Himachal Pradesh High Court
H.P. State Forest Corporation Ltd. vs Ganu Devi And Ors. on 23 July, 2004
Equivalent citations: I(2005)ACC725, 2006ACJ624, (2005)IILLJ827HP
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. When CMP No. 66/2004 came up for consideration learned counsel for the parties prayed that keeping in view the limited substantial question of law involved in this case, this appeal may be taken up for final hearing and disposed of finally. As such this case was heard at their joint request.
2. When hearing commenced learned counsel for the parties submitted that only substantial question of law involved in this case is:
"Whether the impugned award is contrary to the admitted and proved facts and is thus perverse which could not have been arrived at in any situation."
3. The appellant is a Company incorporated under the Companies Act. It is an Agent of the State so far exploitation, conversion and trade in timber in the State of Himachal Pradesh is concerned. With a view to carry out its activities, it engages different Agencies/Contractors. Respondent No. 2 was engaged as a Labour Supply Mate by the appellant for extraction and carriage of timber from Rupi Forest.
4. Gopal Singh original claimant filed a petition under the Workmen's Compensation Act, 1923 before Sub Divisional Officer (Civil) Nichar at Bhawa Nagar, District Kinnaur, H.P. exercising the powers of Commissioner, under the Workmen's Compensation Act. Case setup by him was that while he was engaged as a Workman by the respondent No. 2 and during the course of his such employment an accident took place on May 26, 1997. This resulted in compound fracture being sustained by him in his leg. His further case was that he was 44 years of age and was getting Rs. 2,100/- per month, i.e. @ Rs. 70/- per day. After the accident Gopal Singh was admitted in Referral Hospital at Rampur. Subsequently he was referred to IGMC, Shimla where he remained admitted from May 29, 1997 to June 21, 1997. Because of this accident he could not earn his livelihood and also incurred Rs. 21,000/- on his medical treatment. As such he claimed compensation to the tune of Rs. 2 lakhs. Appellant as well as respondent No. 2 when put to notice denied having any obligation for payment of compensation. Commissioner below after framing issues finally disposed of the case.
5. Record of the Commissioner below shows that Gopal Singh above named died during the pendency of the claim petition. An application (which is at page 131 of the Commissioner's file), was presented intimating this fact and also for bringing his widow and three sons on record. It was accepted and admitted on August 24, 2004. Finally petition was allowed and compensation was awarded holding the appellant liable being principal employer with further direction that respondent No. 2, Bhagwan Singh Mehta shall be liable to indemnify the principal, i. e. the appellant.
6. In the award that was passed by the Commissioner below name of respondents (i) to (iv) was not reflected. Reason being that after the passing of the order on August 24, 2000 and the application of these respondents having been accepted and admitted record was not corrected. As such after admission of appeal notice as issued to Gopal Singh only. When it was reported that he has since died, it was thereafter that CMP Nos. 525 and 526 of 2003 were filed which were allowed on November 6, 2003. Suffice it to say in this behalf that there was no negligence on the part of the parties in this case, fault was that of the Commissioner below, in not having reflected the legal representatives in the award despite order dated April 24, 2003 supra.
7. Sh. Neel Kamal Sood, learned counsel for the appellant submitted that accepting everything for the sake of argument to be correct against his client but without conceding, still the impugned award on the basis of the law applicable on the date of accident is not only illegal and contrary to law, but appears to have been passed ignoring the provisions of law then applicable, by the Commissioner below. According to him rights of the parties are fructified on the date of accident which is relevant for assessing the compensation. Since the change in law enhancing liability for payment of compensation is not made retrospectively applicable by the Legislature, as such it has to be taken as prospectively applicable. According to him under Section 4(1) (Explanation-II) monthly wage of a workman like deceased Gopal Singh is to be seen on the date of accident i. e. May 26, 1997. On this date for the purposes of calculating compensation it was Rs. 2,000/- per month. Its 50% comes to Rs. 1,000/- per month. Keeping in view his proved age to be 44 years, relevant factor under Schedule-IV of the Act is Rs. 172.20. When 1000 is multiplied by Rs. 172.52, figure comes to Rs. 1,72,000/-. Its 15% works out to Rs. 25,800 (1,72,000/- x 15/100= Rs. 25,800/-). Accident had taken place on May 26, 1997. Compensation became payable on June 25, 1997. Amount was deposited in this Court in the month of September, 2002. Thus, payment of the compensation remained in default for a period of about 62 months. Therefore, that respondents 1(i) to (iv) are entitled to interest @. 12% p.a. on this amount which comes to Rs. 12,900/-. And not from the date of petition as allowed vide impugned award.
8. What is the relevant date for calculating the compensation i. e. whether it is the date of accident or the date of pronouncement of the order granting compensation; this matter is no more res integra in view of a Division Bench Judgment of this Court in United Insurance Company Ltd. v. Nako alias Naiku Devi and Ors., 1996-II-LLJ-1015 (HP-DB), and another decision dated July 16, 2004 in the case of Executive Engineer, B&R, HPPWD, Solan and Anr. v. Kewal Ram, FAO No. 621 of 2003, decided on July 16, 2004.
9. Faced with this situation Sh. Sood, learned counsel for the respondents 1(i) to (iv) submitted that there is no justification in the delay of payment by either the appellant or respondent No. 2. As according to him appellant is an extended arm of the Welfare State being wholly owned and controlled by the State, who also has the pervasive control over its affairs. As such it was expected to act as model employer. Instead of acting as such, appellant chose to fight the case tooth and nail and thus denied the benefit of compensation to deceased Gopal Singh during his life time. Therefore, this is a fit case for exercising discretion by this Court by levying penalty at 50% of the compensation as may be assessed by this Court. This plea has been contested both by the appellant, as well as on behalf of respondent No. 2. According to the learned counsel penalty is not to be allowed as a matter of course. Further per them, respondents 1(i) to (iv) did not challenge the non-grant of penalty to them by the Commissioner below. As such according to both the learned counsel plea of Sh. K.D. Sood needs to be rejected.
10. As noted hereinabove, compensation for injury to Gopal became payable on June 26, 1997. It was deposited somewhere in the month of September, 2002. In case, either the appellant and/or respondent No. 2 felt that both of them are not liable for payment of any compensation, least they should have done was to have deposited the amount keeping in view the nature of injury and permanent disability to the lower limb of deceased Gopal Singh which he had suffered during the course of his employment with respondent No. 2.
11. Under law i.e. Contract Labour (Regulation and Abolition) Act, 1970, the appellant is the principal employer and respondent No. 2 was a Contractor working under it. Therefore, in accordance with the provisions of this Act, it was the primary liability of the appellant to have deposited/paid the amount in question. Compensation assessed was deposited, so as to meet the requirement of Section 30 of the Workmen's Compensation Act, 1923 to maintain this appeal. In addition to this Workmen's Compensation Act is a beneficent piece of labour Legislation. Technical Rules of evidence as well as Code of Civil Procedure are not applicable to these proceedings. For taking this view reference is being made to the following observations in D. Venu and Ors. v. Senen Fernandez alias Jose and Ors., 1995-II-LLJ-1113 of the Division Bench of Kerala High Court at p. 1115:
"6. We are firmly of the view that the Evidence Act would apply only to judicial proceedings in or before any Court and that administrative or quasi judicial Tribunals are only fact-finding bodies, and the method of fact-finding varies from that sanctioned by law in Courts. If it is insisted that the doctor should be examined then perhaps, in this particular case, the very purpose of the Act will get defeated and the Commissioner will not be able to adjudicate on the issue before him. The learned Judges of the Division Bench in United India Insurance Co. Ltd. v. Sethu Madhavan, 1993-I-LLJ-142 (Ker-DB) have held:
"The administrative and quasi judicial proceedings are not fettered by technical rules or evidence and the Tribunals are entitled to act on materials which may not be accepted as evidence in a Court of law. But they should adhere to the Rules of natural justice."
7. Considering all the materials we are of the view that the Commissioner did not commit any error in accepting the medical certificate without the doctor being examined."
12. Moreover, it is the duty of the Commissioner to ensure that the compensation is (sic) assessed by him in accordance with the provisions of the Act. Therefore, with a view to do substantial justice between the parties and also to ensure that the Compensation assessed is as per the provisions of the aforesaid Act of 1923, and also there being no justification in delay on the part of either the appellant or respondent No. 2 so far as deposit of compensation is concerned, it is felt that penalty at 50% of Rs. 25,800/- needs to be levied which comes out to Rs. 12,900/-.
13. At this stage another plea needs to be noted that was urged on behalf of the appellant, that the impugned award is prima facie perverse and arbitrary. According to Mr. Sood, Gopal Singh had instituted the petition for the grant of compensation to him in respect of the injury sustained by him as a result of the accident in question. He survived till the date of his death. Record of the Commissioner below shows that as per certificate Exhibit PW-9/A, disability as a result of the accident in question suffered by the deceased was assessed at 15% to his left lower limb. According to Mr. Neel Kamal Sood, learned counsel, deceased is entitled to compensation in respect of his injuries only which comes to Rs. 25,800/- as calculated in the preceding paras of this judgment. He further urged that there is no nexus between the injury sustained by Gopal Singh on May 26, 1997 and his death subsequently on June 11, 2000. In fact in the application filed by his widow and three sons it has been clearly mentioned 'that the death was due to Jaundice'. In the face of this position, plea of Sh. K.D. Sood that death was due to the accident in question and/or there was any nexus between the accident and death has been raised simply to be rejected.
14. No other point is urged.
15. In view of the aforesaid discussion, this appeal is partly allowed. As a result of it, order dated October 16, 2001 in Case No. 1/98, titled as Gopal Singh v. H.P. State Forest Corporation Ltd. and Anr., passed by Commissioner under Workmen's Compensation Act, (SDO (C) Nichar at Bhawanagar), is modified. Thus holding that respondents 1(i) to 1(iv) are entitled to a total compensation of Rs. 25,800/- + Rs. 12,900/-+ Rs. 15,996/- = Rs. 54,696/- only. This amount is inclusive of compensation, interest and penalty (Rs. 25,800/- as compensation Rs. 15,996/- as interest and Rs. 12,900/- as 50% penalty). Accordingly while partly allowing this appeal it is further ordered that this amount will be equally shared by respondents 1(i) to (iv) who are further held entitled to proportionate interest on this amount because the same is invested with the Registry of this Court. Registry will remit this amount with proportionate interest to the Bank accounts of the said respondents, numbers whereof Mr. Sood submitted will be filed within two weeks. Remaining amount also with proportionate interest will be remitted to the bank account of the appellant number whereof Sh. Neel Kamal Sood submitted will also be furnished within two weeks. So far indemnification of the appellant by respondent No. 2 is concerned findings recorded in this behalf by the learned Commissioner below are upheld, despite an attempt having been made by Sh. Bhupinder Gupta, learned senior counsel to hold that his client is not liable.