Himachal Pradesh High Court
Rajender Kumar vs Shyam Lal And Another on 9 March, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMP No. 2145 of 2021 in FAO No. 97 of 2015
with CMP(M) No. 781 of 2020
.
Decided on: March 9, 2021
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1. CMP No. 2145 of 2021 in FAO No. 97 of 2015
Rajender Kumar ..Appellant
Versus
Shyam Lal and another ..........Respondents
2. CMP(M) No. 781 of 2021
Oriental Insurance Company Limited ..Appellant
Versus
Rajinder Kumar and another ..........Respondents
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
_____________________________________________________________
CMP No. 2145 of 2021 in FAO No.
97 of 2015
For the appellant : Mr. Ashwani Pathak, Senior
Advocate with Mr. Sandeep
Sharma, Advocate.
For the respondents : None for respondent No.1.
Mr. Deepak Bhasin, Advocate, for
respondent No.2.
CMP(M) No. 781 of 2015
For the applicant : Mr. Manoj Kumar Chauhan,
Advocate.
For the respondents :
Mr. Ashwani Pathak, Senior
Advocate with Mr. Sandeep
Sharma, Advocate, for
respondent No.1.
None for respondent No.2.
_____________________________________________________________
Sandeep Sharma, Judge:
Whether the reporters of the local papers may be allowed to see the judgment?
CMP No. 2145 of 2021 in FAO No. 97 of 2015
By way of instant application, prayer has been made on
behalf of the applicant-Rajender Kumar for
.
clarification/modification of judgment dated 16.10.2019
rendered by this Court in FAO No. 97 of 2015.
2. Mr. Ashwani Pathak, learned Senior Advocate duly
assisted by Mr. Sandeep Sharma, Advocate, contends that
since no interest at the rate of 12% per annum on account of
delay in making payment in terms of S.4-A(3)(a) of the
Workmen's Compensation Act, was claimed by the applicant
nor the same was awarded by this Court, it has wrongly been
mentioned in para-34 of the judgment that learned
Commissioner below shall calculate the interest at the rate of
12% per annum, on account of delay in making payment in
terms of S.4-A(3)(a) of the Act ibid.
3. Mr. Deepak Bhasin, Advocate appearing for respondent
No.2-Insurance Company, while supporting the aforesaid
contention raised by applicant, submits that it is quite
apparent from the bare perusal of para-35 of judgment dated
16.10.2019 rendered in FAO No. 97 of 2015, that interest at
the rate of 12% per annum on account of delay in making
payment in terms of S.4-A(3)(a) was neither claimed by the
appellant nor was granted by this Court, however, in para-34,
this Court wrongly recorded that the interest at the rate of
12% per annum on account of delay in making payment in
terms of S.4A(3)(a) of the Act, would be calculated by learned
Commissioner below i.e. clause-5 of para-34.
.
4. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
the appellant Rajender Kumar filed a petition under Ss. 4, 15
and 22 of the Workmen's Compensation Act, in the court of
learned Employees' Compensation Commission, Mandi,
Himachal Pradesh, seeking therein compensation to the tune
of Rs.5,50,000/- on account of injuries suffered by him in an
accident on 4.7.2007. However, the fact remains that aforesaid
petition filed by the appellant was dismissed vide award dated
8.1.2015 passed by learned Commissioner below. Being
aggrieved and dissatisfied with the aforesaid order, appellant
Rajender Kumar preferred FAO No. 97 of 2015, which
ultimately came to be allowed on 16.10.2019 by this Court. If
the judgment dated 16.10.2019 passed by this Court,
especially para-35 thereof, is read in its entirety, Learned
Counsel appearing for the parties are right in contending that
neither any amount was claimed on account of delay in
making payment in terms of S.4A(3)(a) of the Act, nor the same
was granted by this Court, while passing judgment dated
16.10.2019, but, it appears that this Court, in para-34 of the
judgment, while prescribing the mode and manner of
calculating compensation, inadvertently directed learned
Commissioner below to calculate the interest at the rate of
12% per annum on account of delay in making payment in
.
terms of S.4A(3)(a) in clause 5 of para-34. Pursuant to passing
of aforesaid judgment, appellant-Rajender Kumar, filed
execution before learned Employees' Compensation
Commission, Mandi i.e. Execution Petition No. 25/2011 and
learned Commissioner below, vide order dated 7.11.2019,
proceeded to award compensation in the following manner:
""34. In the aforesaid background, now compensation determined
r as under:
1. Completed year of age on the 26 years
last birthday of the claimant
immediately proceeding the
date on which the
compensation tell due.
2. Relevant factor to calculate 215.28
compensation
3. Wages of workman Rs.2400/- (i.e. 60% of
Rs.4,000/-)
4. Compensation amount due 215.28x2400=5,16,672
5. Interest @ 12% p.a. on To be calculated by the
account of delay in making Commissioner below
the payment in terms of
Section 4-A(3)(a)
6. Interest @ 12% per annum On the total
compensation amount
from the date of filing of
claim petition till its
payment.
This court is now required to calculate the interest on
Rs.5,16,672/- @ 125 p.a. as reflected in point no. 5 of para 34 reproduced
above.
The aforesaid interest comes out to be Rs.7,58,475/-.
.
Therefore, the total compensation is Rs.5,16,672+ Rs.7,58,475
=Rs.12,75,147/-
The Insurance Company is also liable to pay interest @ 12% p.a. on
the total compensation amount from the date of filing of claim petition till
its payment (as per para-36 of the order passed by Hon'ble High Court of
H.P.).
The Insurance company is further liable to deposit the aforesaid
amount within a period of one month, as per order passed by the Hon'ble
High Court of H.P.
File after due completion be consigned to the records."
5. In the aforesaid background, appellant Rajender Kumar
has approached this Court seeking therein modification of
judgment dated 16.10.2019. Besides above, respondent No.2
(insurance company) has also filed an appeal against the order
dated 7.11.2019 passed by learned Commissioner below.
Since, it is quite apparent from the bare reading of judgment
sought to be modified that neither interest at the rate of 12%
on account of delay in making payment in terms of S.4A(3)(a)
of the Act was claimed by the appellant, nor the same was
intended to be granted by this Court, coupled with the fact
that both the parties i.e. appellant and respondent No.2 are in
agreement that no amount qua interest at the rate of 12% p.a.
on account of delay in making the payment in terms of Section
4-A(3)(a) is required to be awarded, prayer in the present
application for modification deserves to be allowed.
6. Consequently, present application is allowed. Judgment
.
dated 16.10.2019 passed in FAO No. 97 of 2015, is modified to
the extent that clause 5 of para-34 thereof, shall stand deleted.
Application stands disposed of.
7. In view of aforesaid modification, this Court deems it fit
to direct Employees' Compensation Commission, Mandi to
make fresh calculations. However, it is clarified that appellant
Rajender Kumar, shall be entitled to interest at the rate of 12%
per annum on the amount of compensation of Rs.5,16,672/-,
calculated in terms of clause 4 of the judgment passed by this
Court, which comes to Rs.7,58,475/- (total amount
Rs.12,75,147/-). Needful shall be done by learned
Commissioner below, within ten days. Learned Counsel
appearing for the parties undertake to supply a copy of this
judgment to learned Commissioner below, enabling it to do the
needful in terms of instant judgment, within the stipulated
period.
8. Since the amount stands deposited by insurance
company and no challenge, whatsoever, has been laid to
judgment dated 16.10.2019 in the superior court of law, there
seems to be no impediment in ordering release of amount in
favour of appellant Rajender Kumar, as such, learned
Commissioner below is directed to release the amount in
favour of the appellant Rajender Kumar, on his making a
formal application in this behalf. So also, the amount
.
deposited in excess by the insurance company shall be
released in its favour, on latter making a formal application for
the purpose.
CMP(M) No. 781 of 2021
9. By way of instant application, prayer has been made on
behalf of the applicant for condonation of delay in filing
accompanying appeal. Learned counsel for the appearing for
respondent No.1 states that he does not intend to file reply to
the application and shall have no objection, in case prayer
made therein is allowed.
10. Shri Sandeep Sharma, Advocate has filed power of
attorney on behalf of respondent No.1. Notice to respondent
No.2 stand issued for 23.4.2021 but learned counsel for the
applicant states that since no liability has been fastened on
non-applicant/respondent No.2, his presence is not required
in the instant proceedings, especially when appellant-
Insurance company has chosen not to lay any challenge to
award dated 16.10.2019 passed in FAO No. 97 of 2015 titled
Rajinder Kumar vs. Shyam Lal and another and in those
proceeding liability has been fastened upon the appellant-
Insurance company, as such, presence of respondent No.2 is
dispensed with. Notice issued to aforesaid respondent is
discharged.
11. Having heard learned counsel for the parties and
.
averments contained in the application, which is duly
supported by an affidavit, this court finds that the delay in
filing the appeal is neither intentional nor willful rather, owing
the lengthy administrative process, which was beyond the
control of the applicant, as such, delay of 127 days in filing the
accompanying appeal is condoned. Application stands
disposed of.
FAO No. of 2021
12. Be registered.
13. Being aggrieved and dissatisfied with calculations made
by Workmen Compensation Commissioner vide order dated
7.11.2019, in terms of judgment dated 16.10.2019 passed in
FAO No. 97 of 2013, appellant-Insurance company has
approached this court in the instant proceedings, seeking
therein quashment of order dated 7.11.2019.
14. Having taken note of the grounds of appeal and nature of
order sought to be laid challenge in the present appeal, this
Court is of the view that the appeal is not maintainable. All the
grounds raised in the appeal have been already taken note by
this Court, while passing judgment dated 16.10.2019, as such,
fresh appeal could not be filed on same grounds. Moreover,
appellant has already accepted the judgment dated
16.10.2019 passed by this Court because, no appeal,
whatsoever, has been filed in the superior court of law and
.
amount awarded by this Court already stands deposited with
the learned Commissioner below. otherwise also, order dated
7.11.2019 passed by learned Commissioner below could not
have been laid challenge in the instant proceedings. Leaving
everything aside, this Court finds that otherwise also, main
grouse of the appellant, as has been projected in the instant
case is with regard to awarding of interest at the rate of 12%
p.a. on account of delay in making the payment in terms of
Section 4-A(3)(a), which otherwise was not intended to be
passed by this Court, while passing the judgment in question.
Since this Court, while passing order in CMP No. 2145 of 2020
has already clarified/modified judgment dated 16.10.2019
clarifying that the interest at the rate of 12% has been
inadvertently ordered to be calculated vide Clause-5 of para-
34, the appeal is disposed of alongwith pending applications, if
any.
(Sandeep Sharma)
Judge
March 9, 2021
(vikrant)
