(t) IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR rCHHATTISGARHf M.A.fQ No. ^^0 of201QSiflCjI® APPELLANT I^oh-applicant ^No.2 •^' ^? .^. .. ^" ,. Uttam Chand Jain, aged about 54 years, son of Late D.C. Jain Contractor, R/o.VUlage . Gunderdehi, District Durg (C.G.) Versus RESPONDENTS :1) Kachru Ram Netam, S/o. Late ^ ^ Dukhaw, aged about 48 years, :2], Smt. Ramvati, W/o. Kachru Ram Aged about 45 years, Both R/o. Village Surhi, Gram Panchayat Surhi, Thana Narharpur, District Kanker (C.G.) APPELLANTS/CLAIMANTS .^ ^ .^ yy y" •''n/ :3^ Contractor N.C. Naher, J.K.Villa, Malviya Nagar Durg RESPONDENT N0.1 :4) Executive Engineer, Office of Pradhan Mantri Gram Sadak Yojna, Kanker, District Kanker (C.G.) RESPONDENT No.2 ^ >) State of Chhattisgarh through ^ Collector Kanker, Distnct Kanker(C.G.) RESPONDENT No.3 :6) Ramswaroop, son of Bharosa ^ Ram Mandawi aged about 45 years, R/o. Chhindbharri, P.S. Arjuna, District Dhamtari (C.G.) (? \B^-: APPEAL UNDER SECTION 30 OF WORKMENS' COMPENSATION ACT HIGH COURT OF CHHATTISGARH AT BILASPUR Appellants/ Claimants Respondents M.A.(C) No.869 OF 2009 Kachru Ram Netam and another Vs Contractor NC Naher and others Appellant/ Non-ApDlicant No.2 Responclents M.A.(C) No.970 OF 2010 Uttam Chand Jain Vs Kachru Ram Netam and others Present: Mr. Alok Dewangan, counsel for the appellants in MAC Nb.869/09 and for respondents No. 1 &2 in MAC No.970/10. Mr. HB Agrawal, Sr. Adv. With Mr. Pankaj Agrawal, Adv. for the appellant in MAC No.970/10 and for respondents No. 1 & 2 in MAC No.869/09. Mr. Rajendra Tripathi, Panel Lawyer for the State. Mr. Manoj Chouhan,counsel for respondent No.6 in MAC No.970/10. ORDER (Passedon V^ August,2011) G. Minhaiuddin.J 1. As both these appeals arise outof the common award dated 16.2.2009 passed by Commissioner for Workmen'sCompensation, LabourCourt, Jagdalpur, in Case No. B/51/WC AcVFatal/C/1/2007, they are being disposed of by this common order. 2. MAC No.869/09 has been filed by the dependants father and mother of deceased Dilip Netam for grant of interest on the award amount and for imposing penalty under Section 4A(3)(b) of the Workmen's Compensation Act, 1923 (in short "the Act, 1923"). 3. MAC No.970/10 has been filed by the employer Uttam Chand Jain for setting aside the award dated 16.2.2009. 4. For the sake of convenience, parties shall hereinafter be referred to as per their description before the learned Commissioner for Workmen's Compensation (in short "the Commissioner"). 5. Brief facts of the case are that for construction of road from Village - Surhi to Village - Badal under the Prime Minister. yjllage Road Scheme, a contract was given by respondent No.3 to respondent No.1. The said work was being jointly executed by respondents No. 1 & 2. Deceased Dilip Netam along with other persons was working as labour andemployeeofrespondents No. 1 &2 on 17.1.2006and was digging muroom from the muroom mines. All of a sudden, the said mine collapsed and three labours i.e. Dilip Netam, Dinesh Kumar Markam and Dharam Raj were buried under the muroom. Immediately with the help of other labours, muroom was removed and all threeof themwere taken out. Bythattime, Dilip Netam had died and two other labours i.e. Dinesh KumarMarkam an'd Dharam Raj had sustained serious injuries, who were immediately taken to the nearby hospital. Areport of the accident was lodged at Police Station : Narharpur. On the basis ofwhich, offenceunder Sectior 304A/34ofthe IPC was registered against respondentNo.2 and his supervisor Shyamlal. Since deceased Dilip Netam died in the accident arising out of and during the course of employment under respondents No.1 & 2, therefore, the dependents of the deceased, who are father and mother, claimed compensation from the employer and when the same was denied, they filed an application under Section 22 of the Act, 1923 before the Com'missioner for grant of compensatipn with interest and penalty. 6. Learned Commissioner, after affording opportunity ofhearing and of adducing evidence to all the parties, passed the impugned award dated 16.2.2009 holding respondent No.2 as employer ofdeceased Dilip Netam at the relevant time and also hotding that death of Dilip Netam has been caused on account of accident arising out of and in the course of employment and thus, awarded a sum of Rs.2,35,200/- as compensation to parents of the deceased. As no order was passed in respect of interestand penalty, therefore, the claimants have filed this appeal i.e. MAC No.869/09 for enhancement ofthe compensation amountby awardinginterest and penalty. 7. MAC No.970/10 hasbeen filed by the contractor Uttam Chand Jain for setting aside the impugned award dated 16.2.2009 on the ground that deceased Dilip Netam had never been his employee and on the relevant date i.e. 17.1.2006 he wasan employee of T Ramswaroop, who was transporting muroom in the tractor trolley from muroom mines to the site of work. 8. In MAC No. 869/09 the following substantial questions of law are involved for adjudication : "(i) Whether the Commissioner was justified in holding the contractor-respondent No.2 as the only employer and not respondents No.1 to 4 jointly as theemployers of the deceased? (ii) Whetherthe Commissioner was justified in not awarding interest under Section 4A(3)(a) of the Act, 1923 and penaltyunder Section 4A(3)(b) of the Act, 1923?" 9. In MAC No.970/10, filed by the appellant/employer Uttam Chand Jain, the following substahtial question of law is involved for adjudication: "Whether the Commissioner was justified in holding the appeltant contractor Uttam Chand Jain as the employer of the deceased on 17.1.2006 and not holding Ramswaroop -owner of the tractor trolley - as the employer? 10. From the averments made by the dependents of deceased Dilip Netam in their application under Section 22 of the Act,1923 and the written statement filed on behalf of the non-applicants, it is clear that a contract was entered into between respondent No.S/Executive Engineer and respondent No.l/Contractor NC Naher, under which the work of construction of road under Prime Minister Village Road Scheme was given by respondent No.3 torespondent No.1. 11. On behalf of the dependents/ctaimants, twowitnesses Kachruram (AW-1) and Narottam (AW-2) were examined;on behalf of respondents No. 1 & 2, Shyamlal Sahu (NAW-1) was examined, whereas on behalf of respondents No. 3 & 4, Girish Chand Pandey (OIC) was examined as NAW-1 . ^^&ii 12.As per versionofcontractor Uttam Chand Jain - respondent No.2, on the relevantdatei.e. 17.1.2006 or on any other date, the deceased Dilip Netam was not his employee and in fact, the deceased was working as a labour in the tractor trolley of Ramswaroop, which was engaged for transportation of muroom and the wages of the deceased were being paid by Ramswaroop. Contractor Uttam Chand has examined his supervisorShyamlal Sahu (NAW-1) on his behalf, who has not stated even a single word about the wages being paid to the deceased by Ramswaroop - owner of the tractor trolley. This witness (NAW-1) has, in clear terms, stated that they have maintained an attendance register of the labours and deceased Dilip Netam had never been employee of contractor Uttam Chand Jain. 13. On thecontrary, Narottam who has been examined as AW-2 has stated that he along with deceased Dilip Netam, Dharam Raj as well as Dinesh Kumar was working as labour of contractor Uttam Chand on 17.1.2006 and theirwages were being paid by contractor Uttam Chand. This witness was theperson, who was present on thespot at the time of accident and he along with others had removed the muroom and taken out the injured persons from beneath the muroom. The attendance register, despite opportunity, has not been produced by contractor Uttam Chand, as such adverse inference has rightly been drawn by the Commissioner against contractor Uttam Chand Jain. From the statement of Shyamlal Sahu (NAW-1), it is cleat that the contract for construction of road was given to respondent No.1 contractor NC Naher by respondent No.S/Executive Engineer, butthe workwas transferred for execution M to contractor Uttam Chand Jain, the petty contractor of NC Naher, and the workwas being executed by him at the relevant time. As such, the finding of the Commissioner that on the date of accident i.e. 17.1.2006 deceased Dilip Netam was an employee of respondents No. 2 Uttam Chand and the death occurred due to the accident arising out of and in the course of employment under contractor Uttam Chand is quite legal and based on proper appreciation ofthe evid'nce and cannot be faultedwith. w5?'" • ' 1 ^7 14. So far as non-grant of interest on thecompensation amount is concerned, from perusal of the impugned award, it is found that in para-15, the Commissioner has mentioned a judgment ofthe Hon'ble Supreme Court m Kamla Chaturvedi Vs. National Insurance Co. Ltd. and others reported in 2009 (120) FLR 149 in which it has been held that fhe interest is payable after one month from the date of award by the Commissioner, and accordingly, held that the claimants, in the instant case, are not entitled for interest on the compensation amount from thedate of accident. Afterthis, the Commissioner has not passed any order regarding grant of interest after expiry of one month from the date of award, which is mandatory in view of provisions of Section 4A(3)(a) of the Act, 1923, which provides for a minimum interest @ 12% p.a. 15. Therefore, taking into consideration the facts and circumstances of the case and the material available on record, 1 am of theopinion that there is no illegality or infirmity in the impugned award insofar as the quantum of compensation is concerned and to that extent, the same is affirmed. However, in view of the provisions of Section 4A(3)(a) of the Act, 1923, in addition to the compensation amount, the claimants shall also be entitled to interest @ 12% p.a. from the date of expiry of one month after the date of passing of award i.e. 16.2.2009. 16. So far as the question of imposing penalty under Section 4A(3)(b) of the Act, 1923 is concerned, the claimants have specifically claimed penalty inpara-7 oftheir claim petition under Section 22 of the Act, 1923 and the same has been denied by the non-applicants in general terms. As such, an issue ought to have been framed, but neither the issue has been framed nor any order has been passed regarding imposition of penalty. 17. Intheresult: > MAC No.869/09 - the appeal filed by the claimants/dependents - is partly allowed and while confirming the quantum of compensation, it is ordered that the claimants shall also be entitted to interest @ 12% p.a. from the date of expiry of one month after the date of impugned award i.e. 16.2.2009., ^m... -;;^@w^^?@5?N^^;';w^^^'3»g3i%^B^^;^y^^M^ssasss?3sss^- .%^'^(»S 'K'yHCa'8a 3tE''.'.-'--3aE3P2'Z>E» ^) The Commissjoner has not specifically passed any order in respect of penalty under Section 4A(3)(b) of the Act, 1923, therefore, he shall be at liberty to pass an order afresh in respect of penalty in accordance with law, after strictly following the provisions of Section 4A(3)(b) ofthe Act, 1923 i.e. after affording reasonable opportunity of hearing to the parties concerned. > MAC No.970/10 filed by the appellant contractor Uttam Chand Jain, being devoid of substance, is hereby dismissed. > The aforementioned substantial questions of law are answered accordingly. > No orderas to costs. gd/- G. Minhajuddin Judge