Latabai Ramkrushna Nikam (Patil) ... vs The General Manager Bharat ...
2017 Latest Caselaw 4981 Bom

                                        1            FA NO.4034 OF 2016

       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                 BENCH AT AURANGABAD

                       FIRST APPEAL NO.4034 OF 2016

  The General Manager,
  Bharat Sanchar Nigam Limited,
  Dhule, Tq. Mohadi Upnagar,
  Dhule.                                            ..APPELLANT
                                                  (Ori. Opponent)
                               VERSUS

  1.       Smt. Latabai Ramkurshna
           Nikam (Patil)
           Age: 47 years,
           Occ.: Household,

  2.       Hemraj Ramkrushna
           Nikam (Patil),
           Age: 22 years,
           Occ: Education,

           Both R/o. Manjare,
           Tq. Malegaon, Dist. Nashik
                                            ..RESPONDENTS
                                             (Ori. Claimants)

                                  ***
           Smt. Manjusha A. Deshpande, Advocate for   appellant.
           Shri. Vivek Bhavthankar, Advocate for Respondent
           Nos.1 & 2.
                                  ***
                                 WITH
              FIRST APPEAL STAMP NO.27448 OF 2015

  1.       Smt. Latabai Ramkurshna
           Nikam (Patil)
           Age: 49 years,
           Occ.: HH,

  2.       Hemraj Ramkrushna
           Nikam (Patil),
           Age: 24 years,
           Occ: Student,




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                                            2                   FA NO.4034 OF 2016

           Both R/o. Manjare,
           Tq. Malegaon, Dist. Nashik
                                                       ...Appellants
                   VERSUS                              (Ori.Applicants)

  The General Manager,
  Bharat Sanchar Nigam Limited,
  Dhule, Tq. Mohadi Upnagar,
  Dhule.
                                                       ..RESPONDENT

                                   ***
           Shri. V.V. Bhavthankar, Advocate for appellants.
           Smt. M.A. Deshpande, Advocate, for Respondent Sole.
                                   ***

                                   CORAM: P.R.BORA, J.

                                          ***
           Date of reserving the judgment: 12/6/2017
           Date of pronouncing the judgment: 25/7/2017

                                          ***

  JUDGMENT:

1. The judgment and award passed by the

Commissioner for Employees Compensation at Dhule on

26th of June, 2015, in Application (ECA) No.91/2013, is

challenged in the present appeal by the respondent

therein.

2. The present respondents had filed the aforesaid

application under Section 10 of the Employees

3 FA NO.4034 OF 2016

Compensation Act, 1923 ( hereinafter referred to as the

`Act of 1923'), seeking compensation of Rs.11,13,040/- on

account of death of Ramkrishna Shravan Nikam (Patil),

husband of respondent no.1 and father of respondent

no.2, alleging the same to have been caused during the

course of his employment. Deceased Ramkrishna was

serving with the appellant as a Telephone Mechanic. On

21st of May, 2012, when deceased Ramkrishna was

checking the defect in telephone wire of telephone

no.247936 and for that purpose had climbed on the

telephone pole, received electric shock and fell on the

ground. By the time he was taken to the Civil Hospital,

Dhule, he succumbed to the injuries caused to him in the

alleged accident.

3. Deceased Ramkrishna was 54 years old at the

time of his death and was drawing monthly salary of

Rs.26,380/-.

4. The application filed by the respondents was

resisted by the appellant on several grounds. The

appellant had denied that deceased Ramkrishna was their

4 FA NO.4034 OF 2016

employee. An objection was also raised that since the

respondents were awarded full pension after death of

Ramkrishna and accordingly respondent no.1 i.e. widow of

deceased Ramkrishna was getting the pension at the rate

of Rs.14,888/- per month, the respondents i.e. original

claimants were not entitled for any compensation. One

more objection was raised that Maharashtra State

Electricity Distribution Company though was a necessary

party and since it was not impleaded as a respondent, the

claim petition was prayed to be dismissed on that ground.

5. Learned Commissioner, after having assessed

the oral as well as the documentary evidence on record,

rejected the objections raised on behalf of the appellant

and held the respondents entitled to the compensation of

Rs.5,70,720/- with interest thereon at the rate of 12 per

cent per annum. Aggrieved thereby, the present appeal

has been filed by the original respondent.

6. Smt. M.A.Deshpande, learned Counsel

appearing for the appellant, assailed the impugned

judgment and award mainly on the ground that the

5 FA NO.4034 OF 2016

learned Commissioner has failed in considering that the

application itself was not maintainable since the

claimants had already received a huge amount towards

compensation by way of retiral benefits concerning to

deceased Ramkrishna. Learned Counsel further submitted

that the widow of deceased Ramkrishna i.e. respondent

no.1 is being paid double the pension than that of her

entitlement and, as such, no further compensation was

liable to be paid to her. Learned Counsel further

submitted that since additional amount of Rs.13,70,470/-

has also been paid by the present appellant to the

claimants because of untimely death of deceased

Ramkrishna during the course of employment, nothing

more was to be paid to the claimant under the Employees

Compensation Act. Learned Counsel, therefore, prayed

for setting aside the judgment and award impugned in the

present appeal.

7. Shri Bhavthankar, learned Counsel appearing

for the respondents, supported the impugned judgment

and award. Learned Counsel submitted that the pecuniary

advantages received to the claimants from other sources

6 FA NO.4034 OF 2016

by reason of death of deceased Ramkrishna cannot be

deducted while determining the amount of compensation

under the provisions of the Employees Compensation Act.

Learned Counsel, therefore, prayed for rejecting the

appeal.

8. I have carefully considered the submissions

made on behalf of the learned Counsel appearing for the

parties. As I have noted earlier, the main ground raised

by the appellant in the present appeal is that when the

widow of the deceased is getting the full pension, nothing

more was liable to be paid by way of compensation under

the provisions of the Employees Compensation Act. The

objection is liable to be rejected at the threshold in view of

the provisions under the Employees Compensation Act.

Section 3 of the Act mandates that the employer shall be

liable to pay the compensation in accordance with the

provisions of Chapter II of the Act if personal injury is

caused to an employee arising out of and in the course of

his employment. The entitlement to the aforesaid

compensation cannot be equated with the right to receive

pension.

9. Family pension is in fact a right of the family

7 FA NO.4034 OF 2016

member of an employee after the death of the said

employee; whether he suffers death during the course of

his employment, or after attaining the age of

superannuation. In the circumstances, merely because

the widow of deceased Ramkrishna is receiving family

pension, it cannot be accepted that no amount of

compensation as determined under the Employees

Compensation Act is liable to be paid to her. The

objection raised by the appellant is devoid of any

substance and deserves to be rejected.

10. The law is further well settled that any amount

paid to the legal heirs of the deceased as ex gratia

compensation, otherwise than in accordance with the

provisions of the Act, does not fall under `compensation'

within the meaning of the Employees Compensation Act as

provided under Section 13 of the said Act. In the

circumstances, though it is the contention of the appellant

that certain amount of compensation is already paid to the

widow of the deceased, the same will not operate as a bar

for awarding compensation under Employees'

Compensation Act and the amount so paid if any, would

8 FA NO.4034 OF 2016

not be liable to be deducted from the compensation to be

computed under the provisions of the Employees

Compensation Act. It does not appear to me that the

Workmen's Compensation Commissioner has committed

any error in awarding compensation to the respondents

herein i.e. the original claimants. I see no merit in the

appeal so filed.

11. The claimants have also filed an appeal on the

ground that the Commissioner has not awarded penalty

against the original respondent. I am, however, not at all

convinced with the objection so raised by the claimants, in

view of the fact that the respondent had shown all its bona

fides in making ex gratia payment of sumptuous amount

to the claimants and in processing the family pension

papers of the claimants. As has come on record the

widow of the deceased had started receiving the amount of

family pension. I find substance in the submission made

by Smt. Deshpande, learned Counsel appearing for the

respondents that the respondents were bona fide believing

that when they had paid a sumptuous amount towards ex

gratia payment for untimely death of Ramkrishna, they

9 FA NO.4034 OF 2016

may not be liable to pay any more amount under the provisions

of the Employees Compensation Act.

12. The penalty clause is for the employers who

intentionally avoid to make the payment of compensation.

However, this is not the case in the present matter. I,

therefore, do not see any merit in the appeal so filed by the

original claimants. The Appeal preferred by the claimants being

devoid of substance deserves to be dismissed.

13. Hence, the following order:

ORDER

1. The First Appeal No.4034 of 2016 as well as First

Appeal Stamp No.27448 of 2015 are dismissed without any

order as to the costs.

2. The amount, if any, deposited in this Court, by the

appellant in F.A.No.4034 of 2016 be transmitted to the Court

of Commissioner for Employees Compensation and Judge,

Labour Court, Dhule, so as to facilitate the claimants to

withdraw the same.

3. Pending Civil Applications, if any, stand disposed of.

(P.R.BORA) JUDGE ...

AGP/4034-16fa