NIRMALA BAI Vs. ASHOK

JUDGEMENT

(1.) BOTH appeals arise from one common judgment and order dated 26. 9. 1997 delivered by the workmen's Compensation Commissioner awarding compensation to the tune of Rs. 1,00,367 in favour of the claimants-respondents. Feeling aggrieved from that award, the insurance company as well as the employer have filed Appeal No. 4755 of 1997 under Section 30 (1) of the workmen's Compensation Act. It may also be mentioned that from this very same order, M. F. A. No. 308 of 1998 has been filed by the employer alone. It has firstly been contended with reference to both the appeals by Mr. S. P. Shankar and Mr. Manikappa Patil that the claimant-injured had been mentioned to be 14 years of age and, therefore, he could not be an employee or workman under the present appellant in Appeal No. 308 of 1998, i. e. , appellant No. 1 in M. F. A. No. 4755 of 1997. It may be mentioned that the compensation officer has considered the evidence and has held that the claimant was about 16 years on the date of accident and injuries caused. The respondents in the present case have moved an application for vacation of the interim order passed by this court. Along with the affidavit, he has filed the School Leaving certificate. In the School Leaving Certificate his date of birth has been mentioned as 1. 8. 1980 in column No. 11. The date of accident is 19. 4. 1996. From this document also it appears that on 19. 4. 1996 he was about to complete 16th year. This being the position, the finding of the court below cannot be said to be erroneous and it being a finding of fact cannot be interfered with. Now as the circumstances have been explained, these contentions raised by the learned counsel for the appellant are without substance and are rejected.

(2.) WITH reference to Appeal No. 4755 of 1997 another contention has been raised by Mr. Manikappa Patil that penalty has been imposed illegally and the imposition thereof is without jurisdiction. The appellants' counsel contended that the Commissioner had to apply his mind to the question whether the delay in payment was mala fide or intentional and it was without any justification. Mr. M. Patil referred to the Division Bench decision of this court in the case of n. A. K. Pathan v. Julekhabi Pathan ILR1986 KAR 2413. The language of this Sub-section (3) of Section 4-A reads as under: