Punjab-Haryana High Court
H.S.E.B vs Smt.Nirmala Kumari And Others on 5 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
FAO No.955 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.955 of 1989
Reserved on: 26.09.2013.
Date of Decision: 05.10.2013
H.S.E.B
....Appellant
Versus
Smt.Nirmala Kumari and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment? Yes
2) To be referred to the Reporters or not? Yes
3) Whether the judgment should be reported in the Digest?Yes
Present: Mr. Adish Gupta, Advocate,
for the appellant.
Mr. Manoj Sharma, Advocate,
for Mr. C.B.Goel, Advocate,
for the respondents.
****
PARAMJEET SINGH, J.
Instant appeal has been filed for setting aside the order dated 15.09.1988 passed by the Commissioner under Workmen's Compensation Act, 1923 (in short "the WC Act") whereby the appellant has been directed to pay compensation of Rs.99,380-88 to the respondents herein and also imposed 30% penalty on the principle amount and interest @ 6% per annum on the amount of compensation Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 2 from 1.8.1986 till its realization.
Shorn of unnecessary details, the facts relevant for disposal of the present appeal are to the effect that Nirmala Kumari widow and minor sons of deceased-Amarnath Sehgal filed an application before the Commissioner under the WC Act. Mr. Amarnath Sehgal (since deceased) was an employee of Haryana State Electricity Board, Chandigarh. He died on 23.06.1986 in an accident during the course of his employment. At the time of accident, he was 50 years old and drawing the salary of Rs.1400/- per month. The Commissioner sent notice to the appellant herein. The appellant appeared and filed reply denying the compensation. Rejoinder to the reply was also filed by the respondents herein. On the pleading of parties, the Commissioner framed the issues which read as under:
"(i) Whether the applicants are entitled to claim compensation in the claim application, if so, to what amount?.
(2) Relief."
After affording sufficient opportunities to the parties, the Commissioner under the WC Act came to the conclusion that Amarnath Sehgal (since deceased) had died during the course of his employment and this fact was even admitted by the witnesses produced by the appellant herein. Since the accident was not denied, rather admitted, vide order dated 15.09.1988, the Commissioner under the WC Act calculated the compensation to the tune of Rs.99,380-88 paise and also came to the Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 3 conclusion that the appellant herein had not shown any good cause for not depositing the amount of due compensation, therefore, imposed 30% penalty on the principal amount and also allowed 6% interest on the amount of compensation from 01.08.1986 till realization. It was also directed that the amount be deposited within 30 days. Thereafter, the appellant herein moved application for modification of the award stating that a wrong calculation had been made. The application was disposed of vide order dated 26.12.1988 with a direction to the appellant to make payment of Rs.86,210-40 paise to the respondents herein.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant has contended that the accident occurred on 23.06.1986, ex gratia amount worth Rs.1,000/- was given on 24.06.1986 and advance compensation to the tune of Rs.5,000/- was deposited on 25.06.1986, as such there is no delay in the deposit/payment of compensation. The learned counsel has further contended that interest and penalty cannot be ordered from date of accident/death. A notice under Sections 10/10-A(1) of the WC Act is required to be given before imposing penalty. The learned counsel has further contended that Section 19 of the WC Act has the effect of sustaining such act of the employer to pay compensation till adjudication.
On the other hand, learned counsel for the respondents has Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 4 vehemently opposed the contentions raised by learned counsel for the petitioner and contended that the compensation and interest awarded by the Commissioner are in accordance with law and the penalty has also been imposed correctly. No notice is required to be given before imposing the penalty, as the employee had expired on 23.06.1986 and the accidental death was in the knowledge of the employer i.e. the appellant.
I have given my conscious thought to the contentions raised by the learned counsel for the parties.
In view of the contentions of the parties and from the perusal of record, the following questions arise for consideration:
(i) What is the meaning of words "fall due" appearing in Section 4-A (ii) of the W.C.Act and whether the compensation is to be paid from the date of death, date of accident or date of adjudication of claim?
(ii) Whether notice under Sections 10/10-A (1) of the W.C. Act is required to be given before awarding interest and penalty?
Re : Question No.(i):
Admitted facts of the case are that accidental death during the course of employment occurred on 23.06.1986, ex gratia amount worth Rs.1,000/- was given on 24.06.1986 and advance compensation to the Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 5 tune of Rs.5,000/- was deposited on 25.06.1986. Before I answer this question, it would be appropriate to reproduce Section 4-A of the W.C. Act which reads as under:
4-A Compensation to be paid when due and penalty for default (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.
A perusal of this section reveals that its aim is to curb tendency of the employer to avoid payment of compensation by adopting dilatory tactics on fickle grounds and legal technicalities thereby denying immediate relief to workman or his dependants. This section casts a liability on the employer to pay compensation in terms of provisions of Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 6 Section 4 of the WC Act immediately on sustaining of injury by the workman and in the event of employer's failing to do so or taking a false or flimsy plea or rejecting the workman's request for compensation or forcing the workman for making an application to the Commissioner for settling the claim, the Commissioner is empowered to order payment of interest and penalty in addition to the compensation awarded.
It is not in dispute that husband of respondent no.1 and father of respondents no.2 and 3 was, during the relevant period, a workman within the meaning of Section 2 (n) of the W.C.Act and he died during the course of employment. The question for determination is as to when the compensation under Section 4-A of the W.C.Act can be said to have fallen due. In the present case, the workman died on 23.06.1986 and immediately upon his death, the compensation became due to him within the meaning of Section 4-A (i) of the W.C.Act. This cannot be kept under suspension or deferred until the determination is made by the Commissioner under Section 19 of the WC Act. In Pratap Narain Singh Dev v. Srinivas Subata AIR 1976 SC 222, the Hon'ble Supreme Court held that it was the duty of the employer to pay compensation at the rate provided in Section 4 of the W.C. Act, as soon as the personal injury is caused to the worker and to be calculated as provided by Section 5 of the W.C.Act. As soon as the death of a workman is caused, the employer having failed to pay compensation, the liability incorporated for the payment of interest and penalty as contemplated Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 7 under Section 4-A (3) of the W.C.Act comes into operation. It was also laid down that there was no substance in the argument that the liability of the employer under Section 4 of the W.C.Act to pay compensation in respect of injury was suspended, until after the settlement contemplated by Section 19 of the Act. In the present case, the appellant did not deposit the compensation immediately after the death of Amarnath Sehgal and the respondents had to approach the Commissioner for compensation. Section 4-A (3) of the W.C. Act provides that where employer is in default in paying the compensation due under the W.C. Act within one month from the date it fell due, there accrues liability to pay interest and penalty. In Pratap Narain Singh Dev (supra), the Hon'ble Supreme Court held that the compensation becomes due from the date of death and in default to pay compensation liability to payment of interest accrues one month thereafter. In New India Assurance Company Limited v. Manphool Singh and Ors. 2009 ACJ 458, this Court has held as under:
"In view of the law laid down by the Hon'ble Apex Court regarding the binding precedent under Article 141 of the Constitution of India, I am of the considered view that the judgment in the case of Pratap Narain Singh Deo v. Srinivas Sabata (supra) will create a binding precedent regarding the interpretation of expression "falls due" under Section 4A(1) of the Act and amount of compensation becomes due on expiry of one month from the date of accident. Thus, interest becomes payable not from the date of order/award of the Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 8 Commissioner, but on expiry of one month from the date of injuries sustained by the workmen. Accordingly, I uphold the judgment of the Commissioner and dismiss this appeal with no order as to costs".
In the present case, the compensation became due on 23.06.1986 which was to be paid within a month thereafter. Therefore, there is no error of law on the part of the Commissioner in directing the payment of penalty besides interest over and above the compensation due to fault of the employer in payment of compensation within stipulated period of one month.
Re: Question No.(ii):
The next question arises whether notice under Section 10/10-A of the W.C.Act is required to be given before imposing penalty. Sections 10 and 10-A of the W.C.Act reads as under:
"10. Notice and Claim. - (1) No claim for compensation shall be entertained by a Commissioner unless notice of the accident has been given in the manner hereinafter provided as soon as practicable after the happening thereof and unless the claim is preferred before him within two years of the occurrence of the accident or, in case of death, within two years from the date of death:
Provided that, where, the accident is the contracting of a disease in respect of which the provisions of sub-section (2) of Section 3 are applicable, the accident shall be deemed to have Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 9 occurred on the first of the days during which the workman was continuously absent from work in consequence of the disablement caused by the disease.
Provided further that in case of partial disablement due to contracting of any such disease and which does not force the workman to absent himself from work the period of two years shall be counted from the day the workman gives notice of the disablement to his employer:
Provided further that if a workman who, having been employed in an employment for a continuous period, specified under sub- section (2) of Section 3 in respect of that employment, ceases to be so employed and develops symptom of an occupational disease peculiar to that employment within two years of the cessation of employment, the accident shall be deemed to have occurred on the day on which the symptoms were first detected;
Provided further that the want of or any defect or irregularity in a notice shall not be a bar to the entertainment of a claim-
(a) If the claim is preferred in respect of the death of a workman resulting from an accident which occurred on the premises of the employer, or to any place where the workman at the time of the accident was working under the control of the Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 10 employer or of any person employed by him, and the workman died on such premises or at such place, or on any premises belonging to the employer, or died without having left the vicinity of the premises or place where the accident occurred, or
(b) if the employer or any one of several employers or any person responsible to the employer for the management of any branch of the trade or business in which the injured workman was employed had knowledge of the accident from any other source at or about the time when it occurred:
Provided further that the Commissioner may entertain and decide any claim to compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred in due time as provided in this sub- section, if he is satisfied that the failure so to give the notice or prefer the claim, as the case may be, was due to sufficient cause.
10-A Power to require from employers statements regarding fatal accidents (1) Where a Commissioner receives information from any source that a workman has died as a result of an accident arising out of and in the course of his employment, he may send by registered post a notice to the Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 11 workman's employer requiring him to submit, within thirty days of the service of the notice, a statement, in the prescribed form, giving the circumstances attending the death of the workman and indicating whether in the opinion of the employer, he is or is not liable to deposit compensation on account of the death."
It is not in dispute that the deceased was the employee of the H.S.E.B and his death took place during the course of employment and on account of employment, the fact of his death was immediately known to the employer. Admittedly, it is own assertion of the appellant that ex gratia amount was paid to the dependants of the deceased on 24.06.1986 and advance compensation worth Rs.5,000/- was also paid on 25.06.1986 meaning thereby that the appellant had the knowledge of death on these dates. In that situation, in view of provisions of the W.C.Act, the employer should have reported the matter to the Commissioner. Admittedly, in the present case, respondent no.1 is widow and respondents no.2 and 3 are minor children of deceased-
Amarnath Sehgal. There is none else to look after them. The compensation was not paid even during the proceedings before the Commissioner. The widow had to move from pillar to post in order to get compensation. Even, the authorities of H.S.E.B have challenged the order of the Commissioner. It was the duty of the employer to pay the compensation in view of provisions of the W.C.Act. Having failed to do Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 12 so, ultimately the respondents had to file application under Section 5 of the W.C.Act before the Commissioner.
The contention of learned counsel for the appellant is that notice was required to be given before imposing the penalty under Section 10, but no notice was given. Now the question arises what is the meaning of words "unless notice of the accident has been given in the manner hereafter provided as soon as practicable". The words "as soon as practicable" appearing in Section 10 of the W.C Act must depend upon the circumstances. Apparently, this Section appears to be in favour of the employer. It says that notice of the happening must be given to the employer as soon as practicable. It is to be seen whether in the circumstances of the present case, notice was required to be given to the employer or the employer has already knowledge/notice regarding the death.
In the present case, the employer had paid ex gratia amount as well as advance compensation to the dependants of the deceased- workman. All the circumstances clearly prove that the employer have/had knowledge of the accidental death. It means the accidental death of workman was already in the knowledge of the H.S.E.B, as such the appellant had the knowledge of the same. In such circumstances, absence of notice is no bar to the claim. In my opinion, fourth proviso to Section 10 of the W.C.Act provides in clear terms that if there is prior knowledge to the employer about the accident of a workman from any Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 13 other sources, there is no necessity of notice, claim can be entertained. The knowledge of officials of H.S.E.B about the accident, who had paid ex gratia amount and advance payment to the dependants is held to be sufficient for meeting the requirement of Section 10 of the W.C.Act. In these circumstances, a notice in writing was not necessary.
Now the question arises whether provision of Section 10-A of the W.C. Act has any relevancy to the controversy in hand. Section 10- A of the W.C. Act is not applicable to the application filed by the dependants of a workman for claiming the compensation. Under this section, the Commissioner is competent to make such enquiry as he deems fit and can come to the conclusion that what is the liability of the employer for payment of compensation and he can also determine the compensation. In other words, suo motu powers can be exercised by the Commissioner. There is no question of the amount of compensation being determined at the instance of any party i.e the employer or the employee. As per Section 10-A (1) of the Act, the Commissioner acts in his administrative capacity, he is not adjudicating a claim filed before him. Rather if suo motu notice is issued by the Commissioner to the employer of the deceased-workman, the employer is required to furnish his statement within 30 days on receipt of Commissioner's notice and the Commissioner cannot extend the time frame. Penalty for failure to send statement to the Commissioner under Section 10-A (1) is laid down in Section 18-A (1) (b) of the W.C.Act which envisages fine also. Since in Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document FAO No.955 of 1989 14 the present case, the dependants of the deceased-workman had filed a claim before the Commissioner, therefore, Section 10-A (1) of the W.C.Act is not at all applicable. It applies where the Commissioner takes suo motu notice of such death.
Relief:
In view of above discussion, this Court holds that it was the duty of the appellant-employer to pay compensation immediately to the dependents-respondents on receipt of knowledge of death or from the date of death, not from the date of adjudication. However, interest and penalty is required to be paid with effect from the date after one month of the date of accident/death. The commissioner has rightly awarded the compensation and interest from 01.08.1986 till realization @ 6% per annum and 30% penalty on the principal amount.
In view of above, the instant petition is dismissed with costs of Rs.5,000/-.
(Paramjeet Singh) Judge October 05, 2013 parveen kumar Kumar Parveen 2013.10.10 18:34 I attest to the accuracy and integrity of this document