Calcutta High Court (Appellete Side)
Alloy Steels Plant vs Sri Pijush Majumdar on 14 September, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Ajay Kumar Gupta
FMAT 157 of 2023
With
CAN 1 of 2023
Alloy Steels Plant
Vs.
Sri Pijush Majumdar
For the Appellant : Mrs. Lakshmi Kanta Pal, Adv.
Heard on : 21.08.2023
Judgment on : 14.09.2023
Ajay Kumar Gupta, J:
1. The instant First Miscellaneous Appeal has been filed under
Section 30 of the Employee's Compensation Act, 1923 against the
2
judgment and award dated 30th January, 2023 passed by the
Commissioner, Employees' Compensation, Durgapur in Claim Case No. 3
of 2018, thereby the commissioner awarded a compensation to the tune of
Rs. 2, 90,520/- to the respondent/employee together with simple interest
at the rate of 12% per annum from the date of accident i.e. 04.11.2014 till
the date of actual payment thereof. Appellant has deposited total awarded
amount of Rs. 5,83,945/- comprising of the principal awarded amount of
Rs. 2,90,520/- and amounting to Rs. 2,93,425/- towards interest @ 12%
p.a. from the date of accident i.e. on 04.11.2014 till 03.04.2023 with the
office of Commissioner, Employees' Compensation, Durgapur before filing
this appeal.
2. Sans otiose details, the case of the appellant is that the respondent
being the employee of the appellant had filed a compensation case under
the Employee's Compensation Act, 1923 (hereinafter referred to as "the
Said Act, 1923") to the effect that on 04.11.2014 at around 8.30 a.m. he
met with an accident as a result, he sustained severe injures all over his
body arising out of and in course of his employment. After the accident, he
was removed to ASP Health Organisation but due to seriousness of his
injuries, he was referred to DSP Main Hospital, Durgapur wherein he was
treated on and from 04.11.2014 to 18.11.2014 as indoor patient. He was
further referred to Peerless Hospital, Kolkata for his better treatment,
wherein he was further treated as indoor patient till 23.12.2014.
3. The appellant/employer contested the case by filing written
statement wherein it was admitted that the respondent was an employee
of appellant's Alloy steels plant on the date of the accident. However, the
appellant denied and disputed all other averments made by the
respondent. Appellant had incurred a huge medical expense for his
treatment. Apart from that, the appellant had paid wages for entire period
of his absence caused due to the accident till his superannuation in the
month of January 2015 without any deduction as such he did not suffer
any loss of his earning. Accordingly, the appellant is not liable to pay any
compensation under the Said Act, 1923.
4. It is further averred that the claim application was filed beyond the
statutory period of limitation of two years from the date of accident as
enshrined in the said Act, 1923. However, the Commissioner without
applying his judicious and justifiable mind simply condoned the delay on
the ground that the Act is beneficial piece of legislation. No sufficient
cause/ reasons cited by the respondent in an application for condonation
of delay that he was prevented by sufficient cause in preferring the claim
application within statutory period of limitation. The issue of limitation
has been decided by the Commissioner in favour of the respondent along
with other issues at the time of final adjudication of claim application is
not at all permissible in the eye of law.
5. Learned Counsel appearing on behalf of the appellant vehemently
argued that all medical expenses for his treatment was borne by the
appellant though there was no fault on the part of the appellant/employer
but the Commissioner has imposed penalty of simple interest of 12% per
annum on the awarded amount on and from the date of accident i.e.
04.11.2014 till the date of actual payment thereof.
6. It is further submitted that the respondent further failed to
establish the accident which had occurred while performing his duty.
Actually, he met with an accident due to his own fault while riding motor
cycle at a place far away from his place of employment so it cannot be said
that the accident arose out of and in course of employment. Appellant
being the employer has paid all his wages till his superannuation
including the period in which he was absent for his treatment in the
hospitals so he is not entitled to get any further compensation. Judgment
and Award passed by the Commissioner, Employees' Compensation,
Durgapur is absolutely the result of non-application of mind. Accordingly,
the impugned judgment and order passed on 30.01.2023 palpably illegal
and perverse. Hence, it is liable to be set aside.
7. Having heard the argument made extensively on behalf of the
appellant and on perusal of the record, it appears the respondent has
examined himself as P.W. 1, an employee of S.D. Hospital, Durgapur, Mr.
Sudipta Laha as P.W. 2 to establish his case for awarding compensation
on the ground of injuries sustained in course of employment and finally
suffered permanent partial disability to the extent of 50% and exhibited
number of documents i.e. Exhibit Nos. 1 to 12. The details of the
documents are reflected in the judgment and award dated 30th January,
2023. On the other hand, the appellant/employer examined its senior
manager as O.P.W. 1 and produced documents marked as Exhibits A, B
and C.
8. It was the specific case of the respondent/employee before the
Commissioner that he met with an accident on the date on 04.11.2014
inside its plant near Nirman Bhavan while he was going to Forge Shop at
around 8.30 a.m. in his motorcycle and at that point of time he was
dashed by a car while overtaking from the left side as a result he
sustained injuries. He suffered permanent partial disability to the extent
of 50% arising out of and in the course of his employment but appellant
did not pay any compensation under the said Act, 1923 despite of several
oral and written requests.
9. The Commissioner, Employees' Compensation, Durgapur has
finally decided the claim case in favour of the respondent after considering
and assessing the evidence, both oral and documentary. However, learned
advocate for the appellant raised the following substantial questions of law
being seriously aggrieved and dissatisfied with the impugned judgment
and award dated 30th January, 2023: -
1. Whether the Commissioner erred in law in holding
that appellant is liable to pay compensation under
Section 3(1) of the Said Act, 1923 though the alleged
accident cannot be said to be an accident arising out of
and in course of his employment?
2. Whether the Commissioner erred in law in deciding
an application for condonation of delay without applying
his mind along with other issues at the time of final
adjudication of the claim application rather it should
have rejected separately at the initial stage of proceedings
as the respondent fails to satisfy sufficient cause for
delay in filing appeal in time?
3. Whether the Commissioner, Employee's
Compensation Act, 1923 erred in law in imposing penalty
of simple interest of 12% on the awarded compensation
amount from the date of accident i.e. 04.11.2014 till the
date of actual payment thereof even the appellant
incurred a huge medical expense for his treatment and
paid wages for the entire period of his absence till his
superannuation in the month of January 2015 without
any deduction?
10. We would like to indicate hereinbelow the relevant provisions as
applicable in the instant appeal. Those Sections are 3, 4, 4A, 10 and 30 of
the Said Act, 1923 for proper and effective adjudication.
11. Section 3 of the said act provides Employer's liability for
compensation. -- (1) If personal injury is caused to an [employee] by
accident arising out of and in the course of his employment, his employer
shall be liable to pay compensation in accordance with the provisions of
this Chapter:
Provided that the employer shall not be so liable--
(a) in respect of any injury which does not result in the total or partial
disablement of the [employee] for a period exceeding [three] days;
(b) in respect of any [injury, not resulting in death [or permanent total
disablement], caused by] an accident which is directly attributable to--
(i) the [employee] having been at the time thereof under the
influence of drink or drugs, or
(ii) the wilful disobedience of the [employee] to an order expressly
given, or to a rule expressly framed, for the purpose of securing the
safety of employees, or
(iii) the wilful removal or disregard by the [employee] of any safety
guard or other device which he knew to have been provided for the
purpose of securing the safety of [employees].
(2) -------------------------------------------.
(a) ----------------------------------.
(b) ----------------------------------.
(2A) ------------------------------------------.
(3) -------------------------------------------.
(4) -------------------------------------------.
(5) -----------------------------------------.
(a) -------------------------------; or
(b) -----------------------------------.
12. From bare reading of aforesaid provision, it contemplates if
personal injuries caused to an employee by an accident arising out of and
in course of his employment, the employer shall not be liable to pay
compensation only under the following conditions: -
Firstly, injury does not cause the entire or partial
disablement of an employee for a period exceeding three
days;
Secondly, employee should not under the influence or
any sort of drugs or drink while accident.
Thirdly, employee wilfully disagrees or disobeys an order
framed for their safety purpose.
Fourthly, the wilful denial or non-usage of any kind of
safety measures equipment duly provided to them for
securing safety during employment.
13. It is not disputed that the respondent/employee sustained injuries
due to accident occurred on 04.11.2014 at 8.40 am inside its plant
premises near Nirman Bhawan while respondent was going towards the
Forge shop of the appellant. It is admitted fact that respondent had not
violated the aforesaid conditions as mentioned in Section 3 of the said Act,
1923 but the appellant's plea is that accident took place due to rash and
negligent riding of the motorcycle on the part of the respondent/employee.
However, respondent proved that the accident occurred in his morning
shift duty hour and on the date of accident he was working as Supervisor
II attached to Forge Shop of appellant's concern and he has no fault. In
addition, the O.P.W. 1, a Sr. Manager of the appellant's Alloy steels plant,
admitted during his cross-examination that the accident took place on
04.11.2014 at around 8.40 a.m. and the same was within his working
hour. It was further admitted that accident took place in their plant
premises. So, there is no scope to deny the accident which was occurred
on 04.11.2014 out of or in course of his employment.
14. The Employee's Compensation Act, 1923 has been enacted for
providing social security to the employees. It is imperative on the part of
employer to compensate to the employees incapacitated by accident
arising out of and in course of employment. Section 3 (1) of the Act
provides employer's liability to pay compensation in case of personal
injury to the employee caused by an accident arising out of and in course
of employment. From the material on record, it reveals that the O.P.W. 1
has admitted during his cross-examination that the accident took place on
04.11.2014 at around 8.40 a.m. and the same was within his working
hour. It was further admitted that accident took place in their plant
premises. Furthermore, the respondent/employee does not fall within the
exceptions of Section 3(1) (a) and (b) (i), (ii) and (iii). Therefore, the
application filed by the respondent before the Commissioner of the Said
Act is maintainable and Section 3(1) is very much applicable as the
accident occurred arising out of and in course of his employment without
touching any of the exceptions of Section 3(1) of the Said Act, 1923. Thus,
appellant is liable to pay compensation under the Said Act, 1923.
15. Now, the question arises what would be the actual compensation.
In this regard Section 4 provides the manner of calculation of the
Amount of compensation. -- (1) Subject to the provisions of this Act, the
amount of compensation shall be as follows, namely: --
(a) Where death results from the an amount equal to [fifty per
injury cent.] of the monthly wages of
the deceased [employee]
multiplied by the relevant
factor;
or
an amount of [one lakh and
twenty thousand rupees],
whichever is more;
(b) Where permanent total an amount equal to [sixty per
disablement results from the injury cent.] of the monthly wages of
the injured [employee]
multiplied by the relevant
factor;
or
an amount of [one lakh and
forty thousand rupees],
whichever is more:
Provided that the Central Government may, by notification in the Official
Gazette, from time to time, enhance the amount of compensation
mentioned in clauses (a) and (b);
Explanation I.--For the purposes of clause (a) and clause (b), "relevant
factor", in relation to a [employee] means the factor specified in the second
column of Schedule IV against the entry in the first column of that
Schedule specifying the number of years which are the same as the
completed years of the age of the [employee] on his last birthday
immediately preceding the date on which the compensation fell due.
(c) where permanent partial (i) in the case of an injury
disablement results from the specified in Part II of Schedule
injury. I, such percentage of the
compensation which would
have been payable in the case
of permanent total disablement
as is specified therein as being
the percentage of the loss of
earning capacity caused by
that injury, and
(ii) in the case of an injury not
specified in Schedule I, such
percentage of the compensation
payable in the case of
permanent total disablement
as is proportionate to the loss
of earning capacity (as
assessed by the qualified
medical practitioner)
permanently caused by the
injury.
Explanation I.--Where more injuries than one are caused by the same
accident, the amount of compensation payable under this head shall be
aggregated but not so in any case as to exceed the amount which would
have been payable if permanent total disablement had resulted from the
injuries.
Explanation II. --In assessing the loss of earning capacity for the purposes
of sub-clause (ii), the qualified medical practitioner shall have due regard
to the percentages of loss of earning capacity in relation to different
injuries specified in Schedule I;
(d) where temporary a half-monthly payment of the
disablement, whether total or sum equivalent to twenty-five
partial results from the injury per cent. of monthly wages of
the 1 [employee], to be paid in
accordance with the provisions
of sub-section (2).
(1A) -------------------------------.
(1B) -------------------------------.
(2) -----------------------------------.
(i) ----------------------------.
(ii) ---------------------------.
Provided that--
(a) --------------------------; and
(b) -------------------------.
Explanation. --Any payment or allowance which the [employee] has
received from the employer towards his medical treatment shall not be
deemed to be a payment or allowance received by him by way of
compensation within the meaning of clause (a) of the proviso.
(2A) The employee shall be reimbursed the actual medical expenditure
incurred by him for treatment of injuries caused during the course of
employment.]
(3) ----------------------------------.
(4) ---------------------------------.
16. Section 4 (1) (c) is applicable in this case, the Commissioner
awarded a sum of Rs 2,90,520/- as a compensation after specifically
considering the age 58-59 at the time of accident, ceiling of monthly wages
of an employee @ Rs. 8,000/- per month for the purpose of the said Act,
1923 in view of the Central Government Notification dated 31st May,
2010, multiplier 121.05 as per the Schedule IV of the said Act, 1923,
permanent partial disability to the extent of 50% on the basis of certificate
issued by Medical Board after examining the respondent and component
60% in case where permanent partial disablement results from the injury.
So, there is no infirmity or error found in calculation of compensation
amount by the Ld. Commissioner.
17. Now, another question arises before this Court that what would be
the penalty in the event of default of payment of compensation by the
employer. We would like to refer Section 4A of the said Act, 1923 to arrive
in a correct conclusion.
Section 4A of the said act provides that 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 a reasonable 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.
(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.
18. Here, the Commissioner imposed simple interest @ 12% on an
awarded amount of Rs. 2,90,520/- as the appellant did not pay whole or
provisional payment of compensation based on the extent of liability
rather appellant defaulted in paying the compensation under this Act
within one month from the date it fell due. Thus, such power is vested
upon the Commissioner to direct to pay interest under the provision of
Section 4A (3) (a) of the said Act, 1923. Thus, allowing simple interest on
an awarded compensation is well within the statute deserves no
interference.
19. Section 10 of the said Act, 1923 provides Notice and claim. --
(1) No claim for compensation shall be entertained by a Commissioner
unless notice of the accident has been given in the manner
hereinafter provided as soon as practicable after the happening
thereof and unless the claim is preferred before him within [two
years] of the occurrence of the accident or, in case of death, within
[two years] from the date of death:]
Provided that---------------------------:
Provided further that-----------------:
Provided further that------------------
[Provided further that the want of or any defect or irregularity in a notice
shall not be a bar to the [entertainment of a claim]--
(a) --------------------------------------, or
(b) ---------------------------------------:
Provided further, ----------------------
(2) ----------------------------------------
(3) ----------------------------------------
(4) ----------------------------------------
20. The appellant/employer preferred this appeal under Section 30 of
the Said Act, 1923 challenging the award of compensation awarded by the
Commissioner on the ground that the application for compensation was
filed beyond the statutory period of limitation of two years from the date of
accident as contemplated under Section 10 of the said Act, 1923. So far as
the ground raised by the appellant regarding delay in filing the application
is concerned, admittedly, the claim application has been filed beyond the
period of limitation i.e. one year and three months later but the fact
remains that the claim application filed along with application for
condonation of delay praying for condonation of delay on the ground that
in spite of several requests made by way of oral and written
communications, appellant did not pay any heed to pay compensation
though it was admitted that the accident was arising in course of the
employment. The Commissioner condoned the delay as the employee
should not be suffered only on technical ground. No fault can be
attributed to the respondent for delay in approaching to the
Commissioner, since he has taken all possible steps on his part. In such a
situation, the poor or economically backward employee, who suffered
permanent partial disability, should not have been allowed to suffer
further on the ground of delay. He has explained sufficiently the ground of
delay. The Commissioner should have decided the issue of limitation at
initial stage. However, dealt with at the time of final adjudication of the
claim application along with other issues would definitely not fatal the
claim application as the case falls under the said Act, 1923 is enacted for
the benefits of the employees. The Said Act is a social and beneficial piece
of legislation and its provisions and amendments thereto must be
interpreted in a manner so as to no one deprives the employees from the
benefits of the legislation. The object of enacting the Act was ameliorated
the hardship of economically poor employees, who are exposed to risk
while working, for compensating them with pecuniary benefits. The
Commissioner has empowered to condone the delay in not preferring the
claim application beyond the statutory period of limitation when he
satisfies that the delay is due to prevent by sufficient cause. There cannot
be any straight jacket formula for allowing condonation of delay. Keeping
in mind the beneficial nature of legislation same should be dealt with
liberal approach and sympathetically view and required to be focused on
the merit and substantial justice. The same thing has been done by the
Commissioner for condonation of delay for the interest of justice at the
time of final disposal of the claim application, which is also not at all in
our view perverse from any corner.
21. Section 30 provides for provision of appeals. -- (1) An appeal
shall lie to the High Court from the following orders of a Commissioner,
namely: --
(a) an order awarding as compensation a lump sum whether by way of
redemption of a half-monthly payment or otherwise or disallowing a claim
in full or in part for a lump sum;
(aa) an order awarding interest or penalty under section 4A;]
(b) an order refusing to allow redemption of a half-monthly payment;
(c) an order providing for the distribution of compensation among the
dependants of a deceased 6 [employee], or disallowing any claim of a
person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an
indemnity under the provisions of sub-section (2) of section 12; or
(e) an order refusing to register a memorandum of agreement or
registering the same or providing for the registration of the same subject
to conditions:
Provided that no appeal shall lie against any order unless a
substantial question of law is involved in the appeal and, in the case
of an order other than an order such as is referred to in clause (b),
unless the amount in dispute in the appeal is not less than [ten
thousand rupees or such higher amount as the Central Government
may, by notification in the Official Gazette, specify]:
Provided, further, that no appeal shall lie in any case in which the parties
have agreed to abide by the decision of the Commissioner, or in which the
order of the Commissioner gives effect to an agreement come to by the
parties:
Provided further that no appeal by an employer under clause (a) shall lie
unless the memorandum of appeal is accompanied by a certificate by the
Commissioner to the effect that the appellant has deposited with him the
amount payable under the order appealed against.
(2) The period of limitation for an appeal under this section shall be
sixty days.
(3) The provisions of section 5 of [the Indian Limitation Act, 1963 (36
of 1963)] shall be applicable to appeals under this section.
22. Therefore, it is crystal clear that no appeal shall lie against any
order unless a substantial question of law is involved. Appellant/employer
has tried his level best to convince this appellate Court to come to
conclusion that there are substantial questions of law involved but we are
unable to persuade ourselves with the argument of the Ld. Advocate of the
appellant.
In the light of aforesaid discussion, the appellant miserably fails to
prove the substantial question of law as raised. Accordingly, judgment and
award passed by the Commissioner does not deserve any interference by
this appellate Court. Therefore, appeal is liable to be dismissed. Judgment
and Award dated 30th January, 2023 is hereby affirmed.
23. Under the above circumstances, the instant appeal stands
dismissed. No order as to costs.
24. Consequentially, application, being CAN 1 of 2023 is also stand
disposed of.
25. The Commissioner, Employees' Compensation, Durgapur shall
release the amount in favour of the respondent/employee upon proper
identification and subject to verification of the payment of deficit Court
fees, if any, in the mode and manner stipulated in the Judgment and
Award of Commissioner, Employees' Compensation, Durgapur within one
month from the date of communication of the Judgment and Order.
26. Department is directed to send down a copy of this judgment and
award at once to the commissioner Employee's compensation, Durgapur
for information and necessary compliance.
27. All parties shall act on a server copy of the judgment and order
uploaded from the official website of High Court at Calcutta.
28. Photostat certified copy of this judgment and award, if applied for,
be given to the parties on priority basis on compliance of all formalities.
I Agree.
(Harish Tandon, J.) (Ajay Kumar Gupta, J.)
P. Adak (P.A.)
