Gujarat High Court
United India Insurance Company Limited vs Rajshi Shida Karmur on 17 July, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/FA/3041/2017 ORDER DATED: 17/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3041 of 2017
With
R/CROSS OBJECTION NO. 278 of 2023
In
FIRST APPEAL NO. 3041 of 2017
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UNITED INDIA INSURANCE COMPANY LIMITED.
Versus
RAJSHI SHIDA KARMUR & 1 other(s)
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Appearance:
MRS VASAVDATTA BHATT(193) for the Appellant(s) No. 1
for the Defendant(s) No. 1.1,1.2,1.3,2
MR PREMAL S RACHH(3297) for the Defendant(s) No. 1.1,1.2,1.3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 17/07/2023
ORAL ORDER
1. Heard learned advocate Ms.Vasavdatta A. Bhatt for the appellant and learned advocate Mr.Premal Rachh for the respondent no.1.
2. By this appeal, the Judgment and Order dated 27.04.2017 passed by the Ex-Officio Commissioner, Workmen Compensation Act, 1923 (for short "the Act"), Labour Court no.1, Jamnagar in Workmen Compensation Application Non Fatal No.17 of 2006 is Page 1 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined under challenge.
3. The relevant facts leading to this appeal are that the injured respondent no.1 who succumbed to injury during the pendency of this appeal was serving as a driver with the respondent no.2.
3.1. On 02.03.2005, the deceased Rajshi Shida Karmur was going to garage for repairing the axle and light of Dumper no.7452 No.GJ-10-6213. When the mechanic was repairing the key and axle of the Dumper at that time the deceased was standing near rear wheel and checking nut bolts, suddenly the Dumper started automatically and ran over the deceased and the deceased sustained injury and Workmen Compensation Application Non Fatal No.17 of 2006 was filed claiming compensation of Rs.4,40,540/-.
3.2. The learned Judge after considering oral and documentary evidence of both the sides awarded Rs.2,51,430/- towards compensation to be recovered from the employer and the Page 2 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined appellant Insurance Company and further ordered to pay interest at the rate of 9% from the date of accident i.e. 02.03.2005 to the date of filing of the application by the respondent no.2 and from 03.07.2006 till payment of the compensation by the Insurance Company.
3.3. Penalty of Rs.1,00,572/- was also levied upon the respondent no.2 being 40% of the amount of compensation.
3.4. Being aggrieved and dissatisfied with the aforesaid award, the Insurance Company has preferred this appeal mainly on the ground that the Insurance Company could not have been saddled with the liability to pay the interest, whereas the claimant has filed cross-objection to award simple interest at 12% per annum as per Section 4A(3)(b) of the Employee's Compensation Act, 1923.
3.5. Following substantial questions of law are framed by the appellant:-
Page 3 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined "(1) Whether the Commissioner of Workmen Compensation has jurisdiction to proceed with the Non Fatal Application filed by the respondent no.1?
(2) Whether the applicant can be termed as "Workmen" as per Section 2(1)(n) of the Workmen Compensation Act, 1923?
(3) Whether the learned Commissioner has erred in appreciating that the mandatory notice under Section 10 of the Workmen Compensation Act, 1923 is not required to be given and therefore the claim is maintainable?
(4) Whether the learned Commissioner has erred that the respondent nos.1 and 2 have not filed claim form with necessary documents before the Insurance Company as the Insurance Company is not liable to pay the interest?"
3.6. Apart from the above substantial questions of law, the grounds of appeal have been raised with regard to Page 4 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined relationship of the employee-employer with regard to the history of injury and other evidence led by the injured workmen at the relevant point of time.
4. Learned advocate Ms.Vasavdatta A. Bhatt for the Insurance Company submitted that the learned Commissioner has not appreciated the evidence on record to the effect that when the deceased was injured, the Dumper was not being driven but it was lying in the garage for repairing and therefore, the Insurance Company is not liable to pay any compensation. It was also submitted that no notice under Section 10 of the Employee's Compensation Act, 1923 was served upon the Insurance Company and therefore the Court below has committed an error in holding that such notice is not required to be issued to the Insurance Company.
4.1. It was further submitted that the Insurance Company is not liable to pay the interest ordered by the learned Judge from Page 5 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined 03.07.2006 till the date of payment at the rate of 9% as the Insurance Company is not responsible for non-deposit of the compensation as required under Section 4A of the Act.
4.2. Learned advocate Ms.Bhatt submitted that merely because the driver was injured during the course of repairing, the Insurance Company cannot be made liable for payment of compensation.
4.3. Learned advocate Ms.Bhatt also submitted that there is a discrepancy in the number of the Dumper stated in the Form No.54 and the C-Summary report filed by the Police as no."3" is overwritten in the number 6213 in Form No.54. It was therefore submitted that the number of the Dumper is tampered in the Form and therefore the Insurance Company is not liable to pay the compensation.
5. On the other hand learned advocate Mr.Premal Rachh for the legal heirs of the late Rajshi Shida Karmur submitted that as Page 6 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined per the 4th proviso to Section 10 of the Act, want of any defect or irregularity in notice cannot be made bar of entertainment of a claim. It was submitted that the date of knowledge of the accident to the respondent no.2 is enough as per Clause
(b) of the proviso to Section 10 of the Act and accordingly, the Court below has come to the conclusion that the respondent no.2 was aware about the occurrence of the accident and as such, there was no mandatory requirement to serve the notice under Section 10 of the Act.
5.1. Learned advocate Mr.Rachh submitted that the the interest is for non deposit of the compensation by the employer and the liability of the payment of the compensation is on the Insurance Company under the Insurance Policy. It was pointed out from the Insurance Policy on the record at mark 18/1 to the effect that there is no clause in the Insurance Policy to exclude the liability for payment of interest. It was therefore submitted that the Insurance Company is rightly held Page 7 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined liable to pay the interest atleast from the date of filing of the Claim Petition by the respondent no.1.
5.2. In support of his submission, reliance was placed on the decision of the Hon'ble Supreme Court in case of Manju Sarkar Vs. Mabish Miah reported in 2014 (14) SCC 21, wherein the Apex Court has held as under:
"13. A contention was raised by the learned counsel for the Respondent No.3 Insurance Company that they are not liable to pay the interest component and reliance was placed on the decision of New India Assurances Co. Ltd. Vs. Harshad Bhai Amrut Bhai Modhiya and another [(2006) 5 SCC 192] In the facts of the case on which the said decision arose, the contract of insurance entered into between the parties contained a proviso that the insurance granted is not extended to include any interest. In the present case there is nothing on record to show that respondent Page 8 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined No.3 Insurance Company either pleaded about existence of such a clause in the contract of insurance or led any evidence to the said effect and hence the said decision will not help respondent No.3 in any way and the contention raised is devoid of merit."
5.3. It was also submitted that in case of Poonam Devi Vs. Oriental Insurance Co. Ltd. reported in 2020 (4) SCC 55 after following the aforesaid decision in case of Manju Sarkar (Supra) the Apex Court has held as under:
"11. Coming to the facts of the present case, the deceased was driving the truck of respondent no.2 from Ambala to Meerut. Indisputably he was in the course of his employment. We can take judicial notice of the fact that considering the manufacturer's specification, the cabin of the truck was not air Page 9 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined conditioned and would have been a baking oven in the middle of the afternoon in the sultry monsoon heat of June 2003, when the temperature was touching 42.60C in Yamunagar (Haryana) (source: weatheronline.in). It was a compulsion for the deceased to stay fresh and alert not only to protect the truck of respondent no.2 from damage but also to ensure a smooth journey and protect his own life by safe driving. We can also take judicial notice of the fact that the possibility of the truck also requiring water to prevent overheating cannot be completely ruled out. In these circumstances, can it be said that the act of the deceased in going to the canal to fetch water in a can for the truck and to refresh himself by a bath before continuing the journey was not incidental to the employment? Every action of the driver of a truck to ensure the safety of the truck belonging to the employer and to Page 10 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined ensure his own safety by a safe journey for himself has to be considered as incidental to the employment by extension of the notional employment theory. A truck driver who would not keep himself fresh to drive in such heat would be a potential danger to others on the road by reason of any bonafide errors of judgement by reason of the heat. The theory of notional extension noticed in the Agnes (supra) and followed in Leela Bai (supra) is extracted hereunder:
"9. In the facts of the present case and the nature of evidence, there was a clear nexus between the accident and the employment to apply the doctrine of "notional extension" of the employment considered in Agnes (supra) as follows:
"...It is now well-settled, however, that this is subject to the theory of notional extension of the employer's Page 11 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined premises so as to include an area which the workman passes and repasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises. The facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all time this theory of notional extension."
5.4. It was submitted that repairing of the Dumper was nothing but a notional extension of the employment and therefore the Insurance Company is liable to pay the Page 12 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined compensation.
5.5. It was further submitted by learned advocate Mr.Rachh that the Court below ought to have awarded the interest at simple interest at the rate of 12% as prescribed under the provision of Section 4A(3)(b) of the Act and not at the rate of 9%. It was submitted that the award of interest at the simple rate of interest at 12% which is statutory requirement and therefore, the Court below has no discretion to reduce the same.
6. Having heard learned advocates for the respective parties and having considered the evidence on record. It appears that the Court below after considering the evidence on record has framed the following issues:
"(5) Considering the pleadings of both the parties, my predecessor Commissioner had framed the issues vide Exhibit-22 with regard to deciding the present case, which are as under.Page 13 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023
NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined (1) Whether the applicant Rajshi Shida Karmur was a workman of the Respondent company/ organization as provided under the Workmen Compensation Act or not?
(2) Whether the injuries caused to the applicant were caused due to an accident which took place while performing duty of the Respondent company/ organization and during the working hours?
(3) Whether a permanent disability is established or not?
(4) What was the daily/monthly income of the applicant?
(5) Whether the applicant is entitled to compensation for a permanent disability or not? If yes, what amount?
(6) Whether the applicant is entitled to receive interest and penalty? If yes, what amount?
(7) Whether the applicant is entitled to receive interest and penalty? If yes, what amount?
(8) What is the liability of the insurer?
Page 14 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined (9) What final order?"
7. It is not in dispute that the accident had occurred and the respondent no.1 at the relevant time was injured and had incurred the medical expenses. Therefore with regard to the award of compensation is concerned, the quantum is not in dispute. The only dispute is with regard to the liability to pay the compensation by the Insurance Company and for that reliance is placed under Section 10 of the Act which 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:] Page 15 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined 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 occurred on the first of the days during which the [employee] was continuously absent from work in consequence of the disablement caused by the disease:
[Provided further that in case of partial disablement due to the contracting of any such disease and which does not force the 2 [employee] to absent himself from work, the period of two years shall be counted from the day the 2 [employee]gives notice of the disablement to his employer:
Provided further that if a [employee] who, having been employed in an employment for a continuous period, specified under sub-section (2) of Page 16 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined section 3 in respect of that employment, ceasesto be so employed and develops symptoms 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 [employee] resulting from an accident which occurred on the premises of the employer, or at any place where the [employee] at the time of the accident was working under the control of- the employer or of any person employed by him, and the [employee] died on such premises or at such place, or on any premises belonging to the employer, or died without having Page 17 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined 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 [employee] 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 the 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 of [prefer] the claim, as the case may be, was due to sufficient cause.
(2) Every such notice shall give the name and address of the persons injured and shall state in ordinary language the Page 18 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined cause for the injury and the date on which the accident happened, and shall be served on the employer or upon [any one of] several employers, or upon any person 5 *** responsible to the employer for the management of any branch of the trade or business in which the injured [employee] was employed.
[(3) The State Government may require that any prescribed class of employers shall maintain at their premises at which [employees] are employed a notice-book, in the prescribed form, which shall be readily accessible at all reasonable times to any injured [employee] employed on the premises and to any person acting bona fide on his behalf.
(4) A notice under this section may be served by delivering it at, or sending it by registered post addressed to, the residence or any Page 19 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined office or place of business of the person on whom it is to be served, or,where a notice-book is maintained, by entry in the notice-book.]"
8. On perusal of the above provision of Section 10 pertaining to notice and claim, if there is any defect or irregularity in notice as per the Fourth proviso of Section 10 of the Act, the same cannot be a bar to the entertainment of the claim if the employer had knowledge of the accident from any source at or about the time when it occurred. The Court below has observed in the impugned judgment and award that the respondent no.2-employer was informed about the accident on the same day at around 05.00 p.m. and as such the Fourth proviso to Section 10 of the Act is complied with and the Court below has rightly held that by not issuing notice under Section 10 of the Act, would not bar the claim made by the respondent no.1 at the relevant point of time.
9. With regard to the liability of the Page 20 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined interest by the Insurance Company is concerned, the issue is no more res integra as held by the Hon'ble Apex Court in case of Manju Sarkar Vs. Mabish Miah (Supra) wherein it is held that the Insurance Company is required to be made liable for payment of interest. In the facts of the case, the Court below has awarded the interest from the date of filing of the claim in view of the fact that the amount of compensation was not deposited by the employer and as the notice under Section 10 of the Act was not issued to the Insurance Company. Therefore no interference is required in the aforesaid finding arrived at by the Court below.
10. With regard to the contention raised on behalf of the Insurance Company of tampering of the number of the Dumper is concerned, there is no evidence on record as to who has tampered with such number and therefore the benefit of doubt is required to be given to the claimant as it is not in dispute that the claimant was an Page 21 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined employer working as a driver of the respondent no.2 and the Dumper in question belonged to the respondent no.2.
11. In view of the above discussion, the impugned judgment and award does not warrant any interference of this Court as far as liability of the Insurance Company to make the payment of compensation and interest is concerned. Similarly the penalty is also rightly fastened upon the respondent no.2 employer as per Section 4A(3)(b) of the Act.
12. Sofaras the rate of interest is concerned, the Court below has committed an error by awarding only 9% simple interest instead of 12% simple interest as provided in Section 4A(3)(b) of the Act. Section 4A(3)(b) of the Act reads as under:
"4A(3)(b) if, in his opinion, there is no justification for the delay, direct that the employer Page 22 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023 NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty:
Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed."
13. In view of the above statutory provision, the Court below ought to have awarded the interest at simple rate of interest at 12% per annum on the amount of compensation payable by the employer and the Insurance Company jointly and severally and liability of the interest is rightly fastened on the employer from the date of accident till date of filing of the claim petition and from the date of filing petition upon the Insurance Company as discussed in the impugned judgment and award.
Page 23 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023NEUTRAL CITATION C/FA/3041/2017 ORDER DATED: 17/07/2023 undefined
14. In view of the foregoing reasons, the appeal being devoid of any merit is accordingly dismissed, whereas the Cross Objection is allowed by modifying the impugned judgment and award by awarding the simple interest at the rate of 12% on the amount of compensation as per the liability fastened by the Court below upon the employer and the Insurance Company.
(BHARGAV D. KARIA, J) URIL RANA Page 24 of 24 Downloaded on : Sat Sep 16 21:40:23 IST 2023