Som Dutt Builders Ltd. vs Smt. Phool Kumari, Wife Of Late ...
2004 Latest Caselaw 174 Del

JUDGMENT

Madan B. Lokur, J.

1. The Appellant is aggrieved by an order dated 9th November, 1993 passed by the Commissioner under the Workmen's Compensation Act, 1923 (for short the Act).

2. The husband of the Respondent was employed by the Appellant as a Special Welder on 19th July, 1988 to work in Amman (Jordan). While he was so working, on 7th February, 1990 at about 11.00 a.m., he felt unwell and was removed to hospital. He died at about 11.30 a.m. and as per the medical report, he had acute anteroseptal myocardia infarction. In other words, he died of a heart attack.

3. The Respondent made a claim for compensation and by the impugned order, the Commissioner awarded a sum of Rs.75,824/- payable within 30 days from the date of the order.

4. The issues framed for consideration by the Commissioner were as follows:-

''1. Whether the claim of the petitioner is not maintainable in view of the preliminary objections raised in the W/S.

2. Whether the deceased died due to an accident arising out of and in the course of his employment.

3. To what amount of compensation the petitioner is entitled.

4. Relief.''

5. Learned counsel for the Appellant neither challenged the quantum of compensation nor did he raise any technical issue. His main contention was that since the deceased died of a heart attack, it could not be said that it was an accident within the meaning of the Act. The death was due to natural causes for which the Appellant cannot be held responsible.

6. earned counsel for the Respondent brought to my notice various letters sent by the deceased to the Respondent, which have been mentioned in the order of the Commissioner. The submission based on these letters was that even though several facilities were agreed to be offered to the workman in Amman, in fact many of them were not available and the lack of adequate facilities caused great mental tension to the deceased. For example in a letter dated 10th March, 1989 Exhibit WW7, the deceased wrote as follows:-

'' I had thought the compay will be alright but here (at Jordan) its condition is very worse. They have not deposited their money since last 4 months in Delhi. We are being harassed by them, here their officers are big crooks. Since it is a private company we all are suffering.''

7. Similarly in Exhibit WW8 the deceased wrote as follows:-

''The company has got no proper postal arrangement. The do not pay/deposit the money in proper time. If a person asks for facilities, they send them India immediately. Hence no worker speaks anything against them.''

8. The submission of learned counsel for the Respondent is that the heart attack was caused by great mental tension that the deceased was undergoing because of a lack of adequate facilities. It is submitted that the deceased was a labourer, who had gone to a foreign country to earn some money and the very purpose of his visit was being frustrated by the Appellant. This would have naturally caused him a great deal of tension, more so since he was living away from his family in a foreign land.

9. What the word ''accident'' means was settled long ago in Fenton vs. J. Thorley and Co., [1903] A.C. 443. After reviewing the case law, the title of the Workmen's Compensation Act, 1897 and its preliminary sections, Lord Macnaghten concluded on page 448 of the Report that:

''... the expression ''accident'' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed.''

On page 453 of the Report, Lord Lindley said:

''The word ''accident'' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often use to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ''accident'' is also often used to denote both the cause and the effect, no a tempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness; but for legal purposes it is often important to distinguish careless from other unintended and unexpected events.''

10. The view expressed in Fenton was accepted for the purposes of the Workmen's Compensation Act, 1925. In McFarlane vs. Hutton Brothers (Stevedores) Ltd. 96 [1927] LJKB 357 the workman died as a result of a heart attack. While deciding his widow's claim for compensation, it was said on page 359 of the Report:

''The true fact appears to be this: That if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even although there is, at the moment, nothing unusual or particular that sets it up. That is the basis of the principle or authority that we have to apply.''

11. Supplementing the speech of Lord Macnaghten in Fenton and referring to some other cases, it was held on page 360 of the Report:

''... a man may suffer an accident and be entitled to recover in respect of the injury caused by the accident within the meaning of the Workmen' Compensation Act although the strain which sets up and puts in motion the cause of his death may arise in the ordinary exercise of his work which he is employed to do, and is not of a special or momentary character.''

12. Muscroft vs. Stewarts and Lloyds Ltd., 140 LT 64 was also a case in which a workman died of a heart attack. According to the medical evidence, Muscroft was not fit for work and he was liable to collapse or sudden death at any time. In his death, it was held that there was nothing unexpected. On page 67 of the Report it was said:

''Where you have got a case in which there is a known physical disability, one which is quite likely, waking or sleeping, morning or night, to cause the death of the man, the mere fact then that you find the man dead in working hours does not afford sufficient evidence to discharge the onus which lies upon the claimant.''

13.Muscroft was distinguished in Falmouth Docks and Engineering Company vs. Treloar, [1933] A.C. 481. In that case the deceased workman suffered from myocarditis, a heart disease but, it was said that, '' there is no evidence whatever that leads to the opinion that without the work that this man was engaged on he, none the less, would have died of this disease.''

14. In Partridge Jones and John Paton Limited vs. James, [1933] A.C. 501 the workman was suffering from a disease of the coronary arteries and died of angina pectoris while working. Reliance was placed, inter alia, on Clover, Clayton and Co. vs. Hughes, [1910] A.C. 246 and the following passage that occurs therein:

''In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment taken together, looking at it broadly?''

It was then said that with that as a guidance, ''... it seems to me that, when the learned county court judge has held that the result of the work was the failure of the blood supply resulting in angina pectoris, and that it was because he was engaged in doing his ordinary work in his diseased condition that this failure arose, and that the work and the disease together contributed to the death, it would be impossible to deny that this case is within the actual meaning of the words I have quoted.''

15. The view taken by the English courts has been followed in our country by several High Courts.

16. However, before considering the views expressed by the various High Courts, it is necessary to appreciate how a legislation like the Workmen's Compensation Act ought to be interpreted.

17. In Madras State Electricity Board vs. Ambazhathingal Ithachutti Umma, 1966 II LLJ 12 (Madras), it was stated at page 17 of the Report:

''... it is desirable and in accordance with the general rule that the Workmen's Compensation Act should be broadly and liberally construed, in order to effectuate their evident intent and purpose, in the application of the provisions which govern the nature and determination of the injuries for which compensation may be had. Courts should favor adoption of liberal construction of the words ''by accident arising out of and in the course of his employment.''''

18. Similarly, in Devshi Bhanji Khona vs. Mary Burno, 1985 II LLJ 70 (Kerala), the Division Bench held in paragraph 4 of the Report:

''The object behind the legislation being protection to the weaker section with a view to do social justice, the provisions of the Act have to be interpreted liberally, so that other things being equal, the leaning of the Court has to be towards the person for whose benefit the legislation is made. Bearing this principle in mind, the expression 'accident' found in sub-section (1) of S.3 of the Act has to be understood as meaning a mishap or untoward event, not expected or designed. In other words, the basic and indispensable ingredient of the accident is the unexpectation.''

19. In Devibehn Dudhabhai vs. Manager, Liberty Talkies and Anr., 1994 II LLJ 1207 (Gujarat), it was said in paragraph 22 of the Report:

''Again, it also may be noted that, in a review of the entire relevant case law on the point, it is desirable and it would be in accordance with the general rule that the provisions of the Workmen's Compensation Act should be broadly and liberally construed, so as to advance the evident intent and purpose and not to retard them. The court should, therefore, favor adoption of liberal and lenient construction of words ''by accident arising out of and in the course of his employment.''''

20. In State of Kerala vs. Ramaniamma 2000 I LLJ 129 (Kerala) the Division Bench observed in paragraph 4 of the Report:

''It is well settled that while interpreting the provisions contained in a beneficial statute, there is no room for taking a narrow view and the Court is entitled to be generous towards person on whom the benefit has been conferred.''

21. Recently, in Post Master General vs. Kaushalya Devi, 2003 I LLJ 515 (JandK), the workman died of a heart failure while returning home from duty. It was held in paragraph 7 of the Report:

''It is pertinent to point out that the Workmen's Compensation Act, 1923 is a piece of social security legislation and it is generally accepted that the various provisions of the Act ought to receive a liberal interpretation. Since the Act is a welfare legislation, made for the interest of the poor workmen, even if any particular provision of the Act is capable of two interpretations, that which is more favorable to the person for whose benefit the legislation has been made, should be adopted. ...... Suciberal interpretation would accomplish the humane and welfare purposes of this legislation, the provisions of which are truly responsive to the socio-economic needs recognized by our society and also by the Constitution. The rights of workmen deserve t be treated generously while applying the statutory provisions.''

22. On the substantive issue before me, the leading case on the subject is Laxmibai Atmaram vs. Chairman and Trustees, Bombay Port Trust, . A watchman on duty complained of chest pain and later died. The medical evidence showed that he suffered from a heart disease and that the death was brought about by deceased being on his legs for a certain period of time and having to move about as a watchman. The question before the Division Bench was whether there was any causal connection between is death and his employment. In paragraph 5 of the Report, it was said:

''The authorities again are clear that if the workman died as a natural result of the disease from which he was suffering, then it could not be said that his death was caused out of his employment. The authorities also have gone to this length that if a workman is suffering from a particular disease and as a result of wear and tear of his employment he dies of that disease, no liability would be fixed upon the employer. But it is equally clearly established that if the employment is a contributory cause or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased.''

Later in paragraph 10 of the Report it was observed:

''...where we have a case where death is due solely to a disease from which the workman is suffering and his employment has not been in any way a contributory cause, and if death is brought about by what might be called mere wear and tear, then it may be aid that the death did not arise out of the employment of the workman. But where the death is due to a strain caused while the workman is doing the work of his employer, and if it is established that that strain, however ordinary, accelerated the death r aggravated the condition of the workman, then the death could be said to have resulted out of the employment of the deceased.''

23. In Bai Shakri vs. New Maneckchowk Mills, 1961 I LLJ 585 (Gujarat) the existing case law was discussed and it was said at page 591 of the Report:

''The principles which emerge from these decisions are:

(1) There must be a causal connation between the injury and the accident and the accident and the work done in the course of employment.

(2) The onus is upon the applicant to show that it was the work and the resulting strain which contributed to or aggravated the injury.

(3) It is not necessary that the workman must be actually working at the time of his death or that death must occur while he is working or had just ceased work.

(4) Where the evidence is balanced, if the evidence shows a greater probability which satisfies a reasonable man that the work contributed to the causing of the personal injury, it would be enough for the workman to succeed.''

24. Another important decision on this subject is Assam Railways and Trading Co. Ltd. vs. Saraswati Devi, AIR 1963 Assam 127. In this case, the Full Bench of the Assam High Court examined the facts of the case, namely, that the workman was proceeding hurriedly to the fan house from the boiler room. He was required to switch on the fan so that air could be supplied to the miners working inside a mine of the colliery. On the way, the workman fell down, let out a cry and began complaining of pain and hard breathing. He expired soon after in hospital. There was no medical evidence available about the nature of the injury but applying the principle of res ipsa loquitur, the majority was of the view that he died of heart failure. After examining the case l w, it was held in paragraph 16 of the Report as follows:

''It is recognised that if in the course of a person's employment, and when he was actually in the performance of his duty, he dies of heart-failure, the failure of the heart in such circumstances is itself regarded as an accident.''

It was further stated in the same paragraph that:

''It is thus clear that even if the deceased can be said to have sustained death on account of heart failure which resulted from the fall he had in the performance of his duty, the answer is obvious, namely, that the accident and the death arose out of and occurred in the course of the performance of his duties of the employment.''

25. In Madras State Electricity Board the workman suffered an injury and died two days later in hospital. The medical evidence showed that he had a heart disease and died as a result of heart failure. After discussing the law in England, it was held, on page 15 of the Report that:

''The principle in heart cases seems to be that, if death or disability is due to heart attack which resulted from the exertion of the employee in the performance of the duties of his employment, compensation should be awarded. If death of an employee is brought about by an injury due to some mishap, or accident, happening during the course, of his employment, the fact that deceased has a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. The fact that the injury and the pre-existing disease combined to produce the disability does not prevent the injury being compassable in nature and it is not necessary to prove that the injury accelerated or aggravated the disease or that the accident complained of was a contributory cause to the injury. If the accidental injury suffered in the course of his employment is the proximate cause of the employee's death, the previous physical condition is unimportant.''

26. Amubibi vs. Nagri Mills Co. Ltd., 1977 II LLJ 510 (Gujrat) was a case in which the deceased while on duty was found lying unconscious in a passage. He was removed from there. On examination by the medical officer, he was found to be dead. Later the cause of death was determined as heart failure. In paragraph 5 of the Report it was held that the words ''injury'' and ''accident'' occurring in Section 3 of the Act should not be given a narrow and constricted meaning. It was said:

''''Accident'' generally must be understood as something unforeseen, uncomprehended or that which could not have been foreseen or comprehended ''injury'' must be understood to mean that which imperils life or causes pain. Even where an employee is suffering from a disease and if employment causes acceleration of the disease either by strain or fatigue incidental to employment, employer would nonetheless be liable for compensation. This again is well-established by a catena of decisions.''

27. In Sri Jayaram Motor Service vs. Pitchammal, 1982 II LLJ 149 (Madras) a night watchman died of a heart attack about one and a half hours after his work was over. It was held that is death was an accident in as much as it occurred in an unexpected manner and the same could not have been foreseen by anybody. It was then held in paragraph 14 of the Report:

''The next question to be considered is whether this heart failure could have been caused as a result of stress and strain received by him during the course of his work. It is the evidence of R.W. 1, that he attended his duty as a night-watchman during the previous night and that he worked throughout the night barring a small interval till 6 A.M., on 13th June, 1972. The duty as a night-watchman throughout the night without sleep will involve strain to the heart and the death in this case had occurred immediately after 1 1/2 hours from the cessation of duty. The heart failure must have occurred only as a result of strain which the deceased workman had undergone by keeping awake during the entire night in the course of his duty.''

Thereafter, it was held in paragraph 10 of the Report:

''Leaving aside any technical consideration, common course of human conduct or commonsense knowledge tells us that coronary insufficiency is generally the consequence of strain, extra work, fatigue. ... In any event, if strain of work causes insufficiency that strain itself would be cause of death and it would be personal injury suffered by an employee in course of his employment.''

28. Director (TandM) vs. Smt. D. Buchitalli, 1989 I LLJ 259 (Orissa) was a case in which the deceased workman while coming out of the factory after attending to his duties, fell down at the main gate. He was removed to a dispensary where he was declared dead. He was said to have been suffering from a heart disease. While interpreting Section 3 of the Act, it was held in paragraph 7 of the Report:

''In the present case, no doubt, the evidence is that the deceased had a heart disease earlier, but on the fateful day, as the evidence disclose, the deceased worked for four hours inside the factory premises and while he was coming out of the factory, h profusely sweated and by the time he was taken to the hospital, he was found dead. The stress and strain of the four hours of work the deceased had must be taken to be an accelerating factor in giving the final blow on account of which the deceased died ...... The aforesaid evidence leads to the only irresistible conclusion that the deceased died of heart failure which had resulted on account of the severe stress and strain inside the factory premises and, therefore, the provisions of S. 3(1) must be hold to be attracted in the present case.''

29. In United India Insurance Co. vs. C.S. Gopalakrishnan, 1989 II LLJ 30 (Kerala) the conductor of a bus died of a heart attack, while sleeping in the bus. The point pressed by learned counsel for the Appellant was that the deceased would have died even if he was not in the course of his employment and so the death did not arise during the course of employment. Negative the submission, the Division Bench held in paragraph 22 of the Report:

''Taking the evidence adduced in this case and the circumstances involved in the case, we feel that it has been established in the case that there was a casual connection between the death of the deceased and the work done in the course of his employment. We are of the opinion that from the evidence it is possible to infer that the strain of the work contributed to the fatal accident. Though the workman died due to heart failure, we are certain that it is not necessary that the workman was actually working at the time of his death and that the death must occur while he was working or had just ceased to work. Further, we find that the evidence shows a great probability which satisfies in a reasonable manner that the strenuous work contributed to the fatal accident. This finding of the Commissioner is not unreasonable which requires interference by this Court.''

30. Zubeda Bano vs. Maharashtra SRTC, 1991 I LLJ 66 (Bombay) also concerned a driver of a bus. In this case, the driver was found lying unconscious on its bonnet and steering wheel. The hospital where he was taken declared him dead due to a sudden heart attack. After an analysis of the case law, the Division Bench held in paragraph 9 of the Report:

''Legal position thus seems to have been settled down to this: Heart injury when brought about by a strain due to the work in the employment (and not by natural wear and tear of employment) is compassable though pre-existing condition may have been the co tributary element and this is irrespective of the percentage of the part played by either of them viz., the work and the condition.''

31. In National Insurance Co. Ltd. vs. Balawwa, 1994 I LLJ 433 (Karnataka) a coolie whose job was to unload stones, died of a heart attack while on duty. The contention of the insurance company was that he died only due to a heart attack and not due to any injury sustained by accident. Rejecting the contention, in paragraph 21 of the Report, the Division Bench held:

''In the present case, the deceased who was having some heart problem, was engaged in the strenuous job of loading and unloading stones. This work must necessarily have adversely affected his heart condition resulting in heart-attack. This is a reasonable inference that could be drawn from the circumstances under which the deceased suffered heart-attack. There is a nexus between his employment and the cause of his death. As such it is to be held that the death has occurred on account of his employment.''

32. Thengackal Estate vs. Reethammal, 1996 II LLJ 511 (Kerala) was an interesting case in which a gardener, while working on the estate, died of a heart failure. On the basis of the evidence led, the Division Bench held that but for the strain due to the work he was doing, the unexpected death would not have occurred. In paragraph 9 of the Report, it was said:

''In the circumstances, it will only be reasonable to conclude that the strain even if it was a normal strain connected with the employment was the reason for the death. Even proceeding on the basis that Ramayya was suffering from chest ailment and was prone to heart attack, the circumstances in the case would clearly indicate that the strain due to the work he was doing was the cause which accelerated his death due to heart attack. As such, in our view, the circumstances established in this case are sufficient to establish the required causal connection between the death and the employment.''

33. In National Mineral Development Corporation vs. Bindi Bai, 1998 I LLJ 85 (Madhya Pradesh) one of the questions considered was whether a heart attack can be said to be an accident within the meaning of the Act. In paragraph 9 of the Report it was held that:

''An 'accident' is an event which belongs to the realm of the unforeseen and the unexpected. It dons the colors of mishap, when the consequences are untoward. Therefore, anything which happens out of the ordinary would amount to accident. A person suffering from heart ailment may suffer cardiac arrest apparently without any physical stress or strain on his part. Such an event may not be called an accident because cardiac arrest may be assigned to natural causes resulting in illness, especially when there is lack of any datum as to the case which accelerated the cardiac arrest. However, when there is data before the Court to the effect that a person was put to stress and strain just before he suffered the cardiac arrest, in a situation in which, there way no prior complaint of pain in chest or uneasiness or any other symptom signifying an onset of heart attack, it can be held on the basis of preponderance of probabilities that the stress and strain might have accelerated the heart disease.''

34. In Shanmuga Mudaliar vs. Noorjahan, 2003 I LLJ 776 (Madras) the driver of a bus died of a heart attack while on duty. It was held in paragraph 7 of the Report that:

''There can be no dispute that the deceased died in the course of the employment since there was no occasion for him to be at the Tiruvannamalai bus stand unless he had been driving the bus. It is futile to contend otherwise. The evidence of the conductor of the same bus, who had seen the deceased fall and die at the very spot where the bus had stopped cannot be ignored. The objections to the claim based on non-filing of the FIR or post-mortem report deserve no consideration. The claimants had pleaded overstrain as having contributed to the death. The accident, the unlooked for mishap, had happened at a spot, where the deceased would not have been but for the fact he was discharging his duty as a driver. It is capable of being attributed to the strain, or inertly, inherent in the discharge of his duty. So the claim falls squarely within the Act.''

35. Finally, in Post Master General the workman died of a heart failure while returning home from duty. It was held in paragraph 7 of the Report:

''Undisputedly, the deceased workman has died due to heart failure. As is given in the evidence during inquiry, the deceased has died while returning from his duty. The heart failure, undoubtedly, is due to strain out of work and fatigue in doing the work and the proper and inescapable inference to draw would be that he died of accident out of and in the course of his employment.''

36. Our Supreme Court in Mackinnon Machenzie and Co. vs. Rita Fernandez, 1969 II LLJ 812 (SC) dealt with a case in which an employee on board a ship was hospitalized in the ship's hospital on 2nd December, 1961 for treatment of cardiac ailment. After 3rd December, 1961, there was no entry in the ship's logbook with regard to the condition of the employee till he died on 10th December, 1961 of cardiac failure. The Supreme Court held that it was for the employer to lead evidence about what the employee was doing during that period, the evidence being within its special knowledge. In the absence of any evidence having been led, an adverse inference was drawn against the employer to the effect that the deceased worked between 3rd and 10th December, 1961, as a result of which his illness was aggravated.

37. Referring to Clover, Clayton and Co., the Supreme Court held on page 814 of the Report:

''It is well-established that under this section there must be some causal connation between the death of the workman and his employment. If the workman dies as a natural result of the disease from which he was suffering or while suffering from a particlar disease he dies of that disease as a result of wear and tear of his employment, no liability would be fixed upon the employer. But if the employment is a contributory cause or has accelerated the death, or if the death was due not only to the disease but the disease coupled with the employment, then it could be said that the death arose out of the employment and the employer would be liable.

Even if a workman dies from a pre-existing disease, if the disease is aggravated or accelerated under circumstances which can be said to be accidental, his death results from injury by accident.''

38. Applying the law laid down by various decisions to the facts of the present case, it is quite clear that since there is no evidence of any prior history of any heart ailment, the heart attack suffered by the deceased must be held to be an accident. As summing for the sake of argument that the deceased did have a heart related problem, it must be held on the basis of the evidence on record referable to his anxiety and tension, that his death was caused by or at least aggravated by the tension that he was undergoing. Learned counsel for the Appellant advanced no argument, and I think rightly, that the death was in the course of his employment or arising out of his employment. As such, it is not necessary to go into that aspect of the case, or to deal wit that line of cases.

39. Learned counsel for the Appellant relied on The Divisional Controller vs. Bai Jiviben Arjan, 1981 ACJ 188 (Gujrat) to contend that the law requires that the deceased must be a workman; he should have suffered an accident and that the accident arose out of or during the course of his employment. There is no quarrel with the analysis given by learned counsel. The facts of the case as discussed above leave no manner of doubt that all the three ingredients referred to by learned counsel are present in this case.

40. Under the circumstances, no ground has been made out by learned counsel for the Appellant for interfering with the order of the Commissioner.

41. Learned counsel for the claimant pressed two of her cross objections, namely, her claim for interest on the compensation awarded and for penalty under the provisions of Section 4A of the Act.

42. In so far as the claim for interest is concerned, it is no doubt justified. The death occurred as far back as in February 1990. Despite a claim having been made by the Respondent, no payment was made to her. The first time that any amount was deposited by the Appellant was when this Court passed an order on 16th December 1993 directing the Appellant to deposit in the Registry of this Court a sum of Rs.75,824/-. In other words, the claimant did not get any financial assistance from the Appellant for mere than three years. There is no attempt on the part of the Appellant to explain this delay. Consequently, in terms of Section 4A(3)(a) of the Act, the Appellant is liable to pay interest to the Respondent at 12% per annum on the compensation amount of Rs. 75,284/- from the date of filing the claim petition, that is, 2nd April, 1990 till the date of compliance with the orders of this Court, that is, 16th December, 1993.

43. In so far as the claim for penalty is concerned, the proviso to Section 4A(3)(b) of the Act requires a reasonable opportunity being granted to the employer to show cause why a penalty should not be levied. This does not mean that a formal show cause should notice needs to be issued to the employer. The Act, being a beneficent legislation, has to be liberally yet pragmatically construed. Consequently, it is enough if the employer is made aware, during the course of proceedings before the Commissioner, that penalty can and may be levied on the facts of the case. This can be done, if necessary, by framing an issue. Unfortunately, there was no application of mind by the Commissioner to the question whether or not any penalty should be levied on the Appellant. I say this because the Commissioner has given no finding in this regard. Therefore, in the absence of the Appellant having been put to notice during any part of the proceedings that it may have to pay some penalty, it is not possible to accede to the prayer of learned counsel for the Respondent for imposing a penalty on the Appellant at the first appellate stage.

44. The result of the discussion is that the appeal is dismissed. The Appellant will pay to the Respondent costs of Rs.10,000/-. The cross objections of the Respondent are partly allowed. The Respondent will be entitled to interest on the compensation awarded, as indicated above. The Appellant will not be liable for any penalty under the provisions of Section 4A of the Act. The amount lying deposited in the Registry of this Court be released to the Respondent along with any interest that may have accrued thereon.