Thus, the decision of the larger bench in
Pratap Narain's case would bind this Court and hence,
it is held that the compensation payable in such cases
would be on the date of accident, irrespective of any
dispute regarding total denial of liability or denial of
liability to the extent claimed as against the accepted
sum. The expression "falls due" employed under sub-
section (1) of section 4-A of the said Act shall have to
be, therefore, construed with reference to the date of
accident only. Any other construction would defeat the
object of sub-section (1) of section 3 of the said Act,
which is to make the compensation immediately
available for the benefit of the claimants, whose bread
winner might have been seriously injured or might
have lost his life.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
FIRST APPEAL NO. 744 OF 2003
Ishwar Gulab Pawar,
Versus
Ayoub Jamal (Qureshi),
CORAM : T.V. NALAWADE, J.
PRONOUNCED ON : 24th June 2014.
Citation; 2015(1) MHLJ358
learned
counsel
for
appellant/original
claimant and learned counsel for Insurance Company for final
disposal. The other learned counsel for respondent No. 2 did not
turn up.
2.
The appeal is filed by original claimant against the
judgment and order of WCA No. 81/1999, which was filed before
the Labour Court, Ahmednagar (Commissioner under Workmen's
Compensation
Act,
1923).
The
proceeding
was
filed
for
compensation in respect of injuries sustained by the claimant in
motor vehicle accident and the accident had taken place during
the course of his employment with respondent No. 1, owner of
the vehicle. The vehicle was insured with respondent No. 2,
Insurance Company and the accident took place on 18.3.1999.
3.
It is the case of appellant/claimant that he sustained
fracture injury to one leg and also to one hand and due to
fracture injuries, he cannot work as a driver. He has contended
that
he
had
given
the
evidence
accordingly
before
the
Commissioner, but that evidence is not considered by the
Commissioner. It is his case that when his monthly salary was
Rs. 2000/- and when there was no evidence in rebuttal to such
evidence given by him, the Commissioner presumed that the
monthly salary was around Rs. 1300/- and so, the Commissioner
has committed error in calculating loss of future income of
claimant. It is contended that Commissioner ought to have held
that there is permanent total disablement due to these injuries.
4.
The other grievance of the appellant/claimant is
about the 'penalty'. It is contended that the Commissioner has
not granted penalty even when notice was given by him to the
owner and demand of compensation was made and the owner
did not pay any compensation. It is contended that the
Commissioner ought to have considered the circumstance of
giving notice and also the fact that, the claimant is held to be
entitled for getting the compensation.
5.
During arguments in this proceeding, in view of
provision of 30 of Workmen's Compensation Act, 1923 the
learned counsels were told that following substantial questions
will be considered as per the submissions made by the learned
counsel for the appellant and argument was heard on these
points.
Whether the Commissioner has committed error
(i)
Rs. 1300/- ?
Whether
the
(ii)
in holding that the monthly salary of claimant was only
committed
error
in
Commissioner
holding
that
has
there
further
is
only
permanent partial disablement and it is to the extent of
40% ?
(iii)
Whether the Commissioner has committed error
in not following the procedure for consideration of
grant of the penalty atleast as against respondent No.
1, the employer ?
6.
From
the
record,
it
can
be
said
that
the
Commissioner considered the relevant evidence and rival cases,
but the evidence was not correctly appreciated and the
inferences were not correct. It is admitted that the claimant was
working as a driver on a tempo, goods vehicle of respondent No.
1. When the accident took place on 18.3.1999, notice of demand
was given by the claimant to owner and Insurance Company on
15.7.1999. In the notice, the incident and the claim were
mentioned. The injuries were also described, though there was
no disability certificate obtained by the claimant at that time.
This notice was replied by the owner on 28.7.1999. The owner
denied the claim. He denied that the claimant was regular
employee and he contended that claimant was appointed as
'Badli driver' for two days on daily wages of Rs. 50/- as regular
driver was on leave. The owner denied that there was
permanent total disablement and the claimant cannot drive the
four wheeler due to the injuries sustained in the accident.
Though such defence was taken by the owner, in reply, no
written statement was filed by owner, employer before the
Commissioner. Only the Insurance Company contested the
matter. It needs to be kept in mind that the Insurance Company
has no personal knowledge with regard to the income and age of
the claimant.
7.
The claimant examined himself and he examined
two doctors to prove the disability. The claimant admitted in the
cross examination that the vehicle, which he was driving, was
medium weight vehicle. Though he tried to say that he cannot
drive heavy vehicle, he has given admission that no tests were
taken during his examination to ascertain as to whether he can
or he cannot drive four wheeler. He gave evidence that he had
come to the Court by using crutches and he was required to use
crutches for walking. But only due to this contention, inference is
not possible that he cannot walk or he cannot drive four wheeler
vehicle. His evidence shows that he had not applied for
cancellation of driving licence, he had not surrendered the
driving licence. The claimant has admitted that he was not
terminated from service and he had not requested to respondent
No. 1, employer to give him other job like of cleaner. These
things need to be kept in mind while appreciating the evidence
given by the two doctors.
8.
Dr. Rasool was a member of the team of Amrut
Wahini Hospital, where treatment was given to the claimant. He
has described the injuries sustained by the claimant and they
were as follows :-
(i) communicated fracture of left tibia,
(ii) fracture of right tibia with impeding compartment
syndrom, and
(iii)
fracture of left redious shaft.
There were other minor injuries like conjestion to chest and
some part of head. Dr. Rasool is not Orthopedic Surgeon and his
evidence can be considered only for proving the injuries
9.
sustained by the claimant and for proof of M.L.C.
Dr. Shirsat is Orthopedic Surgeon. He gave treatment
and he also gave disability certificate. He has given evidence
that there was a fracture of left leg. No substantive evidence is
given on the fracture of right leg. He has given evidence that
there was fracture of left redious. He has given evidence that
due to these injuries, the claimant is suffering from permanent
disability and it is to the extent of 25%. He has, however, tried to
say that claimant cannot drive four wheeler vehicle and so, there
is 100% loss of earning capacity. He has given evidence that
claimant cannot walk like normal man. The evidence in cross
examination of this doctor shows that the disability in respect of
limbs was not separately assessed and aforesaid disability is
with reference to the entire body. He had not produced the notes
of assessment prepared by him for assessing permanent
disablement. His evidence shows that he gave disability
certificate on the basis of clinical examination only. However,
there is other record like discharge card and case papers of the
hospital to show that the claimant sustained aforesaid fracture
injuries.
10.
'Total disability' is defined under section 2 (l) of the
Workmen's Compensation Act, 1923 (In short 'Act) as under :-
""total disablement" means such disablement,
whether of a temporary or permanent nature, as
incapacitiates a workman for all work which he
was capable of performing at the time of the
accident resulting in such disablement :
Provided that permanent total disablement shall
be deemed to result from every injury specified in
Part I of Schedule I or from any combination of
injuries specified in Part II thereof where the
aggregate percentage of the loss of earning
capacity, as specified in the said Part II against
those injuries, amounts to one hundred per cent or
more;"
11.
calculation
Section 4 of W.C. Act gives two different modes for
of
compensation
in
respect
of
permanent
disablement. The modes show that when there is permanent
total disablement, amount equal to 60% of monthly wages
multiplied by relevant factor needs to be given. When there is
permanent partial disablement, the compensation for total
disablement is required to be taken in to consideration and
compensation to the extent of percentage of partial disablement
only can be given. In the present case, in view of the contentions
and the evidence, the provision of section 4 (1) (c) needs to be
"(c)
Where
permanent
considered and used. The provision is as under :-
partial
results from the injury -
(i)
disablement
in the case of an injury specified in Part II of
Schedule I, such percentage of the compensation
which would have been payable in the case of
total
disablement
permanent
as
is
specified
therein as being the percentage of the loss of
earning capacity caused by that injury, and
in the case of an injury not specified in
(ii)
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 has resulted from the
injuries.
Explanation II.- In assessing the loss of earning
capacity for the purpose 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;"
12.
If we see Part I and II of the Schedule I of the Act, it
becomes clear that the injuries of claimant do not fall under both
these parts. The note below Schedule I is as under :-
"Note:- Complete and permanent loss of the use of
any limb or member referred to in the Schedule
shall be deemed to be the equivalent of the loss of
that limb or member."
From the aforesaid provisions, it can be said that as
13.
total disability assessed was only 25%, and as there is no
evidence that in respect of any limb there was the injury as
mentioned in Part I and Part II of Schedule I of the Act, the case
needs to be treated as one of permanent partial disablement.
There was one option viz. to give evidence as per aforesaid note
given to Schedule I. But, no evidence is given by the claimant or
doctors to the effect that there is permanent loss of use of any
such limb or member referred in the Schedule. So, it is not
possible to presume that there is permanent total disablement.
Further, the evidence of Dr. Shirsat does not show that he had
even referred Schedule I of the Act and in certificate given by Dr.
Shirsat also, there is no such mention. It appears that the
certificate was prepared for the purpose of Motor Vehicle Act.
When there is no loss of limb or member as described in Part I of
Schedule I and when there is no evidence to show that there is
the loss of use of any limb or member to take the case under
Part I of the Schedule, the claimant cannot get compensation
under the Act for loss of permanent total disablement. It is not
the case that total extent of permanent disability in relation to
14.
the limbs injured is 100%.
The medical evidence is opinion evidence and even
in an inquiry, which is required to be made in summary manner
by Commissioner, in such a case, when there is no satisfactory
evidence
on
the
loss
of
earning
capacity,
the
Court
(Commissioner) is required to draw inference on whatever
material available. The decision of Commissioner on such point
is decision on question of fact. The Commissioner has considered
the aforesaid material and has come to the conclusion that
inference is possible that there is loss of earning capacity to the
extent of 40% though permanent partial disablement is to the
extent of 25%. This Court sees no reason to interfere in this
finding of the Commissioner.
15.
The evidence is given on the age of the claimant. He
had contended that his age was 29 years at the relevant time.
School leaving certificate is produced to show that he was born
on 5.6.1969. The accident took place on 18.3.1999. Thus, there
was evidence to show that he had completed 29 years on the
day of accident. In view of this, apparently proper factor from
Schedule IV, given to section 4 of the Act, would be 209.92. The
Commissioner has used the factor for age 30, which is 207.98.
Thus, there is apparent mistake committed by the Commissioner
16.
in adopting proper factor.
Rule 27 of Workmen's Compensation Rules, 1924
shows that when proceeding is contested by filing written
statement, the Commissioner is not expected to examine the
opponent upon the claim. However, when the proceeding is not
contested, the Commissioner is expected to proceed to examine
the opposite party upon the claim and the provision show that
he shall reduce the result of examination in to writing. Though
the reply was given to the notice of claimant by the employer,
the employer did not file written statement. Insurance Company
contested the matter, but few relevant things are within the
knowledge of the employer and so, it was expected from the
Commissioner to examine the employer in view of provision of
Rule 27 (2) of Workmen's Compensation Rules. Only on the basis
of the reply given by the employer, that claimant was working
on daily wages and he was paid Rs. 50/- per day, the
Commissioner presumed that the monthly wages amount was
Rs. 1300/-. It was submitted that due to this approach of the
Commissioner, much less amount than the entitlement is given
The
learned
counsel
17.
by the Commissioner.
for
the
appellant/claimant
placed reliance on some reported cases like ACJ-2010-0-1971
SUPREME COURT OF INDIA [Sri. B.T. Krishnappa Vs.
Divisional Manager, United Insurance Company Ltd.], ACJ-
2010-0-1459 SUPREME COURT OF INDIA [Manoj Rathaur
Vs. Anil Raheja] and (2014) 5 Supreme Court Cases 330
[Sanjay Kumar Vs. Ashok Kumar and Anr.]. These three
cases are on the provisions of Motor Vehicle Act. The facts of
these reported cases were also different. When the claim is
made under the provision of the Act, the aforesaid provisions
need to be considered and used for calculation of compensation.
The provisions of the Act are self sufficient, but the evidence of
the nature discussed above needs to be given. This Court holds
that in the present case, the observations made in the aforesaid
three cases are of no help to the appellant. However, for giving
finding on monthly wages of the claimant and the factor which
needs to be adopted, the matter needs to be reconsidered by
18.
the Commissioner.
On the second point, the learned counsel for the
claimant placed reliance on the case reported as 2009 (5)
523
(AURANGABAD
BENCH)
Bom.C.R.
Rangnathrao Pawar Vs. Sheshrao Ramji Jogdanad & Anr.].
The learned Single Judge of this Court has considered and
discussed three cases of the Apex Court on the point of penalty,
which can be given to claimant and the cases are reported as
AIR 1976 SC 222 [Pratap Narain Singh Deo Vs. Shrinivas
Sabata], AIR 1997 SC 3854 [Ved Prakash Garg Vs. Premi
Devi] and AIR 2007 SC 1208 [National Insurance Co. Ltd.
Vs. Mubasir Ahmed]. The learned Single Judge of this Court
has held that the case of Pratap Narain Singh Deo was
decided by larger bench and the other case of Ved Prakash
Garg cited supra need to be used as the law laid on the point. It
is observed that in the subsequent case viz. Mubasir Ahmed's
case, the Apex Court has not considered the ratio laid down in
the two cases already decided and so, the ratio laid down in the
case of Pratap Nairan's case cited supra need to be used. The
relevant paras from the judgment of the learned Single Judge of
this Court are 12, 21, 31 and 32 and they are as under :-
"12.
Section 3 of the said Act deals with the
employers liability for compensation.
Sub-section (1)
of section 3 of the said Act states that if personal injury
is caused to a workman by an accident arising out of
and in the course of his employment, his employer
shall be liable to pay the compensation in accordance
with this chapter. What is the amount of compensation,
which is required to be paid by the employer to the
workman under sub-section
(1) of section 3,
is
specified under section 4. Section 4-A of the said Act
deals with the compensation to be paid when due and
the penalty for default. Sub-section (1) of section 4-A
states that the compensation shall be paid as soon as it
"falls due". Sub-section (3) of section 4-A states that
where any employer is in default in paying the
compensation under this Act, within one month from
the date it "fell due", the Commissioner can direct in
terms of clause (a) that the employer shall, in addition
to the amount of arrears, pay simple interest thereon,
at the rate of 12 per cent per annum.
further empowers the
Clause (b)
Commissioner to direct the
employer to pay, in addition, a further sum not
exceeding 50 per cent of such an amount by way of
penalty, if, in his opinion, there is no justification for
delay in payment of arrears and interest. However, the
only rider on imposition of penalty under clause (b) is
that the employer has to be given a reasonable
opportunity to show cause why the order imposing the
penalty should not be passed.
21.
Thus, the decision of the larger bench in
Pratap Narain's case would bind this Court and hence,
it is held that the compensation payable in such cases
would be on the date of accident, irrespective of any
dispute regarding total denial of liability or denial of
liability to the extent claimed as against the accepted
sum. The expression "falls due" employed under sub-
section (1) of section 4-A of the said Act shall have to
be, therefore, construed with reference to the date of
accident only. Any other construction would defeat the
object of sub-section (1) of section 3 of the said Act,
which is to make the compensation immediately
ig
available for the benefit of the claimants, whose bread
winner might have been seriously injured or might
31.
have lost his life.
Now, turning to the question of imposition
of penalty under sub-clause (b) of sub-section (3) of
section 4-A of the said Act, the Apex Court has held in
Ved Prakash's case (supra) that the penalty is required
to be levied under the said provision after issuing show
cause notice to the employer concerned who will have
a reasonable opportunity to show cause why, on
account of some justification on his part for the delay
in payment of the compensation amount, he is not
liable for this penalty. It has further been held that if
ultimately, the Commissioner after giving reasonable
opportunity to the employer to show cause, takes a
view that there is no justification for such a delay on
the part of the insured employer and because of his
unjustified delay and due to his personal fault he is
held responsible for the delay, then the penalty would
be imposed on him. It has further been observed that
so far penalty is concerned, the same is not automatic
flowing from the main liability incurred by the insured
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FA 744/03
17
32.
employer under the said Act.
This judgment in Ved Prakash's case has been
followed in un-reported judgment of this Court in
F.A.No. 1562/2009, Nandi Sahakari Sakhar Karkhana's
case (supra).
It has been held that a show cause
notice was required to be issued to the employer
calling upon him to furnish the explanation for the
delay caused in making the payment of arrears. Upon
receipt of the explanation from the employer, if the
ig
Commissioner is not satisfied then the penalty to the
extent of maximum 50 per cent of the amount of
compensation determined is required to be paid by the
employer. The order impugned in the present case is a
composite
order
determining
the
compensation
payable by the employer imposing the interest on the
arrears of the amount of compensation and imposing
penalty
for
failure
to
furnish
the
satisfactory
explanation. The show cause notice contemplated by
clause (b) of section 3 of section 4-A of the said Act is
with reference to the arrears of the amount of
compensation
determined
to
be
payable
by
the
employer along with the interest payable thereon. This
finding would arise only upon determination of the
compensation by the Commissioner under section 19
of the said Act.
Hence, the show cause notice
contemplated is after passing of the order by the
Commissioner determining the compensation. In view
of this order imposing penalty of Rs.45,000/- to the
extent of 50% of the amount of compensation of
Rs.90,000/- determined by the
Commissioner, needs
to be quashed and set aside with a direction to the
Commissioner to issue a show cause notice providing
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FA 744/03
18
the appellant / employer a reasonable opportunity of
heard
in
the
matter
and
to
furnish
the
being
explanation for the delay caused in making the
payment of arrears of compensation and interest, and
thereafter to pass an appropriate order."
19.
In view of the aforesaid position of law and the facts
of the present case, it can be said that there was sufficient
ig
material to make out the case for imposing penalty on owner.
The Commissioner ought to have considered the case from the
angle discussed above. This Court holds that for following the
procedure like issuing show cause notice to the employer, for
giving the opportunity in respect of imposition of penalty, the
matter needs to be remanded back. So substantial questions of
law (i) and (iii) are answered accordingly, in favour of claimant.
The remaining substantial question of law is answered against
the appellants/claimant. In the result, the following order.
ORDER
(I)
The appeal is partly allowed with no order as to
costs.
(II)
The judgment and order of the Commissioner to the
extent mentioned above is set aside.
(III)
for
The matter is remanded back to the Commissioner
taking
the
decision
on
the
point
of
calculation
of
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FA 744/03
19
compensation in view of the observations made in this decision
and also for following the procedure for considering the point of
imposition of penalty and for giving findings on those points
again.
(IV)
Remaining portion of the judgment and order of the
(V)
Commissioner is maintained.
Parties to appear before the Commissioner on
[ T.V. NALAWADE, J. ]
ssc/
ig
23.7.2014.
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