FA/4770/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 4770 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GSRTC Versus JASHUBHA ARJUNSINH VANCHHANI & OTHERS ========================================================= Appearance : MR UI VYAS for Appellant. MS TEJAL K SHAH for respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 22/02/2008 ORAL JUDGMENT Gujarat State Road Transport Corporation has FA/4770/2006 2/10 JUDGMENT preferred the present appeal under section 30 of the Workmen's Compensation Act [hereinafter referred to as the Act] against the judgment and award dated 24.12.1999 passed by Commissioner for Workmens' Compensation at Amreli in W.C. [F] No. 50 of 1998 [formerly numbered as W.C. [F] Case No. 13 of 1997 at Bhavnagar] whereby the learned Commissioner has awarded Rs.78,824/- as compensation to the claimants with 50% penalty and 6% interest. Mr. U.I. Vyas, learned advocate for the appellant submitted that the impugned award is exfacie illegal and invalid and, therefore, deserves to be quashed and set aside. He submitted that the judgment and order passed by the learned Commissioner is contrary to evidence on record of the case, and, therefore, the same deserves to be quashed. Learned advocate further submitted that the Commissioner has committed error in granting compensation to the legal heirs and representatives to the tune of Rs.78,824/- with penalty and interest. The learned Commissioner has miserably failed to consider the fact that the deceased had filed claim petition for compensation before the Motor Accident Claims Tribunal for the injuries sustained by him in the accident and, therefore, two claim petitions before two different forums are not maintainable and, therefore, the impugned order passed by the Commissioner is contrary to law and requires to be quashed and set aside. The learned advocate submitted that the delay, which was caused in preferring the petition before the learned Commissioner has not been properly explained by the legal heirs and representatives of the deceased and, therefore, on that count also, the claim petition deserves to be dismissed. FA/4770/2006 3/10 JUDGMENT The award of compensation is on the higher side and it requires to be sliced down. The learned advocate submitted that even penalty of 50% which is awarded by the Commissioner on the total amount of compensation is also against the ratio laid down in a catena of decisions rendered by the Apex Court as well as by the Honourable High Court, and, therefore, the order passed by the Commissioner deserves to be set aside. Ms. Tejal Shah, learned advocate representing the legal heirs and representatives submitted that the Commissioner has taken into consideration the oral deposition and the documentary evidence adduced by both the sides, and awarded the compensation. She further submitted that on 10.10.1988, the deceased workman, Arjunsinh B. Vanchhanni, who was working as a ST bus driver, met with an accident at Rajpara village when he was driving bus from Bhavnagar to Taleja. An Oil tanker came from the opposite direction and collided with the bus. The workman-driver suffered injuries and he was admitted in the hospital and died subsequently during the prolonged treatment. The Commissioner has assessed the income of the deceased to the tune of Rs.1000/-. The deceased workman was required to take prolonged treatment in different hospitals. The workman was fairly young when he met with the accident. She submitted that the Commissioner has adopted a very conservative approach for assessing the monthly income of the deceased and correctly applied the factor as per the schedule considering the age and monthly income of the deceased, and, therefore, the award does not call for any interference in the appeal preferred by the State Road Transport Corporation, and the appeal deserves to be FA/4770/2006 4/10 JUDGMENT dismissed. Relying on the judgment in the case of PRATAP NARAIN SINGH DEO vs. SRINIWAS SABATA reported in [1976] 1 SCC 289, learned advocate for the respondent submitted that it was the duty of the appellant to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent and the appellant having not done so, the Commissioner was fully justified in making an order for payment of penalty and interest, and the same also does not call for any interference. Heard the learned counsel for the appellant as well as the advocate appearing on behalf of the respondents at length and in great detail. I have also perused the record and proceedings of case. FIR of the accident that took place on 10.10.1988 is produced at Exh. 34-A [at page 53 of the R & P]. Certificate of Medical Officer, Primary Health Centre, Tansa is at Exh,35 [page 55]. The certificate issued by the Medical Officer, Sir T. Hospital, Bhavnagar is at Exh. 36. The discharge cards showing the treatments given by Dr. Chetan D. Nayak from 16.05.90 to 28.05.90, and by Dr. Mahendra D Shanishwara for treatment given from 17.06.91 to 29.06.91 are at Exh. 37. Bill showing treatment taken at Jivandhara Nursing Home, Bhavnagar from 17.04.92 to 01.05.92 is produced at Exh. 37. It also appears from the record that the deceased workman was under treatment of different doctors at different times. Ultimately, the workman died on 09.10.92 and his death certificate is at Exh.38. His birth certificate is produced at Exh. 39. This Court has considered all these and other documentary as well as oral evidence on record. FA/4770/2006 5/10 JUDGMENT The deposition adduced by Jasuba, wife of the deceased is at Exh. 18. The deposition of Dr. Nathalal Premjibhai Kuhadia is at Exh. 34. Reading the deposition of witnesses and the documentary evidence, it becomes absolutely clear that as a result of the injuries suffered in the accident on his head and trunk, the workman became insane and also suffered problems in his liver and abdomen. The learned Commissioner has discussed the evidence of the claimant, wife of the deceased workman in paragraph 7 and the evidence of Dr. Nathalal Premjibhai Kuhadia in paragraph 8 of the judgment. Considering the evidence on record, I have no doubt in my mind that on the date of the accident, the deceased Arjunsingh was a workman of the appellant and that he suffered the injuries during the course of his employment. The record does indicate that the deceased workman resumed his duties a couple of weeks after the accident, i.e. for 10 days in November 1988 and 20 days in December 1988. However, there is voluminous evidence on record to show that the workman was under continuous treatment for the injuries suffered by him in the accident on his head and trunk, and the workman became insane. That apart, the deposition indicates that the workman had suffered serious injuries on his head so much so that there were 33 straight stitches and 18 cross stitches. It is required to be noted here that even after sustaining such grievous injuries, the workman tried to do his duties but he could not continue. In the circumstances, the learned Commissioner has rightly held that the workman could not attend his duties as he was undergoing treatment, and after prolonged treatment for FA/4770/2006 6/10 JUDGMENT the injuries suffered by him, died as a result of the injuries suffered by him. This Court is also in agreement with the findings arrived at by the Commissioner that the applicants are entitled to file the claim petition. The contention that in view of the Motor Accident Claim Petition filed by the present claimants, the present claim is not maintainable has no merit. Except bare averments, no evidence -either copy of the application filed before Motor Accident Claims Tribunal or the award passed by the said Tribunal - is produced on the record. Thus it is not proved on record that two claims are made for the same accident. That apart, the employer is liable to pay compensation to the heirs of the deceased workman under the Act and the employer would be entitled to have the amount set off against his liability to pay compensation for the accidental death cause by a tortious act for which its liability arises under the Motor Vehicles Act. [1982 GLH 1010 : 1983 (1) GLR 157 see para 26 and (1999) 1 SCC 90 see para 33] . The deceased sustained the injuries on 10.10.88 and died on 09.10.92. During the aforesaid period, he was required to take medical treatment at different hospitals and suffered excruciating pain. The deposition adduced by the wife of the workman Exh. 18 gets necessary support from the deposition of and the Doctor Exh. 34. In his deposition he has narrated the injuries sustained by the deceased and the treatment taken by the deceased for a long period of about 4 years. As regards the age of the deceased workman, the birth and death certificates are on record and therefore the learned Commissioner has rightly held that the FA/4770/2006 7/10 JUDGMENT workman was 35 years of age at the time of his death. The Commissioner has rightly taken his income at Rs.1000/-. The Commissioner has correctly taken 40% as per section 4 of the Act and considering his age at 35 and applying factor of 197.06 as per Schedule IV, the Commissioner has correctly awarded Rs.78,824/-. The said part of the award is in accordance with the Act and calls for no interference. As regards the award of penalty and interest, it is pertinent to note the ratio laid down by the Division Bench of this Court [Coram: M.S. Shah & A.M. Kapadia, JJ.] in the judgment dated 05.04.2004 in First Appeal No. 766 of 2004 in the case of GSRTC v/s. GITABA AJITSINH ZALA W/O DECD AJITSINH C ZALA, the relevant portion of which reads as under: “4. Although the appellant has sought to challenge both the orders awarding interest at the rate of 12% and penalty at the rate of 50%, at the hearing of this appeal, it is not possible for the Corporation to challenge the direction given by the Commissioner for payment of interest at the rate of 12% inview of the categorical provisions contained in sub-section (3)(a) of Section 4-A of the Act which provide that where the employer is in default in payment the compensation due under the Act within one month from the date it fell due, the Commissioner shall direct that the employer shall, in addition to the award of the arrears, pay simple interest thereon at FA/4770/2006 8/10 JUDGMENT the rate of 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank on the amount due. Since 12% is the minimum rate of interest, the Commissioner did not commit any error in awarding interest at the rate of 12% from the date of the accident. xxx xxx xxx xxx xxx xxx 8. Having regard to the aforesaid facts and circumstances and taking an over all view of the matter, we are of the view that the interests of justice would be served if the direction for payment of 50% penalty given by the Commissioner is modified and the appellant-Corporation is required to pay penalty of only 5% as a token penalty to be paid by one limb of the State to another limb.” In the light of the ratio laid down by the Division Bench in the aforesaid judgment, the award of penalty is required to be scaled down to 5% whereas interest is required to be awarded at 12%. This brings me to the last submission on behalf of the appellant that the claim is barred by limitation. Proviso to section 30 of the Act clearly states that “no appeal shall lie against any order unless a substantial question of law is involved in the appeal. It is a settled position of law that the question of limitation is a mixed question of law and fact. In a recent FA/4770/2006 9/10 JUDGMENT decision, the Honourable Supreme Court, in the case of RAMESH B DESAI vs. BIPIN VADILAL MEHTA reported in 2006 AIR SCW 3768, has held as under in paragraph 16: “A plea of limitation cannot be decided as an abstract principles of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A p lea of limitation is a mixed question of law and fact ” . [emphasis supplied] As stated above, an appeal under section 30 of the Act is maintainable only if a “substantial question of law” is involved. As per the aforesaid judgment of the Apex Court a plea of limitation is a “mixed question of law and fact”. The said question therefore is not a substantial question of law warranting interference by this Court. The appeal is accordingly partly allowed. While the direction given by the Commissioner in the impugned award for payment of 50% penalty is hereby modified and the appellant-Corporation shall be required to pay only 5% (five per cent) penalty on the principal amount, it is directed that the appellant shall pay to the claimants interest at 12% from the date of the accident. Accordingly, the amount of penalty deposited before the Commissioner in excess of 5% shall be refunded to the appellant-Corporation within one month from the date of receipt of the writ of this Court. The respondent shall pay the difference of interest to the FA/4770/2006 10/10 JUDGMENT original claimants within one month from the date of receipt of writ of this court. The appeal, therefore, stands partly allowed. No order as to costs. Award be drawn accordingly. Direct Service is permitted. mathew [H.B.ANTANI, J.]