Gujarat High Court
Sakinabibi And Anr. vs Gujarat State Road Transport ... on 11 December, 1990
Equivalent citations: I(1993)ACC171
JUDGMENT J.N. Bhatt, J.
1. These two appeals are directed against a common judgment and award passed by the Commissioner for Workmen's Compensation ('Commissioner for short, hereinafter), on 23.2.1982, in a W.C. Case No.3 of 1981. The appellants have thus invoked the provisions of Section 30, Workmen's Compensation Act, 1923.
2. In First Appeal No. 1718 of 1982, the appellants have challenged the refusal of the amount of penalty and interest under Section 4-A(3) of the Workmen's Compensation Act, 1923 ('Act' for short, hereinafter). The appellant in First Appeal No.1721 of 1982 has challenged the entire award. The appellants in First Appeal No.1718 of 1982 are the original applicants and the appellant in First Appeal NO.1721 of 1982 is the original opponent employer, Gujarat State Road Transport Corporation ('Corporation' for short, hereinafter). The parties are hereinafter referred to as the original applicants and original opponent employer Corporation, for the sake of convenience and brevity.
3. The material facts leading to the rise of the present appeals may be initially stated so as to appreciate the merits of the appeals and the challenge against them. Since both these appeals arise out of one and common judgment and award, they are being disposed of by this common judgment.
4. Original applicant No. 1 is the widow and original applicant No. 2 is the minor daughter of deceased workman Fakirmohmed Chandubhai Chauhan. The applicants preferred an application for compensation of Rs.27.000/- with interest and costs against the original opponent employer Corporation, on account of the unfortunate death of their bread-winner, due to personal injuries sustained by the deceased out of and in the course of his employment with the employer. The deceased was working as a driver of opponent Corporation. The accident in question occurred on 2.11.1979. The deceased was in charge of a S.T. bus No.8672 on the day of incident. The bus was proceeding from village Gorad to Mehsana, when the said bus reached near, Gopi Cinema, in the city of Mehsana, the deceased, all of a sudden, fell down on the steering of the bus and died on the spot. The deceased was earning Rs.800/- per month by way of salary. The deceased was aged about 45 years at the time of incident. The applicants have served the opponent with a notice for compensation. The said notice was neither replied nor complied. Therefore, the applicants filed the W.C. Case No.8 of the 1981 for compensation under Section 3 of the Act, before the learned Commissioner, on 3.7.1981.
5. The opponent employer Corporation appeared and resisted the application by filing written statement, at Exh. 11. It was, inter alia, contended that the deceased workman had died a natural death. Thus it was denied that the deceased had died due to injuries arising out of and in the course of his employment with the Corporation. Thus it was denied that the applicants were entitled to any amount of compensation. It was also denied that the deceased was earning Rs.800/- per month.
6. In view of the facts and circumstances of the case and the pleadings of the parties, issues came to be settled, at Exh. 12.
7. The applicants relied on the evidence of the widow of the deceased, Sakinabibi, at Exh. 28 and the evidence of Dr. M.K. Solanki, at Exh. 40. The applicants also relied on the evidence of the bus conductor, M.G. Davc, at Exh.42. The opponent Corporation relied on the evidence of Dr. N.S. Dave, at Exh.47. The parties also relied on the documentary evidence to which reference will be made as and when required, at the appropriate stage.
8. On appreciation of the evidence, the learned Commissioner was pleased to award Rs.23,100/- by way of compensation to the applicants from the opponent under Section 3 of the Act, with costs. However, the learned Commissioner did not award interest on the amount of compensation and penalty under Section 4-A(3) of the Act.
9. Being aggrieved by the judgment and award, the original applicants have filed First Appeal No. 1718 of 1982 challenging the refusal to grant interest and penalty under Section 4-A(3) of the Act and the original opponent Corporation has challenged the award of compensation to the tune of Rs.23,100/- in First Appeal No. 1721 of 1982.
10. The controversy in these two appeals is circumscribed to a very narrow compass. Two questions are required to be determined as follows:
(i) whether the deceased died a death out of and in the course of his employment or not ? and
(ii) whether the applicants are entitled to interest and penalty under Section 4-A(3) of the Act?
11. In order to appreciate merits of these two points raised before this Court in these two appeals, it would be necessary to set out relevant facts emerging from the facts on the record.
12. Deceased Fakirmohmed was working as a S.T. bus driver, bearing badge No.6339. He was in charge of S.T.B us No.8672 on 2.11.1979, the day on which the incident occurred. Thus, there is no dispute about the factum of death. The deceased was driving the said S .T.bus on the day of incident from village Gorad to Mehsana. When the said bus reached near the Gopi Cinema, in the city of Mehsana, the unfortunate incident occurred. It is also an admitted fact that the deceased died in the course of his employment with the opponent employer Corporation. The deceased died while he was on his duty and when he was sitting in his cabin, in the S.T.bus. When the said bus reached near Gopi Cinema, in the city of Mehsana, at that time, one boy, all of a sudden, emerged on the road. In order to save the boy, the deceased applied brakes all of a sudden. Thereafter the driver of the bus, deceased Fakirmohmed, fell on the steering and died on the spot.
13. The contention of the opponent employer Corporation is that the deceased driver died a natural death and the death cannot be said to be out of employment. Therefore, the important question which is required to be examined is as to whether the personal injuries sustained by the deceased could be said to be injuries attributable or referable to employment with opponent employer Corporation or not. The learned Commissioner was pleased to find that the deceased was a 'workman' and he died on account of personal injuries arising out of and in the course of his employment. This finding is seriously challenged on behalf of the opponent employer Corporation.
14. In order to earn an award for compensation under Section 3 of the Act, it is necessary to prove that the personal injury or the resultant death, as the case may be, is caused to a workman by accident arising out of and in the course of his employment with the employer. The words 'out of employment' emphasise a causal connection between the employment and the accidental injury. Though the word 'accident' occurring in Section 3 of the Act is not defined in the Act, the said expression has been subjected to number of judicial decisions, as a result of which it has come to acquire a settled meaning. It is well settled position of law that under Section 3 of the Act, it must be shown that there was a proximate cause and nexus between the personal injury or the accident and the work or employment. Therefore, it is incumbent upon the applicants to prove that there was a causal relationship between the injuries and the work in question. Section 3 of the Act clearly prescribes that the personal injury or the accident must be proved to have arisen out of and in the course of employment. If it is successfully proved or shown that the injury sustained by the workman had arisen out of and in the course of his employment, then the workman or the dependant of the deceased workman would be qualified and eligible for compensation under Section 3 of the Act.
15. If the workman dies as a natural result of disease from which he was suffering or while suffering from a particular disease, he dies as a result of natural wear and tear. then in that case no liability could be fixed upon the employer. But if the employment is contributory cause or has accelerated the death, or if the death was due not only to the disease but the deceased coupled with the employment, then in that case if can be said that the death arose out of employment and the employer would be liable.
16. Under Section 3 of the Act, accident must arise out of and in the course of employment with the employer. The accident in order to give rise to a claim for compensation, must have some causal relation to the workman's employment and must be due to a risk incidental to that employment.
17. In the case of death caused by employment injury, the burden of proof rests upon the workman to prove that the accident arose out of employment and in the course of the employment. But this does not mean that the workman who comes to court for relief must necessarily prove it by direct evidence. It could also be inferred when the facts proved justify the inference. It is, of course, impossible to lay down any strict jacket formula or rule as to the extent and degree of proof in such matter, which is sufficient to justify an inference being drawn. Strict proof as to the cause of death or the result of personal injury in a proceeding under the Act is not as high as in an ordinary civil litigation before the Civil Courts. In fact, this Court has held in a decision rendered in the case of Chiman Surakhia Vasva v. Ahmed Musa Ustad 1987 ACJ 161 (Gujarat) : II (1986) ACC 9 (Gujarat), that strict principles of Evidence Act and the Civil Procedure Code are not applicable to the proceedings under the Act.
18. The underlying purpose of the Act is to make some provision for a workman, who is disabled or who has become victim of employment accident. The provisions the Act are not intended for awarding damages for negligence of the employer. The provisions of the Act are required to be interpreted and construed broadly and liberally 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 paid to the victim. The provisions under the Act are, thus, not governed by the technical rules of Evidence Act and Civil Procedure Code. Unlike the powers and duties of the Civil Judge, the duties and powers of the Commissioner under the Act are quite distinct. In fact, under the Act, the Commissioner is empowered to suo motu initiate an inquiry to ascertain information pertaining to the injuries or fatal accident and he can call upon the employer to explain as to how and under what circumstances the accident had occurred, and death had taken place. In a very large country like ours, where larger labour population suffers from the vices of illiteracy, poverty and incapability to bring their rightful claims for adjudication before the Courts of law and to fight out with powerful and strong employers, the role of the Commissioner assumes different and significant dimensions and the Commissioner is required to remain vigilant and cautious so as to see that the rightful claim of the victim of employment injuries is not affected or defeated.
19. The learned Commissioner reached the conclusion that there was a causal connection between the death and the employment. This finding of fact is sought to be challenged. It is contended by the learned Counsel appearing for the opponent employer Corporation that there is no evidence to connect the demise with the employment of the Corporation, although mere is no dispute about the death of the S.T. driver/workman Fakirmohmed, on 2.11.1979, in the cabin of the driver. Thus, admittedly, the deceased driver died while on duty, on his seat in his cabin, in the S.T. bus while the vehicle was in motion. However, it is seriously contended that the death was not referable to the expression 'out of employment'. After having examined and appreciating the evidence on record, the learned Commissioner came to the conclusion that the death was attributable to the employment. This finding of fact has remained unassailable. It was held by the learned Commissioner that, normally, a driver while applying brakes would not entertain fear or tension. But when he is suffering from headache and mental stress and strain and in that event if aneurism gets burst, the accidental death is said to have arisen out of his employment.
20. In this connection, the medical evidence is pertinent to refer. Dr. M.K. Solanki is examined, at Exh. 40. He was working, at the relevant point of time, as the medical officer in the Civil Hospital at Mehsana. He had conducted the autopsy of the deceased Fakirmohmed. The post-mortem report is also produced in the present case, which is at Exh. 41. According to the evidence of Dr. Solanki and the post-mortem report, the cause of death was shock, due to intracranial haemorrhage. It is clearly testified by Dr. Solanki that though there are many reasons for rupture of aneurism, one of the reasons could be hypertension. It is also stated by him in his evidence that the systolic blood pressure would be of a higher side on account of all of a sudden applying brakes of a running vehicle, which could result into bursting of aneurism. There is evidence on record to show that the deceased Fakirmohmed was suffering from headache. The widow of the deceased has also testified that her husband was suffering from headache. Evidence of the bus conductor, Nathalal G. Dave, Exh.42, clearly goes to show that the deceased S.T. driver, Fakirmohmed, was suffering from headache, on the day of the incident. The journey of the bus driven by the deceased Fakirmohmed had commenced on the day of the incident from the village Gorad and the bus was proceeding towards Mehsana. It is clear from his evidence that when the bus reached near the clinic of Dr. Lalbhai, in the city of Mehsana, at that time, a child, all of a sudden, emerged on the road, with the result the deceased had applied brakes all of a sudden so as to save the child. In that process, the driver of the bus, the deceased Fakirmohmed, underwent serious stress, and strain. Immediately thereafter he fell on the steering of the bus. He was shifted to Civil Hospital, at Mehsana, in an auto rickshaw, where he was declared dead. Thus, there is evidence to show that deceased workman, while driving his S.T. bus, was suffering from headache and he had all of a sudden applied brakes so as to save a child. Under these circumstances, there is evidence of Dr. M.K. Solanki, who has stated in his deposition, at Exh.40, that such a situation may cause high systolic blood pressure and it may lead to rupture of aneurism. There is no reason why the evidence of the bus conductor Dave and the evidence of Dr. Solanki should be discarded.
21. It is seriously criticised that the evidence of the bus conductor, Dave, is not reliable. In that it is contended that there were some departmental inquiry proceedings against the conductor initiated and, therefore, the conductor would be an interested witness and he would be tempted to support the version of the applicants. This aspect itself would not be sufficient to straightway discard the testimony of the bus conductor Dave. The learned Commissioner has considered all the relevant facts and circumstances and has rightly believed the version of the applicants. There is also no reason to brush aside the evidence of the medical officer, Dr. Solanki. Of course, there may be variety of reasons for rupture of aneurism resulting into death, as stated by Dr. Solanki. But the learned Commissioner has considered the facts and circumstances of the case and came to the definite conclusion that the death could be said to have arisen out of the employment. There is no dispute about the fact that there was rupture of aneurism vein and vessels. There is also no dispute about the fact that rupture can be caused by high systolic blood pressure. The driver who was in charge of the S.T. bus was suffering from headache. He was required to, all of a sudden, apply brakes. This might have raised the systolic blood pressure. Ordinarily, a driver while applying brakes would not undergo such stress and tension culminating into rupture of aneurism. But if a person who is suffering from headache, while driving his vehicle like a bus, has to all of a sudden apply brakes, it would definitely lead to higher degree of tension and stress and if aneurism gets burst, causing fatal injury, it could safely be said to have been caused out of employment.
22. It is not necessary for the dependants of the deceased workman to prove that the deceased was engaged in some exceptional work of a particular kind which had caused excess strain on the deceased so as to result in his death. If the work in which the workman was engaged was likely to accelerate death, it could be said that there was proximate nexus between the death and the employment. As observed hereinbefore, strict and direct evidence may not be obtainable in such cases. Therefore, what is required to be considered is whether the death could have been a probable cause of an excessive stress or strain. In such a situation, the question whether the evidence in a particular case is sufficient to create liability of the employer for the payment of compensation would, undoubtedly, depend upon the facts whether the evidence was of such probability that it would satisfy a reasonable or a prudent man that the work contributed or accelerated the death of the workman, or that the workman was engaged in such activity that it was likely to cause such strain which would accelerate his death. In order to ascertain whether there was proximate cause or causal relation between injury and the work, legitimate inference on proved facts can also be drawn. The learned Commissioner has, therefore, rightly inferred that there was a causal connection between the death and the work of the deceased. The serious criticism and contention raised on behalf of the opponent employer Corporation is, therefore, devoid of any merit.
23. It is also contended on behalf of the opponent employer Corporation that the evidence of Dr. N.S. Dave would go to show that the cause of death would not have been rupture of aneurism on account of application of brakes by the driver of the S.T. bus Evidence of Dr. N.S. Dave, Exh. 47, is also considered by the learned Commissioner, it appears that he has specialised study in a foreign university in so far as chest and lungs diseases are concerned. Reliance is also placed on his evidence on the observations made in para 33 in the Manual of Surgery (Volume 1) by Rose and Carles. It is contended, relying on these observations, that the steady laborious employment such as is seen amongst astrisans and mechanics on regular exercise does not appear to predispose to this condition and that the driver of the S.T. bus would not have succumbed to the bursting of aneurism on account of driving of such a vehicle. Well, these are two general propositions. The question in the instant case is, when a person, who is already undergoing headache, undertakes journey of a S.T. bus as a driver and has to, all of a sudden, apply brakes so as to save a child emerging on the road, could he not have undergone such a degree and extent of mental stress and strain resulting into rupture of aneurism? Dr. Dave has stated in his evidence that ordinarily there will be no bursting of aneurism on account of application of brakes all of a sudden. There is no doubt about this proposition. Ordinarily, there will be no bursting of aneurism as and when there is abrupt application of brakes. We may not enter into further details and merits of the testimony of Dr. Dave. But one thing is crystal clear. In the light of the evidence on record, the probability which is required to be considered in the instant case is that whether a person, who is in charge of a vehicle like a bus, suffering from headache had all of a sudden applied brakes so as to save a child, would sustain mental stress and strain resulting into bursting of aneurism or not? The answer to this question would not be in negative in the light of the facts of the case. Now, what would be the exact cause of rupture of aneurism could not be said by any expert. There are various reasons leading to the bursting of aneurism. But one of the most probable.-cause would be the stress and strain suffered by the deceased, while driving the S.T. bus with headache; when he all of a sudden applied the brakes. In the opinion of this Court, the appreciation of evidence by the learned Commissioner on this score cannot be said to be erroneous.
24. According to the evidence on record, the cause of death was shock due to intracranial haemorrhage as there was bursting of aneurism. Post-mortem report, produced at Exh.41, also goes to show that there was bursting of aneurism. According to the medical terminology, 'aneurism' means localised dilation of the blood vessels. The aneurism could be because of high systolic blood pressure which may be caused by stress and strain. The evidence on record, while reading as a whole, would go to show that the finding of the learned Commissioner that the death was referable to the work of a S.T. driver cannot be said to be erroneous. Therefore, it can safely be concluded that the employment in which the deceased was engaged, undoubtedly, contributed to the untimely demise of the S.T. driver, and there was proximate nexus between the death and the work. Therefore, the injuries resulting into death were referable to and attributable to the employment in which the deceased was engaged, at the relevant point of time. There is not any doubt in holding that the injuries resulting into death of deceased, Fakirmohmed, arose out of and in the course of his employment. Therefore, the serious contention that the death had not arisen out of the employment, cannot be sustained.
25. The learned Counsel appearing for the parties have relied on a number of case-laws in support of their rival submissions.
26. Reliance is placed by the learned Counsel for the original applicants on a decision of the Bombay High Court rendered in the case of Zubeda Bano v. Divisional Controller Maharashtra State Road Trans. Corporation , In that case the claimants had claimed compensation for the death of the driver of the S.T. Corporation alleging that the death had occurred out of and in the course of his employment. The driver had completed one schedule of his journey and was to begin his next schedule when his body was found lying on the bonnet and steering wheel. The employer Corporation questioned its liability and contended as in the present case that it was a natural death due to heart failure unconnected with his employment. There was no direct evidence about the happening of the incident. The Commissioner found that the claimants failed to discharge the burden of proving the ingredients of Section 3 of the Act and ultimately dismissed the Claim for compensation. On appeal, the High Court held that the Corporation failed to examine any witness or produce any record to sub-stantiate its plea and, therefore, adverse inference should be drawn against the Corporation and held that the death of the deceased arose out of and in the course of employment. The interest was also awarded at the rate of 6 per cent per annum from the date of the accident. The said decision is rendered after considering 9 other relevant decisions. The said decision clearly supports the version of the original applicants.
27. Reliance is also placed on a decision rendered in the case of Laxmibai Atmaram v. Chairman and Trustees, Bombay Port Trust, MR. 1954 Bombay 180, by the .learned Counsel for the original opponent employer Corporation, Decision rendered in this case, in any way, does not support the version of the employer. In that case, the Commissioner had rejected the claim holding that it was a case of natural death. The High Court, in appeal, set aside the order of the Commissioner and held that the injury in question (heart injury) was contributory on account of the work in which the deceased was engaged. Thus, it was found that the heart injury was accelerated by stress and strain of the work. In short, it was found that there was a causal connection between the employment and work and, therefore, the employer was held liable for the payment of compensation under Section 3 of the Act. Therefore, the said decision is of no avail to the employer to defeat the claim of the original applicants. Again, this decision is also considered in the decision in the case of Zubeda Bano v. Divisional Controller Maharasthra Stale Road Trans. Corporation .
28. On behalf of the original applicants, reliance is placed on a decision rendered in the case of Bhagwanji Murubhai Sodha v. Hindustan Tiles and Cement Industries, Jamnagar (1976) 17 Gujarat LR 835. It was held in that case that the motor driver, aged 62, driving a car in the course of employment suffering from heart attack could be said to have sustained injuries arising out of and in the course of employment. The deceased was working as a driver, who had suffered pain in chest and died. It was held by this Court that such an injury has a causal connection with the work and, there fore; the employer was liable for the payment of compensation. It was also held that in such a situation, the accident must be held to have arisen out of employment and in the course of employment.
29. The decision of this Court in the case of Broach Municipality v. Raiben Chimanlal 1987 ACJ 698 (Gujarat), is very important and relevant which is directly applicable to the facts of the present case. In the said case the deceased was a driver who was driving tractor. He was performing his duty as a tractor driver from 7 a.m. He worked up to 2 p.m. It was held that by no stretch of reasoning it can be said that his work does not involve stress and strain. He was required to drive the tractor with trailer and he had to move from place to place in the town for collecting the dirt and refuse. It was found that such type of work would certainly aggravate the disease. In the result, this Court found, relying on the observations of the Division Bench of this Court in the case of Amubibi v. Nagri Mills Co. Ltd. 1976 ACJ 507 (Gujarat), that there was proximate nexus between the death and the work of the driver.
30. It may also be mentioned that it was seriously contended that ordinarily work of a driver would not entail stress or strain. In view of the aforesaid decisions and the facts of the present case, it is explicitly clear that work of a driver would, undoubtedly, involve stress and strain. In this connection, reliance is placed by the learned Counsel for the applicants on a decision rendered in the case of Amri Naran v. Saukem Employees Co-op. Society Ltd. 1987 ACJ 451 (Gujarat). Relying on the said decision, it is contended that even milking buffaloes would also involve stress and strain. In the said case relied on behalf of the original applicants, 'the injury had been caused to a workman who was engaged in milking buffaloes. From the evidence in that case it was found that the workman had died after he had joined the duty and he had died during the course of employment. Therefore, the question which had arisen before this Court in that case was whether the accident which arose could be said to be an accident out of employment and due to that accident did the workman die? In other words, the question was, was there any proximate relation between the cause of death and the accident ? Admittedly, the deceased who was working in a dairy farm while going to milk buffaloes stumbled, fell down and died. The deceased workman was required to look after the buffaloes and milk them. It was held by this Court that this work is surely bound to cause stress and strain on the workman.
31. In a Division Bench decision of this Court, rendered in the case of Kikubhai v. Mafatlal Fine Spinning & Manufacturing Co. Ltd. 1982 ACJ. (Supp) 67 (Gujarat), it was held that the provisions of Section 3 of the Act should be broadly and liberally construed. The expression 'accident' denotes an unlocked for mishap or an untoward event which is not expected. Accident, therefore, must mean any unintended and unexpected occurrence which produces hurl or loss. Any internal injury would also amount to an injury Claimant in that case was suffering from chest pain and it was found that he was also suffering from heart trouble. He was advised complete rest. It was observed by the Division Bench of this Court that such heart trouble was accidental and that it was not expected and it was also an internal injury. It was also held that there was causal connection between the injury and the work that the workman was doing. In short, it was found by this Court that there was causal connection between the injury and the work that the workman was doing. If the workman while working strenuously receives injury to the heart, all the material ingredients of Section 3 are established.
32. In the light of the facts and circumstances of the present case, the death of the S.T bus driver, Fakirmohmed, was attributable to the work or employment in which he was engaged at the relevant point of time. It can safely be said from the evidence on record that it was referable to the work that the deceased was doing. The word 'employment' again is not statutorily defined. It is not to be defined in a narrow manner. It is to be construed 'broadly and liberally'. It is not to be considered by reference to the duties of the work alone but the character, conditions, accidents and special risks involved in the employment are to be considered. All these facts and circumstances are required to be taken into consideration in order to ascertain and find out as to whether the accident in question arose out of and in the course of the workman's employment. There is clear evidence on record to show that the deceased had suffered with headache. He had to undergo mental stress and strain while and in all of a sudden, applying brakes so as to save a child from being run over. The rupture of aneurism must have preceded by some sort of ailment arising out of mental stress and strain. Admittedly, the deceased died in the course of his employment. There is sufficient evidence to infer that the deceased died on account of the injuries sustained by him out of and in the course of his employment. Thus, it is very clear from the evidence on the record of the present case that there is a proximate nexus between the death and the employment in which the deceased was engaged. Therefore, both the conditions entitling the victim workman to claim compensation under Section 3 of the Act are fully satisfied. The finding of the learned Commissioner that the death of the deceased workman arose out of and in the course of employment is fully justified. It is, therefore, required to be confirmed. The challenge against this part of the award, in First Appeal No.1721 of 1982, is required to be dismissed with costs.
33. Next it brings into the sharp focus the question as to whether the penalty under Sakinabibi and Anr. v. Gujarat State Road Transport Corporation Section 4-A(3) of the Act should be awarded or not. The original applicants have challenged the award of the learned Commissioner contending that the penalty and interest should have been awarded. The learned Commissioner had considered this aspect and came to the conclusion that looking to the facts and circumstances of the instant case, there was justification in delaying the depositor the amount of compensation. This finding of fact is justified in the special circumstances of the present case. Under Section 4-A(3) of the Act, penalty is leviable only in cases of unjustifiable delays. There appears to be no unjustifiable delay in the instant case. Where any employer is in default in paying the compensation, due under the Act, within one month from the date it fell due, the Commissioner may direct that in addition to the arrears, a further sum not exceeding 50 per cent of such amount should be paid or recovered from the employer by way of penalty: If the Commissioner finds in the facts of the case that there was justification in depositing the amount of compensation late, then in that case, penalty may not be ordered. The discretion given to the Commissioner is required to be exercised considering the facts of each case. The expression 'may direct' would mean, the Commissioner is given discretionary power in awarding penalty in the light of the facts of each case. The learned Commissioner found that the opponent employer Corporation bonafide believed that the death of deceased S.T. driver had not arisen out of employment and, therefore, the amount was not deposited with the Commissioner. It is also held by the learned Commissioner that looking to the facts of the instant care, the question for considering a triable issue and an arguable case was there and, therefore, the employer Corporation was fully justified in not depositing any amount immediately after the accident. In short, the learned Commissioner took a view that delay and default on part of the opponent employer Corporation was justifiable. This finding of fact is required to be . confirmed in the peculiar facts of the present case. There is no reason why the view taken by the learned Commissioner should be interfered with. Therefore, the finding with regard to the penalty arrived at by the learned Commissioner is justified and there is not any other material or reason which would call for interference with this finding. Therefore, it is required to be confirmed.
34. Lastly, it is seriously contended by the learned Counsel, Mr.Jani, for the original applicants that at least interest should have been awarded on the amount of compensation in view of the period consumed in the proceedings under Section 3 of the Act for getting compensation. In order to substantiate his contention, he has also relied on a decision of this Court, rendered in the case of Union of India v. Shantaben 1985 ACJ 818 (Gujarat). In the said case this Court had found that the employer was liable for the payment of simple interest at the rate of 6 per cent. It was found that there was no justification for not granting simple interest at the rate of 6 per cent per annum. The principle enunciated in the said decision is not in dispute. However, the question requires, to be considered as to whether interest, should be awarded in the present case or not in the light of the facts of the present case. No doubt, an award of interest unlike penalty would assume different dimensions in the present case in view of the long period consumed in getting compensation. The amount of compensation which the applicants arc found to be entitled to, undoubtedly, remained in arrears almost for a period of three years. The incident had occurred on 2.11.1979 and the amount, as per the award of the learned Commissioner, came to be deposited in November 1982 and it was withdrawn by the original applicants pursuant to the order of this Court passed on 4.11.1982 in the Civil Application No. 4211 of 1982, Therefore, the due amount of compensation remained with the opponent employer corporation which otherwise would have been utilised by the original applicants Therefore, considering the fact that the amount which is found payable under the Act to the original applicants remained in arrears and in the enjoyment of the opponent employer Corporation, it would be reasonable to award interest. The learned Commissioner has failed to consider this aspect. Therefore, the original applicants are entitled to interest at the rate of 6 per sent from the date of accident, i.e., 2.11.1979, till the payment to the original applicants. Therefore, the First Appeal No. 1718 of 1982 filed by the original applicants is required to be partly allowed to that extent with costs.
35. Since the amount of compensation was deposited by the opponent employer Corporation as per the award of the learned Commissioner and which is withdrawn pursuant to the direction of this Court in the aforesaid Civil application, the question of giving further direction with regard to the deposit of the amount in any security would not arise.
36. In the result, First Appeal No.171-8 pf 1982 is partly allowed with costs and First Appeal No. 1721 of 1982 stands dismissed with costs.