CWP No. 5066 of 1991 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 5066 of 1991 Date of decision October 20, 2009 Krishna Devi ....... Petitioner Versus The Workmen's Compensation Commissioner, Sangrur and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Amarjit Markan, Advocate for the petitioner. Mr. Parveen Kumar Vohra, Advocate for respondent No.2. Ms. Vandana Malhotra, Advocate for respondent No.3. **** 1. Whether reporters of local newspapers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest? Yes **** K. Kannan, J (oral). 1. The writ petitioner claimed before the Workmen's Compensation Tribunal that her son had died in a motor accident when he was working with respondent No.1. The death ensued by a murder when he was alleged to be in the course of his employment. To the claim by the parents instituted in May, 1996 defence by the employer was that the deceased driver had undertaken the risk of taking strangers in the cabin in the truck which he was driving and he was murdered by some unknown men on account of the risk that he had assumed without the authority of the employer. The Workmen's Compensation Commissioner rejected the CWP No. 5066 of 1991 2 contention and held that the death had taken place in the course of his employment and the fact that some strangers were also there were irrelevant and did not amount to assumption of risk which was unconnected to his employment. On the contention relating to the wages, the Commissioner held that as against the claim of the petitioner that he was drawing Rs.1050/- per month for his wages, he was drawing a salary of Rs.550/- placing reliance on the revenue receipts and the cash book produced on the side of the employer. Making due compensation as provided under the Workmen's Compensation Act, the Commissioner found that the claimants were entitled to Rs. 47361.60. During the course of the proceedings the Commissioner had ordered payment of a provisional amount of Rs.15,000/- on 13.3.1987 and the respondents had also deposited the amount. This amount was directed to be adjusted against the liability which the Commissioner had fixed. 2. The writ petition challenges the order only insofar as it disallowed interest and penalty. Learned counsel for the petitioner would state that the liability for the employer to make the payment fall due on the date when the petition was filed and the same having been done in May, 1986, the denial of liability by the employer through his written statement was not tenable and the Court ought to have awarded interest at the rate of 12%. The Counsel for the Insurance Company joined issues on the aspect of interest and liability by pointing out that the amount shall be deemed to fall due only on the day when the Commissioner determined the liability and therefore the interest could be added only if the amount had not been paid one month after when the award was passed. Learned counsel refers to the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Mubasir Ahmed and another reported in AIR 2007 209 to contend that the amount shall be taken as having become due only on the date of adjudication of the claim unless there was adjudication the question CWP No. 5066 of 1991 3 of an amount falling due did not arise. Learned counsel also refers to yet another decision of the Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya reported in 2006 (5) SCC 192 that even the liability to pay interest shall be caused only on the employer and the same cannot be fastened on the Insurance Company. 3. The reference to a decision of the Supreme Court have to be understood in the context of the facts dealt with in that case. In New India Assurance Company's case (supra) the claim was at the instance of an employee who had suffered disability and the extent of disability had to be determined by the Labour Court and the doctor had been examined who certified the disability to the loss of earning capacity. There was nothing indicated in the claim petition as to when the amount became due in that the Hon'ble Supreme Court said that the amount be paid from the date when the adjudication of the claim was made. It shall not be taken as a rule as in all the cases that the amount shall be taken as due only on the date when the Commissioner makes an adjudication and determines the amount. In cases of death where the death had ensued in the course of employment when the employer was denying the liability on the ground that the death by murder during the course of employment was not to be taken as out of employment and that the workman had undertaken some risks which were not connected with the employment and when these contentions in defence were found to be false by the Commissioner, it could not be contended on behalf of the Insurance Company that the amount became due only on the date when the adjudication was made. The scheme of the Act through amendment by introducing Section 4-A is such that liability is fixed on the employer on the date when the cause of action arose as in this case, the date when the death ensued. The feature that makes for provisional payment of compensation to the extent of liability which the employer accepts leaves CWP No. 5066 of 1991 4 no doubt that the employer is bound to assume liability in all cases where there is an accident or injury or death in the course of employment. The employer by merely denying his liability and engaging the employee or legal representatives cannot defeat the entitlement and obtain premium to his own conduct of denial and defying the workman to prove the liability through an adjudication which could take several number of years as well. In Ved Parkash Garg Vs. Premi Devi (1997) 8 SCC 1, the Hon'ble Supreme Court held that the Commissioner would be justified in directing payment of interest not only from the date of award but from the date of the accident itself. In my view, in the case of death which was an admitted fact and the accident also during the course of employment which was also admitted, the denial by employer to make the payment till he was directed to provisionally deposit Rs.15,000/- was not justified. The amount fell due in such a situation on the day when the petition was filed, when the demand had been made for the first time. 4. As regards the claim by the Insurance Company that it is not liable for the interest by reference to the Hon'ble Supreme Court Judgment in New India Assurance Company's case (supra) must be seen again in the factual context of a proof by the Insurance Company that the terms and conditions of policy in that case did not provide for payment of interest. Annexure R-1 that had been filed in Court was merely a premium receipt and it did not contain all the terms and conditions and conditions of the Insurance Policy. The Insurance Company is not in such circumstances entitled to plead in the absence of proof that there was no liability to payment of interest as per the terms of policy. 5. The issue of penalty is only a different concept introduced through Section 4-A, it shall be awarded in a case only when the Court found a justification for imposition of penalty also, which shall be done after due notice. There was no justification made out in the manner CWP No. 5066 of 1991 5 which is set forth under Section 4-A, 3 (b) for awarding penalty. The only modification that the Commissioner's order shall suffer is that it shall be provided for interest at the rate of 6% per annum (as per the law then in force in its unamended form up to 15.9.1995) from the date of institution of the petition till the actual date of payment. The amount of Rs.15,000/- paid on 13.3.1987 shall be given due credit. 6. The writ petition is ordered in the above terms. (K. KANNAN) JUDGE October 20, 2009 archana