Bombay High Court
Msrtc,Thr The Divisionl ... vs Nilkanth Mukundrao Mohitkar on 25 November, 2021
Bench: V.M. Deshpande
1 fa1298.08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.1298/2008
Maharashtra State Road Transport
Corporation, through Divisional
Controller, Yavatmal Division,
Arni Road, Yavatmal. .....APPELLANT
...V E R S U S...
Nilkanth Mukundrao Mohitkar,
Aged about 49 years, Occ. Nil,
r/o Gurunagar, Ward No.5,
Near Janta High School, Wani,
Dist. Yavatmal. ...RESPONDENT
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Mr. A. S. Mehadia, Advocate for appellant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 25.11.2021.
ORAL JUDGMENT
1. This appeal is filed by the Maharashtra State Road
Transport Corporation (For short "MSRTC"), under section 30 of
the Workmen's Compensation Act, 1923 (For short the "Act"),
challenging judgment and award passed by Commissioner under
Workmen's Compensation Act, Yavatmal dated 20.06.2008 in
Workmen's Compensation Case No.5/2006 filed by respondent. By
2 fa1298.08.odt
the impugned award, learned Commissioner allowed the
application filed by the respondent herein claiming compensation
from the appellant.
2. By the impugned award the appellant was directed to
pay an amount of Rs.2,14,108/- together with interest at the rate
of 12% per annum from the date of application till realization as
per Section 4 and 4A of the Act. The appellant was directed to
pay further amount of Rs.1,07,094/- as 50% penalty on amount of
compensation as per the provisions of Section 4A (3-b) of the Act.
3. This appeal was admitted by this Court on 17.10.2008
on the following substantial question of law:
"As to whether penalty in the instant case could have been
imposed in view of the fact that the appellants proposed to
take a disciplinary action against the respondent driver of
the appellant"
4. Heard Mr. Mehadia, learned counsel for the appellant.
Learned counsel for respondent chose not to appear and
participate in the hearing when the appeal was called for hearing.
The facts which are not in dispute are as under:
3 fa1298.08.odt
(i) Appellant was employer of respondent and
respondent was working as driver from 20.05.1987.
(ii) Respondent was driving S.T. bus having registration
No. MH-12/UA-9962 on 07.07.2001 on Yavatmal to
Chandrapur rout.
(iii) Near Parsheoni fata, accident took place i.e. there
was head on collusion between S.T. bus driven by the appellant
and one truck, resulting into respondent suffering various
injuries.
(iv) Respondent was moved to Government Hospital,
Wani, thereafter to Government Hopsital, Chandrapur and from
there he was shifted to Suretech Hospital, Nagpur.
(v) At Suretech Hospital, respondent was operated on 2-
3 occasions. He was operated for injuries caused to him on
right leg and rod was inserted in his leg. He remained as an
indoor patient for 2 ½ months. Thereafter, though he was
discharged, his treatment continued.
(vi) An offence was registered against the respondent in
respect of accident and case was registered as Criminal Case
No. 1198/2001 under the relevant penal provisions.
4 fa1298.08.odt
(vii) Respondent was acquitted from the said criminal
case by the learned Judicial Magistrate First Class, Wani and the
said order of acquittal attained finality.
(viii) Respondent was given disability certificate and he
became permanently disable to the extent of 50%.
(ix) Medical Officer of Shri Vasantral Naik Government
Medical Hospital, Yavatmal issued certificate declaring him
unfit for driving work. Therefore, he lost his job as driver and
ultimately he was discharged from duty by appellant on
06.04.2004.
5. In the aforesaid admitted background, the respondent
approached to the Court under the Workmen's Compensation
presided over by Judge, Labour Court, Yavatmal by filing W.C.A.
No.5/2006. The application was contested by appellant by filing
written statement and main plank of resistance to the application
on behalf of the appellant was that accident occurred due to rash
and negligent driving of the respondent. Parties entered into the
witness box. Learned Commissioner formulated following issues.
5 fa1298.08.odt
Sr.No ISSUES FINDINGS
1. Does applicant proved that he Affirmative
was working as a driver on
S.T. Bus No.MH-12/UA-9962
belonging to the non-applicant
and he was getting Rs.7240/-
per month towards wages?
2. Does applicant proved that on Affirmative, so far as
07/07/2001 he mat with an permanent disablement is
accident out of and during the concerned, he sustained
course of employment and 50% disablement.
sustained permanent
disablement?
3. Does applicant proved that on Affirmative.
the relevant date of the
accident, he was aged about 42
years?
4. Whether applicant is entitled Affirmative, he is entitled
to claim Rs.3,88,380/- towards compensation of
compensation, 50% penalty Rs.2,14,188/- with
and interest @18 p.a. from the interest @ 12% p.a. and
non-applicant as claimed? penalty of Rs.1,07,094/-
from non-applicant.
5. What order? As per final order
After appreciating the pleadings, documents and
evidence as brought on record by the parties, the impugned award
was passed.
6. According to Mr. Mehadia, there is an error apparent
on the part of learned Commissioner while granting compensation
in favour of the appellant inasmuch as the accident took place due
to the rash and negligent driving on the part of the respondent.
6 fa1298.08.odt
Therefore, he himself was responsible for the injuries caused to
him. He, therefore, prayed that appeal be allowed in terms of the
substantial question of law that was formulated.
7. In view of the admitted position as pointed out in the
preceding paragraphs, it is clear that criminal case was registered
against respondent under relevant provision of the IPC for causing
accident as it was the case of the prosecution that the respondent
was driving the vehicle negligently. Needless to mention, it is an
admitted position that respondent was acquitted from said
criminal case and charge. Mr. Mehadia, learned counsel, fairly
submitted that neither prosecution nor M.S.R.T.C. challenged said
order of acquittal. Resultantly, finding recorded by learned
Magistrate that the respondent was not driving the vehicle rashly
or negligently, has to be accepted.
8. Be that as it may, even in compensation proceedings,
issue of rash and negligent driving was not framed by the learned
Commissioner, though from the written statement it could have
been. However M.S.R.T.C did not file any application before
learned Commissioner for reframing or recasting the issues. In
7 fa1298.08.odt
that view of the matter, I am of the view that plea of rash and
negligent driving as put forth by the M.S.R.T.C. was abandoned.
9. It is an admitted position that due to accident,
respondent lost his job as a driver. Scope of appeal under Section
30 is limited only to the substantial question of law on which the
appeal was admitted.
10. In view of the fact that prior notice was already given
to the M.S.R.T.C. about the penalty to be imposed, in my view,
merely because disciplinary action was proposed against the
respondent that will not absolve the M.S.R.T.C. from paying
penalty, if amount of compensation is not paid during the
stipulated period.
11. There is no merit in the appeal. Hence, the appeal is
dismissed. Needless to mention, the respondent will be entitled to
withdraw the amount of compensation and penalty from the office
of the Workmen's Compensation, if it is not already withdrawn.
JUDGE
kahale
Digitally signed byYOGESH
ARVIND KAHALE
Signing Date:26.11.2021
16:54
