+ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fcl No......^;Z.o../2Q08 fakesh Agrawal S/o. Shri Gulab Chandra Agrawal, aged aboutSl^ears, R/o. Sharda Computers SH.Q Sharda Compufers, N.T.P.C., Darri, Tahsil Katghor?, Distt. Korba (C.G.) ,y \---^' R.R. 80- l.Ko----:-'^t(,.^^ ^^ b^ s"" ;--^^... v& ited......--^--t^)' ^^a^^~ ADpellant (Non-Applicant before the Ld. Commissioner) ^.- X& < Commissioner for Workmen's Compassion Act Labour Court, Korba, District-Korba (C.G.) '. Chandramani Shrivas S/o. Shri Goverdhan Prasad Shrivas Caste _ Shrivas, aged about 26years, R/o Mudapar, House No. 340, Ward No. - 19, Thana - City Kotwali, Korba, Tahsil & District-Korba (C.G.) Respondents (Applicant before the Ld. ^^fej' ^ Commissioner) CLAIMED VALUED AT Rs. 1.47.995.20 APPEAL UNDER SECTION 30 OF W-ORKMEN'S COMPENSION ACT AGAINST AWARD DATED 2CFTil.20Q7 COPY APPLIED ON 26.11.2007, COPY DELIVERED ON 09.01.20008 PASSED BY LEARNED COMMISSIONER FOR WORKMEN'S COMPENSION ACT fLABOUR COURT. KORBA1 IN CASE NO.'-'r27w.C.ACT/2005fF1 ORDERING THE APPELLANT TO DEPOSIT COMPENSION OF RS. 81.376.00 ALONGWITH 9% INTEREST FROM THE DATE OF FILLIN6 OF THE APPLICATION & RS. 30.000/- AS PENALTY WITH 30 DAYS. 4-' ..*. "'< ^ ^SKS^>S: ^ ""-- HIGH COURT OF CHHATTISGARH AT BILASPUR SINGLE BENCH: SHRI G. MINHAJUDDIN, J. M.A.fC) No.376 OF 2008 Appellant Rakesh Agrawal Vs Respondents Commissioner for Workmen's Compensation Act, Korba and another Present: Mr. NK Vyas, counsel for the appellant. Mr. PK Patel, counsel for respondent No.2. ORDER(Oran >th (9"'September,2011) 1. This appeal has been filed by the appellant/employer under Section 30 of the Workmen's Compensation Act, 1923 against the award dated 20.11.2007 passed by the Commissioner for Workmen Compensation Act, Labour Court, Korba, in Case No. 12/WC Act /2005 (F), whereby and whereunder the appeilant/employer has been ordered to pay Rs.81,376 as compensation and Rs.30,000/- as penalty and has been further ordered to pay interest @ 9% per annum on the compensation amount from the date of presentation of the petition till its realization. 2. Brief facts of the case are that respondent No.2 was working under the appellant/employer on the post of Computer Operator. On 30.10.2002 respondent No. 2 was sent to Deepka by the appellant for computer fitting. In compliance thereof, respondent No.2 went to Deepka along with appellant's younger brother Natwar Agrawal. After finishing the work, while they were returning to Korba by motorcycle at about 9.10 pm, at that time one unknown Maruti Van dashed the said motorcycle. As a result, Natwar Agrawal died on the spot and respondent No.2 sustained grievous injuries. At the time of accident, respondent No.2was 26 years and getting Rs.1500/- per month as salary. Since the appellant/employer did not pay any compensation to respondent No.2 for the injuries sustained in the said accident, he filed a claim petition before the Commissioner for Workmen's :.-'.^^.^^'^^^-^S7t:A.^''P^' .-A-*'i^a>iii^_..> ^".r»~~!;'"»'s .^f N ^t^.^^s^. "EA-kAsagiiI' •'^^nnft^^-^y / Y Compensation, Korba (in short "the Commissioner") under' Section 10 ofthe Workmen's Compensation Act, 1923. 3. Heard learned counsel for the respective parties, perused the Lower Court Record (LCR) as also the impugned award. 4. Learned counsel for the appellanVemployer has contended that the respondent was never in the employment of the appellant and the learned Commissioner has grossly erred in holding that at the relevant point of time, he was in the employment of the appellant and the acddent had arisen out of and in the course of employment under the appellant. 5. Learned counsel has further contended that though the disability certificate filed by respondent No.2 has not been proved by examining any of the members of the Medical Board, even then the learned Commissioner has held that the respondent/workman sustained injuries resulting in 42% permanent disability, whereas as per statement of the respondent/workman himself, there was no loss of earning capacity subsequent to the accident. 6. Learned counsel has also contended that the provision enshrined in the proviso to clause (b) of sub-section (3) of Section 4A of the Employees Compensation Act, 1923 (in short "the Act") is mandatory in nature. However, in the instant case, without complying with the said provision and without affording opportunity of showing cause to the appellant/employer, the learned Commissioner has imposed Rs.30,000/- as penalty, which is contrary to law and not sustainable. 7. On the contrary, learned counsel for respondent No.2/workman has supported the impugned award and submitted that the award impugned is quite legal and proper and does not call for any interference by this Court. 8. From perusal of the material available on record and the impugned award, it is clear that thedisability certificate, which has been marked as Ex.P/1, has not been proved as per provisions of the Evidence Act, 1872 as none of the members of the District Medical Board issuing the said certificate has been examined to prove the same. In the absence of examination of \: •s!SSKg!sss^ss^^!3s^-^tEjjKB^'i it£^SSSSS^S»f^^. any ofthe members ofthe Medical Board, the Commissioner has held that it has been proved that the respondent/workman on account of injuries sustained in the accident has incurred 42% permanent disability. In addition to this, it is also clear that before imposing Rs.30,000/- as penalty, the learned Commissioner has not complied with the mandatory provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act, which requires that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the.employer to show cause why it should not be passed. Thus, the order imposing Rs.30,000/- as penalty cannot be sustained in law. As such, the matter requires reconsideration at the end of the Commissioner. 9. In the result, the appeal is allowed in part and the impugned award dated 20.11.2007 is set aside and the matter is remitted back to the Commissioner with a direction to decide the matter afresh after affording reasonable opportunity to the parties for adducing evidence, filing documents etc. The parties shall be free to agitate all the points available to them before the Commissioner afresh. The Commissioner shall dispose of the case expeditiously, preferably within a period of three months from the date of appearance of the parties. 10. The Commissioner shall, before imposing penalty under clause (b) of sub-section (3) of Section 4A of the Act, give reasonable opportunity for showing cause to the appellant/employer and then only, pass any order regarding imposition of penalty. 11. Attention of the Commissioner has to be drawn towards the fact that as per clause (a) of sub-section (3) of Section 4A of the Act, the minimum rate of simple interest is 12% per annum whereas under the impugned award, interest @ 9% per annum has been awarded. 12. It is clarified that nothing said in this order shall be interpreted as an expression of opinion by this Court on merits of the case and the' Commissioner shall be free to pass a fresh award in accordance with law. \ Bf! ^ 13.The parties shall appear before the Commissioner on 12 October2011. 14. LCR shall be sent back to the Commissioner without further delay. 15. No order as tocosts. ^-—-— Sd/- 16.Certifiedcopyasperrules. , G.Minhajjudin Judge y-, b' Pf ^•.y \