SANJAY BHIMRAO SULE Vs. OMKAR SINGH HARMAN SINGH

JUDGEMENT

(1.) - The appeal is preferred against the judgment and award dated 22 -1 -2009 passed by learned Commissioner for workman 's compensation in application WCA No. 586/C230/2005 whereby the application was partly allowed and the amount in the sum of Rs. 1,87,062/ - only was awarded @ interest at the rate of 12% p.a. from the date of adjudication till the date it 's realization payable by the Insurer and the employer Mr. Onkarsingh Harnamsingh (hereinafter referred as ''Opposite party '').

(2.) HEARD submissions at the Bar.

(3.) KHOPOLI , he met with an accident and sustained serious injuries during the course of his employment with the opposite party. He was admitted in Khopoli Municipal Hospital and was shifted to Accident Hospital at Solapur on 12 -11 -2004 and was discharged from the Hospital on 19 -11 -2004. It is case of the appellant that he is unable to work as Driver after the accident and therefore lost his ability 100% to work as Driver. The insurer had resisted the claim on the ground that the Driver was responsible for high speed of the vehicle and lost control therefore he was responsible. Opposite party supported the claimant 's case by filing the written statement. While the insurer prayed for rejection of the application. 4. I have perused the record and proceedings. The evidence led revealed that the accident occurred due to failure of brakes, in the course of the claimant 's employment with the opposite party. Dr. Naresh Khanna supported the case of the claimant workman to depose that the claimant had suffered from the permanent partial disability of 40% but due to the said disability the workman is unable to drive the vehicle in future because the claimant is unable to move his leg due to permanent partial disability. Grievance of the appellant is that the learned Commissioner failed to appreciate the total inability of the workman to drive the vehicle in future due to permanent partial disability certified by the Doctor, while restricting the compensation computing it on the monthly basis of Rs. 2400/ - only, when sum of Rs. 4000/ - as monthly wages of the workman was established and undisputed. The Tribunal also erred to award the interest, payable from the date of the accident at the rate of 12% p.a. statutorily. The law contemplates early payment of compensation payable and therefore levy of higher rate of interest @ 12% p.a. is also provided to ensure that arrears of compensation must be cleared as early as possible. Unjust delay on the part of the employer/ insurer can attract hefty penalty up to 50% of the compensation payable. Section 4 -A of the Act reads thus: - Section 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 due under this Act within one month from the date it fell due, the Commissioner shall - (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer 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. Explanation. - For the purposes of this sub -section, ''scheduled bank '' means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934. (3 -A) The interest payable under sub -section (3) shall be paid to the workman or his dependent as the case may be, and the penalty shall be credited to the State Government. Honourable Supreme court in the Four Judges Bench ruling in (Pratap NarainSingh Deo Vs Srinivas Sabata), A.I.R. 1976 S.C. 222 : (1976)1 S.C.C. 289 held that the employer becomes liable to pay compensation as soon as the personal injury is caused to the Workman by the accident which arose out of and in the course of employment. Thus it was unjust on the part of the learned Commissioner to ignore this settled legal position under section 4 of the Act. Section 4 Amount of compensation (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely (a) an amount equal to fifty per cent where of the monthly wages of the death deceased workman multiplied results by the relevant factor; or an from the amount of fifty thousand injury, rupees, which -ever is more The relevant factor applicable was 201.66 x monthly salary of Rs. 4000/ - divided by 50% of the deceased employee .