IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 148 of 2007 The Oriental Insurance Company Ltd. … Appellant Vs Smt. Pushpa Pandey & others … Respondents With Appeal From Order No. 15 of 2007 Suresh Chand Nainwal … Appellant Vs Workmen Compensation Commissioner & others … Respondents Sri D.S. Patni, learned counsel for the appellant/Insurance Company Sri Raman Kumar Shah, learned counsel for the respondent No. 5 Sri Lalit Miglani, Advocate, holding brief of Sri Pankaj Miglani, learned counsel for the claimant Hon’ble B.C. Kandpal, J. Both these appeals arise out of the same motor accident, therefore, I am deciding the same by this common judgment. For the sake of convenience, I am narrating the facts of Appeal No. 148 of 2007. 2. Appeal No. 148 of 2007 under Section 30 of the Workmen Compensation Commissioner has been filed by the appellant/The Oriental Insurance Company Ltd. against the judgment and award dated 12.12.2006 passed in W.C.A. No. 09 of 2004, Smt. Pushpa Pandey & others Vs Suresh Chandra Nainwal & another whereby the learned Commissioner awarded a sum of Rs. 2,51,314/- to the claimants. Another appeal No. 15 of 2007 has been filed by the appellant/owner of the vehicle against the same judgment and award. 3. Brief facts of the case are that Sri Jai Prakash Pandey (deceased) was engaged as a driver in Bus No. UA12/2483 under the employment of Sri Suresh Chand 2 Nainwal. On 05.11.2003, the deceased was coming from Srinagar to Rishikesh, when he reached at its destination i.e. Rishikesh Depot, the deceased met with an accident due to heart failure. According to the claimant, the deceased used to earn Rs. 3,000/- per month and the claimant was the wife of the deceased. Hence, she filed the claim petition before the learned Workmen Compensation Commissioner for a sum of Rs. 3,50,000/- as compensation. 4. Thereafter, notices were issued to the respondents. On the receipt of the notices, the opposite parties filed their written statements before the learned Workmen Compensation denying the allegations made in the petition. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the learned Workmen Compensation Commissioner decreed the petition for a sum of Rs. 2,51,314/- in favour of the claimant. It has further directed that Suresh Chandra Nainwal shall deposit Rs. 30,000/- with the court below as penalty. 5. Feeling aggrieved by the aforesaid judgment and award, the appellant/Oriental Insurance Company Ltd. has preferred this appeal before this Court for quashing the same and Suresh Chandra Nainwal also preferred another appeal for quashing the penalty order passed against him. 6. Heard Sri D.S. Patni, learned counsel for the appellant/Insurance Company, Sri Raman Kumar Shah, learned counsel for the respondent No. 5, Sri Lalit Miglani, Advocate, holding brief of Sri Pankaj Miglani, learned counsel for the claimant and perused the record. 3 7. Learned counsel for the appellant/Insurance Company has submitted before the Court that the deceased died due to heart attack and the death of the deceased was a natural death and his death has no nexus with his employment. He has further submitted that the insurance cover was valid only for the accidental purposes, which occurs during the course of the employment and in this way, present petition was not maintainable under the Workmen’s Compensation Act, 1923. The Insurance Company was liable to pay compensation in the event when the death was caused during the course of his employment. He has submitted that the deceased reached at Rishikesh between 02:30 to 03:00 p.m where as the time of the death was 04:00 p.m. and it clearly indicates that the deceased died much after his employment period. Therefore, the impugned judgment and award is liable to be quashed. 8. After hearing learned counsel for the appellant as well as going through the entire record, I do not find any force in the submission advanced by learned counsel for the appellant/Insurance Company. As far as the submission advanced by learned counsel for the appellant is concerned that the deceased died to natural death and there is no connection between his death and his employment, it is well established that it is not necessary for the dependents of the deceased workman to prove that the deceased was engaged in some exceptional work of a particular kind, which had caused excess strain on the deceased so as to result in his death. If the work in which the workman was engaged was likely to accelerate death, it could be said that there was proximate nexus between the death and employment. It is the case of the claimant that the deceased soon after reaching to depot suffered heart attack, due to strain and stress of the work. 4 Therefore, the heart attach suffered by the deceased can very well be said to have nexus to the employment and work carried out by him soon before his suffering heart attach. The learned Workmen Compensation Commissioner has rightly held that the reason of death was due to strain of work. 9. Learned counsel for the appellant has not raised any submission with regard to the quantum of compensation. 10. As far as the quantum of compensation is concerned, the learned Workmen Compensation Commissioner on the basis of the evidence available on record considered the monthly income of the deceased on the basis of the minimum wages i.e. Rs. 2,966.41. The court below considering the age of the deceased as 45 years adopted the factor of 169.44. The learned Workmen Compensation Commissioner calculated the amount of compensation, considering the factor given to schedule 4(a) of the Workmen Compensation Act, 1923 and awarded Rs. 2,51,314/- in favour of the claimant. I also do not find any calculation error in the impugned judgment and award. The amount awarded by the learned Workmen Compensation Commissioner is just and proper. I do not find any infirmity in the impugned judgment and award passed by the court below. 11. Accordingly, the Appeal No. 148 of 2007 is dismissed. No order as to costs. 12. In Appeal No. 15 of 2007, Sri R.K. Shah, learned counsel for the appellant has submitted before the Court that the learned Workmen Compensation Commissioner without any specific finding imposed the penalty of Rs. 30,000/- upon 5 the appellant, which appears to be illegal and arbitrary in the eye of law. 13. The sole controversy in this case is that as to whether the penalty amount of Rs. 30,000/- could be imposed against the employer by the Workmen Compensation Commissioner without following the provision of Section 4A(3)(b) proviso. The aforesaid section reads as under:- “4A Compensation to be paid when due and penalty for default: 1) Compensation under Section 4 shall be paid as soon as it falls due. 2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim. 3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and 6 b) 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. Explanation – For the purposes of this sub-section, “scheduled bank” means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). (3-A) The interest payable under sub-section (3) shall be paid to the workman or his dependant, as the case may be, and the penalty shall be credited to the State Government.” 14. The record of the court below reveals that the Workmen Compensation Commissioner during the proceedings pending before him did not issue any notice to the employer for giving him a reasonable opportunity to show cause as to why the penalty should not be imposed against him. 15. Therefore, the impugned order passed by the Workmen Compensation Commissioner imposing the penalty against the employer is against the provision of law. This court in Appeal From Order No. 171 of 2001 has clearly held that the order of payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause as to why it should not be passed. 7 16. In view of the aforesaid position in the light, the judgment and award passed by the learned Workmen Compensation Commissioner directing the employer to make the payment of penalty amounting to Rs. 30,000/- is liable to be set aside. However, it is open for the Workmen Compensation Commissioner to pass appropriate order after affording the reasonable opportunity to the employer to show cause as to why the penalty should not be imposed against him. 17. With the aforesaid observations, Appeal No. 15 of 2007 is liable to be allowed. The impugned judgment and award passed by the Workmen Compensation Commissioner pertaining to the direction issued against the employer imposed penalty upon him is hereby set aside. 18. The amount, if any, deposited by the employer before the court below shall be refunded to the employer. 19. Let the copy of this order be placed in Appeal No. 15 of 2007. (B.C. Kandpal, J.) 23.12.2008 ASWAL