding 50% of the penalty,

awarded 25% of penalty only. Hence, in my opinion no

interference is warranted in that aspect.

9] As a result, the appeal is allowed partly.

10] Appellant is held entitled to get the compensation of

Rs.1,88,645/- with 12% interest from the date of application till

realization with 25% penalty on the said amount of compensation.

11] The appeal stands disposed of in above terms with no

order as to costs.

JUDGE

NSN