1 58 fa.538.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL NO. 538 OF 2011 Chief Officer, Pen Municipal Corporation. ... Appellant Versus 1. Smt Jiya Janardan Awaskar 2. Miss. Shrushti Janardan Awaskar. ... Respondents ----- Mr. Rahul D. Oak for the Appellant. Mr. Mandar Kulkarni for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 20 th October, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 This is an appeal under Section 30 of the Workmens' Compensation Act, 1923. The Respondents filed a claim application against the Appellant – Municipal Corporation claiming compensation on account of death of the husband of Respondent No.1 due to an accident taken place during the course of employment of the deceased 2 58 fa.538.11 with the Appellant. 3 The case made out by the Respondents is that the deceased was employed with the Appellant as a driver of a tanker. It is alleged that on 2 nd July, 2006, when the deceased was on duty for the purposes of filling water in the tanker, he sustained electric shock while attempting to start the electric pump and as a result of the electric shock, he died. The application was opposed by the Appellant by filing a written statement in which it is contended that the deceased was an employee of the Health Department of the Appellant and on the relevant date, there was weekly off for the deceased. It is contended that the deceased was not connected with Water Department in any manner. 4 The Tribunal granted compensation of Rs.3,53,320/- with interest at the rate of 10% per annum from the date of the accident. The Appellant was penalized by directing the payment of penalty equivalent to 50% of the compensation amount. 3 58 fa.538.11 5 The submission of the learned counsel appearing for the Appellant is that the deceased had no concern with the Water Department of the Appellant as he was employed in the Health Department. He submitted that on 2 nd July, 2006 was a weekly holiday for the deceased and there is no evidence on record to show that on the holiday he was assigned the duty in the Water Department. He submitted that there was no warrant for granting interest and directing the Appellant to pay the penalty. The learned counsel appearing for the Respondents supported the impugned judgment and order. 6 I have carefully considered the submissions. I have perused the notes of evidence. One Mr.Hiraraman Soma Patil working as a Senior Clerk in the General Administration Department of the Appellant was examined by the Appellant. He stated that the perusal of the muster-roll – cum – wage register shows that the deceased was not paid wages for 1 st and 2 nd July, 2007. However, the document of “Kharde Register” (muster-roll) was shown to the witness, which 4 58 fa.538.11 recorded that on 2 nd July 2007, the deceased had attended the duty. He stated that he is not personally aware whether the deceased attended the duty on 2 nd July, 2007. Perusal of the evidence of Mr.Kamlakar Ganpat Awaskar, who was employed with the Appellant as a driver shows that on the relevant date, the deceased attended the duty and marked his presence in the muster-roll. Same is the version of one Mr.Dilip Vitthal Andre, an employee of the Appellant. The muster-roll produced at Exhibit – 27 shows that the deceased had attended the duty on the relevant date. 7 As far as cause of death of the deceased is concerned, the learned Commissioner has made a reference to the spot panchanama as well as inquest panchanama. The post-mortem notes show that the deceased died due to electric shock. 8 The Appellant had paid a sum of Rs.50,000/- to the Respondent which has been accounted for while granting the compensation. 5 58 fa.538.11 9 Considering the oral and documentary evidence on record, it is not possible to interfere with the finding of fact recored by the learned Commissioner that the accident occurred on 2 nd July, 2006 when the deceased was discharging his duly. No substantial question of law arises in view of the findings of fact based on oral and documentary evidence on record. 10 Once it is found that the Appellant had omitted to pay compensation in terms of the provisions of the said Act of 1923, no fault can be found with the direction to pay interest and penalty. 11 There is no merit in the appeal and the same is accordingly dismissed. 12 Civil Application No.3157 of 2009 does not survive and the same is disposed of. [ A.S.OKA, J ]