ar IN THE HON'BLE HIGH COURT OF CHHATnSGARHATBII.ASPUR APPELLANTS/ Surhi, Gram Panchayat Narharpur, District Kanker, C.G 2. Uttam Chand Jain, Contractor, , CpG- 3. Executive ^ Office of Yojna, 4, State of ^ Through District ^^" APPEAL UNDER SECTION 30_QF^U1E Gram Sadak KankerC.G. Kanker, C.G. \^- HIGH COURT OF CHHATTISGARH AT BILASPUR Appellants/ Claimants Respondents MA.(CLNoA690F 2009 Kachru Ram Netam and another Vs Contractor NC Naher and others ^•-7 AppellanV Non-Applicant No.2 Respondents & M.A,(Clliio.970 OF 2010 Uttam Chand Jain Vs Kachru Ram Netam and others POSTFORORDERON l^ AUGUST.2011 ^ .y^. Sd/- G. Minhajuddin Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Appellants/ Claimants Respondents M,A.(C) .869 OF 2009 Kachru Ram Netam and another Vs Contractor NC Naher and others ADpellant/ Non-Applicant No.2 Respondents M.A.fCl No.970 OF 2010 Uttam Chand Jain Vs Kachru Ram Netam and others Present Mr. Alok Dewangan, counsel for the appellants in MAC No.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 (Passed on \^ August,2011) G. Minhaiuddin, J 1. As both these appeals arise out of the common award dated 16.2.2009 passed by Commissioner for Workmen's Compensation, Labour Court, Jagdalpur, in Case No. B/51/WC Act/Fatal/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 arnount 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^llage_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 and employee of respondents No. 1 & 2 on 17.1.2006 and 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 three of them were taken out. By that time, Dilip Netam had died and two other labours i.e. Dinesh Kumar Markam and Dharam Raj had sustained serious injuries, who were immediately taken to the nearby hospital. A report of the accident was lodged at Police Station : Narharpur. On the basis of which, offence under Section 304A/34 ofthe IPC was registered against respondent No.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 compensation with interest and penalty. 6. Learned Commissioner, after affording opportunity of hearing and of adducing evidence to all the parties, passed the impugned award dated 16.2.2009 holding respondent No.2as employer ofdeceased Dilip Netam at the relevant time and also holding 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 interest and penalty, therefore, the daimants have filed this appeal i.e. MAC No.869/09 for enhancement ofthe compensation amount by awarding interest and penalty. 7. MAC No.970/10 has been filed by the contractor Uttam Chand Jain for setting aside the impugned award dated 16.2.2009 on the grpund that deceased Dilip Netam had never been his employee and on the relevant date i.e. 17.1.2006 he was an employee of <zo Ramswaroop, who was transporting muroom in the tractor trolley from muroom mines to the site ofwork. 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 the employers of the deceased? (ii) Whether the Commissioner was justified in not awarding interest under Section 4A(3)(a) of the Act, 1923 and penalty under Section 4A(3)(b) ofthe Act, 1923?" 9. In MAC No.970/10, filed by the appellanVemployer Uttam Chand Jain, the following substantial question of law is involved for adjudication: "Whether the Commissioner was justified in holding the appellant 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 ofthe 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 to respondent No.1. 11. On behalf of the dependents/claimants, two witnesses KachruFam (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 '•il\ 1;^ '^ve^ '•!l.':;:!" ^ 12. As per version of contractor Uttam Chand Jain - respondent No.2, on the relevant date i.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 supervisor Shyamlal 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 the contrary, 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 their wages were being paid by contractor Uttam Chand. This witness was the person, who was present on the spot 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, but the work was transferred for execution to contractor Uttam Chand Jain, the petty contractor of NC Naher, and the work was 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 cpntractor Uttam Chand is quite legal and based on proper appreciation ofthe evidence and cannot befaulted with., •— <zr2^ 14. So far as non-grant of interest on the compensation amount is concerned, from perusal of the impugned award, it is found that in para-15, the Commissioner has mentioned a judgment of the . Hon'ble Supreme Court in Kamla Chaturvedi Vs. National Insurance Co. Ltd. and others reported in 2009 (120) FLR 149 in which it has been held that the 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 the date of accident. After this, 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 the opinion 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, 1 923, ih 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 in para-7 of their 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. Inthe result: > 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 entitled to interest @ 12% p.a. from the date of expiry of one month after the date of impugned award i.e. 16.2.2009^^___— The Commissioner 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) of the 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 ofsubstance, is herebydismissed. > The aforementioned substantial questions of law are answered accordingly. > No order as to costs. Sd/- G. Minhajuddin Judge