2017(5) ALL MR 394
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.
Smt. Raiwantabai w/o. Ramdas Sardare Vs. Nagpur Municipal Corporation
First Appeal No.580 of 2006
4th August, 2017.
Petitioner Counsel: Shri AKASH SORTE, h/f Shri S.P. GADLING
Respondent Counsel: Shri A.M. KUKDE
(A) Employees' Compensation Act (1923) S.4 - Employee's Compensation - Claimant was awarded Rs.1,28,330/- only though she was found entitled to get Rs.1,88,645/- - Merely because she was demanding Rs.1,28,330/- - Not justified - Duty of Commissioner is to award just, adequate and fair compensation which claimant is found entitled to get under statute and not that amount which claimant demands or does not demand. (Para 5)
(B) Employees' Compensation Act (1923), S.4A(B) - Employee's compensation - Delay in payment of - Penalty - No justification offered except stating that application itself was filed after 15 months of accident - After considering same, instead of awarding 50% of penalty, Commissioner awarded 25% of penalty only - Proper. (Para 8)
JUDGMENT :- This appeal, which is directed against the judgment and order dated 24.07.2003, passed by Commissioner under Workmen's Compensation Act and the Labour Court, Nagpur in W.C.A. Case No.43/1997 raises a very short question for consideration.
2. The appeal is preferred by the legal heir of deceased Ramdas Sardare, who was working with respondent as a Drainage Kuli (cleaner). He was getting the salary of Rs.2940/- per month. At the time of his death, he was running the age of 67 years. His accidental death took place on 11.03.1996 at about 09:30 a.m. during the course of employment while he was performing his duty of Sweeper behind Saint Johns High School, Nagpur.
3. The appellant is the widow of the deceased therefore, she has filed the claim petition before the Commissioner Workmen's Compensation, seeking compensation of Rs.1,28,330/-. In support of her case, she examined herself and on appreciation of her evidence, the Commissioner allowed her application. After making the necessary calculation to which the appellant can become entitled, it was held by the Commissioner that she could be entitled for Rs.1,88,645/- towards compensation. However, in para 18 of its judgment, the learned Commissioner held that as she is demanding the compensation of Rs.1,28,330/-, she will be entitled to that much amount only and not more. Accordingly, respondent was directed to pay the appellant the amount of Rs.1,28,330/- only.
5. As rightly submitted by learned counsel for appellant, the reasoning given by the Commissioner for awarding this amount of Rs.1,28,330/-, merely because it was claimed by the appellant, when in fact she was found to be entitled legally to get the amount of Rs.1,88,645/-, is completely erroneous and that finding has to be quashed and set aside. Needless to state that it is the duty of the Commissioner under Workmen's Compensation, to award the amount of compensation which is just, adequate and fair and which amount the claimant is found entitled to get under the statute and not that amount which the claimant demands or does not demand. The Commissioner for Workmen's Compensation has thus, failed in his duty in not awarding the reasonable amount of compensation to which the Commissioner has held the appellant entitled to, that is the amount of Rs.1,88,645/-. Hence, to that extent definitely interference is warranted in the impugned judgment and order of the Commissioner.
6. Another ground on which the appeal is filed is that the learned Commissioner has awarded the penalty of 25% only. It is submitted that as per Section 4A(B) of the Workmen's Compensation Act, the Commissioner can grant, in addition to the amount of the arrears and interest thereon, a further sum not exceeding 50% of such amount by way of penalty. Herein it is submitted that, as only 25% is granted by way of penalty, the said amount needs to be enhanced to 50%.
7. However, as rightly submitted by learned counsel for respondent, Section 4A (3B) of the Workmen's Compensation Act clearly provides that the Commissioner, if in his opinion, there is no justification for delay, direct that the employer shall, in addition to the amount of arrears and interest thereon, pay a further sum not exceeding 50% of said amount by way of penalty.
8. Therefore, this sub-clause 3B of Section 4A of the Workmen's Compensation Act, is very clear that if there is no justification for the delay on the part of the respondent employer, then only there will be direction of paying penalty not exceeding 50%. In the instant case, the explanation is offered by the respondent on the count that the application itself was filed about 15 months after the accident and hence, there was some delay on the part of the respondent. The impugned order of the Commissioner reflects that the Commissioner has considered the same and therefore instead of awarding 50% of the penalty, awarded 25% of penalty only. Hence, in my opinion no interference is warranted in that aspect.