IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WCA) No. 476 of 2005, with FAO (WCA) No. 81 of 2006. Decided on : 18.03.2010 FAO (WCA) No. 476 of 2005 Superintending Engineer, H.P.I.P.H & Others …Appellants. Versus Smt. Devkoo Devi ….Respondent. FAO (WCA) No. 81 of 2006. Smt Devkoo Devi ….Appellant. Versus Superintending Engineer, I & P.H & Others …Respondents. Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting? Yes. FAO (WCA) No. 476 of 2005 For the appellants : Mr. R.P. Singh, Assistant Advocate General. For respondent : Mr. Raman Sethi, Advocate. FAO (WCA) No. 81 of 2006. For the appellant : Mr. Raman Sethi, Advocate. For the respondents : Mr. R.P. Singh, Assistant Advocate General. V.K. Sharma, J. (Oral) Both these appeals being connected matters arising out of the same award are being disposed of by this common judgment. ---------------------------------------------------------------------------------- 1 Whether the reporters of the local papers may be allowed to see the Judgment? No. 2 On the death during harness of late Shri Laiq Ram, who at the relevant time was working as Chowkidar at J.E, Hut, Naina, within the jurisdiction of IPH Sub Division, Sainj, District Shimla, his wife Smt. Devkoo, filed an application for compensation under Sections 4 and 4A of the Workmen’s Compensation Act, 1923 (for short `the Act’). However, it shall be pertinent to mention here at the very outset that as per the impugned order dated 14.3.2005, the Commissioner under Workmen’s Compensation Act, has awarded compensation in favour of wife of the deceased as also his two sons, namely, Madan Lal and Mohinder Lal. In all a sum of Rs. 4,84,236/- has been awarded as compensation including interest. The impugned order dated 14.3.2005, is under challenge before this court by way of the above titled two cross appeals. FAO (WCA) No. 476 of 2005, has been filed and maintained on the strength of the following substantial questions of law:- 1. Whether a workman has to be given compensation in all cases of Death even if the cause of death is not arising out of his employment or is not in the course of his employment and cannot be attributed to his employment. 2. Whether the award of the commissioner is sustainable in the eyes of Law in the absence of any evidence such as Post-Mortem Report or the Medical Opinion with respect to the cause of death of the workman. The cross appeal being FAO (WCA) No. 81 of 2006, has been preferred by the claimant, who is aggrieved by non imposition 3 of penalty for delayed payment of compensation, on the following substantial questions of law:- a. Whether the Workmen Compensation Commissioner has gravely erred by not awarding penalty in favour of the appellants? b. Whether there is willful breach of the mandatory provisions of laws as provided under Section 4A of the Workmen Compensation act, 1923 by the employer?. The undisputed facts are that the deceased was on the employment of the respondents at the material time. It is also convincingly proved that on the fateful day he was on night duty at J.E Hut, Naina, where he suffered Acute Myo Cardial Infection (a heart ailment). He was taken to the nearby Primary Health Centre (PHC), Balag, where he unfortunately died while under treatment. The death certificate Ex.PW-1/A has been proved in evidence by PW-7, Dr. Iqbal Singh. It is also not in dispute that the dead body of the deceased was not subjected to autopsy. According to the claimant, the postmortem was not conducted as the death of the deceased who was suffering from the aforesaid ailment for the past sometime, had occurred under normal circumstances. It being so, there was no need for postmortem examination. Now, while adverting to the substantial questions of law in the first appeal, it would be seen that in view of the materials on record, there cannot be any doubt about the cause of death of the deceased. It has been convincingly proved by the witnesses examined on behalf of the claimant including medical expert that it 4 was on account of Acute Myo Cardial Infection. Accordingly, this question does not survive for consideration and adjudication of this court as a substantial question of law. For the reasons already stated above, lack of postmortem examination is also not very material in the peculiar facts and circumstances of the present case. More so, when it stands established from the evidence on record that the deceased who was a workman was on duty at the relevant time and had died during harness. As already observed medical opinion as to the cause of death of the deceased forms part of the testimony of PW-7, Dr. Iqbal Singh. Against the above backdrop, to my mind, all the parameters for grant of compensation in favour of the claimant(s) for the death of the deceased during harness were fully made out in the present case and no fault can be found with the impugned order dated 14.3.2005. It being so, there is no need for any interference with the same at the hands of this Court. For the reasons stated above, FAO (WCA) No. 476 of 2005, is dismissed being without any merit. For disposal of the cross appeal, it shall be pertinent to observe that the deceased had died on 28.5.2001. Application for compensation was filed on 31.7.2003. It was finally disposed of on 14.3.2005. The appeal by the claimant was filed on 29.8.2005 and by the respondents on 12.7.2005. Both these appeals are under adjudication since then. Sub section (3) (b) of Section 4A of the Act 5 provides as under:- “if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty: Provided 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.” A perusal of the impugned order dated 14.3.2005, would go to show that there is no mention in it about imposition of penalty in terms of sub section 3 (b) of Section 4A of the Act, meaning thereby that the prayer to this effect was impliedly declined. However, the learned counsel for the claimant by relying upon the law laid down by this court in Executive Engineer, B&R, H.P.P.W.D, Solan and another V. Kewal Ram, 2005 ACJ 329; State of Himachal Pradesh and another v. Raj Kumar and others, 2006 ACJ 1565 and Puran Dutt v. Himachal Road Transport Corporation, 2007 ACJ 74, prays for indulgence of this court to impose penalty for delayed payment. Taking into consideration the facts and circumstances of the case and on an over all view of the matter, penalty to the extent of 6% of the amount of compensation, that is, Rs. 3,32,580/- would be just and reasonable and is accordingly imposed. In view of the above the cross appeal succeeds partly and is accordingly allowed in part. 6 Both the appeals stand disposed of in the above terms, with no order as to costs. Let a duly signed copy of this judgment be placed on the records of {FAO (WCA) No. 81 of 2006}, titled Smt Devkoo Devi Vs. Superintending Engineer, I & P.H & Others. Record of court below be sent back. (V.K. Sharma) Judge. 18th March, 2010. Lsp*