USHA BAI Vs. YOUSUF ALI

JUDGEMENT

(1.) Being aggrieved by the order dated 6.6.2003 passed by the Commissioner for Workmens Compensation (Labour Court), Indore in Case No. 37/2001 WCF, whereby the claim petition filed by the appellants under Section 10 of the Workmens Compensation Act, 1923 (which shall hereinafter referrred as the Act of1923) was allowed and the compensation of Rs. 3,94.120/- was awarded without any interest, the present appeal has been filed.

(2.) Short facts of the case are that the appellants, who are the legal representatives of deceased Ramesh Chandra Rathore, filed a claim petition before the learned Court below on 4.6.2001 alleging that the deceased Ramesh Chandra Rathore was in employment of respondent No. 1 and was murdered during course of the employment on 19.4.2001 with the result he died on 25.4.2001. It was alleged that respondent No. 1 is the owner of Autorikshaw bearing registration No. CPM-1229 and is in a tansport business. The said auto was insured with the respondent No. 2. It was alleged that deceased was working as driver on the said auto. Further case of the appellants was that deceased was earning Rs. 4,000/- per month. It was alleged that on 19.4.2001 deceased was assaulted with the result he passed away. It was prayed that compensation be awarded. The claim petition was contested by the respondents on various grounds. After framing of issues and recording of evidence, learned Court below allowed the claim petition and awarded the compensation as stated above without interest, against which the present appeal has been filed. The question involved in the appeal as under:- "Whether appellants are entitled for interest/penalty on the awarded amount of compensation under the provisions of Workmens' Compensation Act, if yes, then with what rate?"

(3.) Learned counsel for the appellants submits that the impugned order is illegal to the extent as no interest has been awarded. Learned counsel submits that sub-Clause (a) of sub-section (3) of Section 4-A deals with the interest, which lays down that the interest shall be payable @ 12% per annum. While clause (b) of sub-Section (3) of Section 4-A of the Act deals with a situation where employer commits default in payment of compensation due. Learned counsel submits that as per sub-clause (b) of sub-Section 3 of Section 4A if the Commissioner is of the opinion that there was no justification for delay may direct that the employer shall in addition to the amount of interest thereof pay a further sum not exceeding than 15% by way of penalty. Learned counsel submits that it was a case where without any reason the amount of compensation was withheld by the employer but inspite no interest has been awarded by the learned Court below, that too without assigning any reason while the appellants were entitled for penalty as well. For this contention reliance is placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Subhash Barman, reported in I (2008) ACC 307, wherein Guahati High Court has held that in a case where Insurance Company neither pleaded nor could show any exclusion clause in insurance policy, the Insurance Company is liable for interest on compensation under Section 4-A (3A) of the Act. Further reliance is placed on a decision in the matter of Kamla Chaturvedi v. National Insurance Co.Ltd., reported in 2009 (I) JLJ 1=2009 ACJ 115, wherein the accident in question arose on account of vehicular accident and the provisions of Motor Vehicles Act were applicable, the Hon'ble Apex Court observed that after going through the policy of insurance Co., Court is of the view that that no such exception to payment of interest by Insurance Company is stipulated. Learned counsel for the appellants submits that in the matter of New India Assurance Co. Ltd. v. HarshadbhaiAmrutbhai, 2006 ACJ 1699 (SC), wherein policy expressly excluded interest and penalty imposed on insured employer on account of his failure to comply with the requirement of the Act. Hon'ble Supreme Court held that the amount of interest and penalty is payable by employer. Learned counsel submits that this was not the situation existing in the present appeal, hence the appeal filed by the appellants be allowed and the interest and penalty be awarded.