FA/71/1993 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 71 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 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 ? ====================================== KANUBHAI D PARMAR Versus DIVISIONAL CONTROLLER-GSTC AND ANOTHER ====================================== Appearance : MR PM THAKKAR for Appellant. MR HS MUNSHAW for Respondents. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 12/08/2008 ORAL JUDGMENT 1. By way of this appeal, the appellant-original applicant has challenged judgment and order dated 6th April 1991 passed by Commissioner of Workmen Compensation, Labour Court, Rajkot in W.C.N.F. Case No.1/1985. FA/71/1993 2/4 JUDGMENT 2. The case of the original claimant is as under: 3. The original applicant – appellant herein is serving as a conductor and his monthly salary is Rs.482/-. On 21-5-1983, the appellant was on duty in Rajkot-Udhna Express bus, and because health was not well, he took treatment from Dr.B.N.Rajpura and said doctor has also given a certificate to that effect, which was given to Traffic Controller of Una Depot. However, since there was no alternative arrangement, inspite of bad health the appellant was asked to attend his duty. After reaching Rajkot, the appellant has contacted his family doctor. However, since there was no improvement in his health, on 24-5-1983, he was admitted in Government Hospital, Rajkot. Thereafter, as per the opinion of doctor, he was shifted to Civil Hospital, Ahmedabad, where his left leg was operated. Therefore, the appellant has stated that since he was not given leave inspite of his bad health, his health has deteriorated further and, therefore, the corporation is required to pay compensation to the appellant. A notice in that regard was issued, but since no reply was given to it, the appellant has filed aforesaid case before Workmen Compensation Commissioner. 4. The claim of the workmen was resisted by the respondents by filing reply. It is stated by the respondents that it cannot be said that any incident has occurred while the appellant was on duty and, therefore, no amount is required to be paid to the appellant. It is also stated that earning capacity of the appellant has not reduced and the respondents are taking light work i.e. table work from the appellant. In view of these averments, it is prayed that the claim of the appellant may be dismissed. 5. After considering the evidence on record, Workmen Compensation Commissioner partly allowed said application by considering disability of FA/71/1993 3/4 JUDGMENT the appellant at 50% and awarded Rs.14,700/- to the appellant and further ordered to pay 12% interest on said amount from 1-1-1985. Being aggrieved by it, the appellant has filed present appeal. 6. Learned advocate for the appellant has raised contention that the Workmen Compensation Commissioner committed an error by not granting penalty under Section 4-A of the Workmen Compensation Act, when the injury in question has arisen during the course of employment. He also submitted that instead of granting interest from 1-1-1985, it should have been awarded from 22-5-1983, i.e. from the date of accident. He also submitted that an error is committed by Workmen Compensation Commissioner by not granting penalty to the tune of 50% of the amount of compensation. Therefore, he submitted that the amount of compensation should be increased by modifying the impugned order. In support of his submissions, learned advocate for the appellant has also relied upon decisions of Apex Court in the case of National Insurance Co. Ltd. v. Mubasir Ahmed and Another reported in AIR 2007 SC 1208 as well as decision in the case of Kerala State Electricity Board and Another v. Valsala K. and Another reported in AIR 1999 SC 3502. 7. Learned counsel for the respondents submitted that the appellant has not sustained any injury during the course of employment, and since the Workmen Compensation Commissioner has granted compensation after considering relevant material and certificate of doctor, the award impugned herein may not be interfered. He also submitted that since there is no decrease in earning capacity of the appellant and since the appellant is continuing in service, the amount of compensation may not be increased by this Court. In view of above submissions, he prayed that this appeal may be dismissed. FA/71/1993 4/4 JUDGMENT 8. I have considered the submissions made on behalf of both the side and also gone through the judgment of the trial Court as well as decisions cited before me and other relevant documents. In my view, the decisions relied upon by the appellant are not helpful to him because the interest awarded by the the Workmen Compensation Commissioner is already on higher side in view of provisions of law prevailing at the relevant time. After considering disability certificate issued by Civil Hospital, Rajkot, which is at Exh.41, and after considering pay slip of the appellant, which is at Exh.70 as well as after considering all other relevant documents, the Workmen Compensation Commissioner has rightly awarded Rs.14,700/- as compensation to the appellant, which does not require any upward revision. Not only that, the Workmen Compensation Commissioner has also awarded interest for delayed payment, therefore, in my view, the amount awarded is just and proper. So far as question of penalty is concerned, I am of the view that it is a discretion of the authority and if such discretion is not exercised, this Court is not required to interfere with the award on the question of penalty. I am in complete agreement with the reasonings given and finding arrived at by the the Workmen Compensation Commissioner while passing impugned order. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. 9. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. (K.S.Jhaveri, J.) *malek