FAO No. 3711 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3711 of 2003 (O&M) Date of decision: 24.1.2011 Gurdial Kaur and another .. Appellants v. Sadhu Singh and Company and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Raman Sharma, Advocate for the appellants. ... Rajesh Bindal J. Old parents of the deceased son are before this court challenging the order dated 10.9.2001, passed by the Commissioner under the Workmen's Compensation Act, 1923 (for short, `the Commissioner') seeking enhancement of compensation and also claiming higher rate of interest and the penalty. Briefly, the facts are that son of the appellants, namely, Amar Singh (25 years), who was employed as a driver with the respondents expired in an accident on 2.10.1987. The Commissioner considering the salary and age of the deceased assessed the compensation at ` 61,602/- and awarded interest @ 6% per annum from the date of accident till the payment is deposited. As the claimants before the Commissioner were merely the parents of the deceased, though he had left behind his widow and a minor son as well, liberty was granted to them to file application for apportionment of the amount of compensation amongst various dependents. Aggrieved against the aforesaid order, the claimants are before this court. Learned counsel submitted that the appellants in the present case are old parents of the deceased, who are about 80 years of age. Their young son, who was employed with the respondents, expired in an accident FAO No. 3711 of 2003 [2] held on 2.10.1987. They have been awarded a meagre compensation of ` 61,602/-. Salary of the deceased has been taken merely at the minimum wage fixed by the Government, whereas it was an admitted fact on record before the Commissioner that son of the appellants was living at site and was available for service for 24 hours. In fact, he was getting ` 1,200/- per month as salary, but still as against that, the Commissioner has taken the same merely at ` 710/- per month. He further submitted that rate of interest awarded on the amount of compensation @ 6% per annum is quite meagre, as the Workmen's Compensation Act, 1923 (for short, `the Act') provides for award of interest upto 12% per annum. Concluding his submissions, prayer was also made for levy of penalty to the extent of 50%, as is provided for under Section 4A(3) of the Act. Heard learned counsel for the appellants and perused the relevant referred record. None appeared for the respondents despite service. The appellants in the present case are old parents of deceased- Amar Singh. Their young son, aged 25 years, who was employed with the respondents, expired in an accident. The appellants being dependents on the deceased filed claim application before the Commissioner for grant of compensation. A perusal of the record shows that the claim made by the appellants was rejected by the Commissioner vide order dated 8.12.1997 holding that the deceased did not die during the course of employment. The aforesaid order was challenged by the appellants before this court by filing FAO No. 1494 of 1998, which was allowed vide order dated 13.10.2000. This Court while setting aside the findings of the Commissioner to the effect that son of the appellants did not die during the course of employment, remitted the matter back to the Commissioner for computation of the amount of compensation to which the appellants were entitled to. Though the respondents were represented before this court in the aforesaid appeal, but they chose not to appear when the proceedings were taken afresh by the Commissioner after remand by this court and were directed to be proceeded against ex parte. The Commissioner did not find any merit in the submissions made by the appellants claiming that salary of the deceased was ` 1,200/- per month as in his cross-examination, AW-2 admitted that in the notice issued it was stated that the deceased was getting ` 700/- per month FAO No. 3711 of 2003 [3] as wages. The Commissioner considering the aforesaid evidence and also finding that minimum wages for driver, as were fixed on 1.10.1987, were ` 709.75 per month, assessed the salary of the deceased at ` 710/- per month and accordingly taking the age of the deceased at 25 years, assessed the compensation at ` 61,602/- vide order dated 10.9.2001. In addition to that, interest @ 6% per annum was awarded from the date of accident till payment. Aggrieved against the order passed by the Commissioner, the claimants (parents of the deceased) filed the present appeal before this court seeking enhancement of compensation and also interest and penalty. On the other hand, the respondents filed application for setting aside of the ex parte order dated 10.9.2001 before the Commissioner stating therein that they were in knowledge of the proceedings before the Commissioner and had appeared on 27.7.2001. On three subsequent dates also, they appeared but claimed that thereafter they were not informed about the date. The appellants were made to contest that application and the same was rejected by the Commissioner. Though copy of the order is available on record of the Commissioner, however, the date thereof is not forthcoming from the order. The conduct of the respondents is evident from the fact that in the present appeal as well, though service of the respondents is complete, however, they did not choose to appear. The amount of compensation was paid to the appellants only after they filed execution application before the Commissioner and the proceedings for recovery under the arrears of land revenue had to be initiated. The amount was deposited by respondent No. 1 before the Commissioner on 10.4.2003. As far as amount of compensation is concerned, I do not find any merits in the submissions made by learned counsel for the appellants considering the fact that it could not be proved on record that salary of the deceased was more than what has been taken by the Commissioner for the purpose of assessment of compensation. There is no dispute even about his age. The aforesaid are the only two relevant factors for assessment of compensation under the Act. As far as rate of interest and the period for which it has been awarded is concerned also does not call for any interference. However, as far as the claim made by the appellants regarding levy of penalty on the respondents is concerned, in my opinion, considering FAO No. 3711 of 2003 [4] the conduct of the respondents where the amount of compensation, which was due to the appellants immediately on the death of their son way back in the year 1987 was paid only in the year 2003, i.e., after 16 years and that too when the proceedings for recovery of the amount as arrears of land revenue were sought to be initiated and further that the appellants were made to contest their genuine claim twice before this court and three times in proceedings before the Commissioner, in my opinion, the respondents are required to be saddled with 40% of the amount of compensation as special cost as at the relevant time in case penalty was to be levied the same was to be deposited with the State. The aforesaid amount shall be payable along with interest. However, still while not entering into details of calculations in the peculiar facts and circumstances of the case, it is directed that a lump sum of ` 50,000/- shall be paid by the respondents to the appellants within 3 months from the date of passing of the present order. However, in case of failure, the same shall carry interest @ 9% per annum from the date of order. The Workmen's Compensation Commissioner to ensure execution of the order expeditiously. The appeal stands disposed of in the manner indicated above. ( Rajesh Bindal ) Judge 24.1.2011 mk