1 F. A No. 228/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 228 OF 1994 Ganpat S/o Bansi Lad, Age : Major, Occu. : Driver, R/o Amrapur, Tq. Pathardi, District Ahmednagar. .. Appellant Versus 1. Haji Anwar Abba Husen, Age : Major, Occu. : Business, R/o Sangamner Road, Shrirampur, Dist. Ahmednagar. 2. Branch Manager, The Oriental Insurance Co. Ltd., Dada Joshi Building, Shivaji Cross Road, Shrirampur, District Ahmednagar. .. Respondents Shri S. D. Pokharkar, Advocate for the Appellant. Shri A. A. Joshi, Advocate for the Respondent No. 1. Shri S. V. Kulkarni, Advocate for the Respondent No. 2. CORAM : K. K. TATED, J. RESERVED FOR JUDGMENT DATE : 01.12.2010 JUDGMENT PRONOUNCED DATE : 09.12.2010 2 F. A No. 228/1994 JUDGMENT : . Original claimant challenges judgment and award dated 05th May, 1992 passed by Ex-officio Commissioner of Workman Compensation and Judge, Labour Court, Aurangabad in Application W.C. No. 28/1989 on the ground that though the appellant/original claimant produced satisfactory evidence on record in support his claim of Rs. 67,200/-, the Commissioner awarded only Rs. 38,815/- that also without any penalty and/or interest. 2. It is the case of appellant/original claimant that he was serving as cleaner with respondent No. 1 on truck No. MWA 7306. The respondent No. 1 is owner of the said truck. He was getting Rs. 600/- per month as wages and Rs. 10/- per day as daily allowances. When he was on duty on the said truck on 21st February, 1989, the truck met with an accident near Harsul, District Aurangabad. In the said accident the appellant suffered fracture injuries on his leg. He was admitted in the Medical College Hospital for treatment. His left leg was imputed above the ancle joint. On account of imputation of the left leg, he was unable to do the job as cleaner. Now he can do any manual job as, he is to walk with the help of clutches. He studied upto 8th 3 F. A No. 228/1994 standard. 3. After the accident on 21st February, 1989, he issued notice dated 21st August, 1989 to both the respondents U/Sec. 10 of the Workmen's Compensation Act calling upon them to make payment of Rs. 67,200/- and 50% of the said amount as penalty with interest at the rate of Rs. 6% from 21st February, 1989. 4. As both the respondents failed to make the payment, the appellant filed Workmen's Compensation Appeal No. 28/1989 before the Commissioner for Workmen's Compensation and Judge Labour Court, Aurangabad claiming sum of Rs. 67,200/- and 50% of the sum as penalty and Rs. 6% interest on the total amount. He filed the said application on 27th October, 1989. 5. After service of notice from the office of Commissioner, the respondent No. 2/Insurance Company filed their written statement dated 27th August, 1990. The respondent No. 2 denied the appellant's claim. They further denied the issuance of notice U/Sec. 10 of the said Act. 6. It is further stated that, since the summons issued from office of the Commissioner, they called upon appellant to submit 4 F. A No. 228/1994 doctor's disability certificate for deciding his entitlement to compensation. As the applicant failed to submit the disability certificate, they called upon the appellant to approach their doctor Mr. Mutha at Ahmednagar for deciding the disability. Pursuant to the said letter, the appellant approached Dr. Mutha at Ahmednagar on 16th August, 1990. Dr. Mutha certified 70% disability. Pursuant to the said certificate, they decided to pay the compensation in the office of Commissioner by cheque dated 27th August, 1990 after deducting Rs. 700/- which was paid by the respondent No. 1 to the appellant when he was in the hospital. Though the respondent No. 1 duly served, he failed to file his written statement. 7. Heard both the sides at length. Learned counsel appearing on behalf of appellant/original claimant submits that, learned Commissioner failed to consider that the appellant was earning sum of Rs. 600/- per month and daily bhatta at Rs. 20/- per day. 8. He further submits that the Commissioner erred in coming to the conclusion that the appellant is entitled to sum of Rs. 38,815/- only. His contention is that the Commissioner has taken into consideration appellants monthly salary Rs. 210/- per month 5 F. A No. 228/1994 and Rs. 10/- per day as allowances. On this calculation the Commissioner held that applicant was earning a sum of Rs. 510/- per month. Considering the total earning of applicant in the sum of Rs. 510/-, learned Commissioner calculated compensation as per Schedule of Workmen's Compensation Act amounting to rupees 38,815/-. 9. He further submits that the learned Commissioner erred in coming to the conclusion that respondents are not liable to pay interest and penalty on the said amount on the ground that applicant failed to submit disability certificate to them at the time of calling upon them to make the payment of compensation. 10. He further submits that, learned Commissioner ought to have awarded compensation at the rate of Rs. 600/- p. m. and also additional compensation on daily allowances at the rate of Rs. 20/- per day. He further submits that the learned Commissioner considered only 70% disability. 11. He submits that considering the type of work which the applicant was doing before the accident, learned Commissioner should have decided the compensation on the basis of 100% 6 F. A No. 228/1994 disability, because it is not possible after the accident for the appellant to work as a cleaner on any motor vehicle. He further submits that learned Commissioner should have directed the respondents to pay interest as well as penalty as per the said Act. 12. In support of his contention about the interest and penalty, he relied on following authorities : I. 1976 A.C.J. 141 Pratap Narain Singh Deo v. Shrinivas Sabata. II. 1991 ACJ 1065 Ramcharan and others v. Karyapalan Yantri, Lok Nirman Vibhag. III. 1991 ACJ 1044 Baru Ram v. Labour Officer, Sonepat and others. IV. 1996 ACJ 3 Oriental Insurance Co. Ltd. v. Chandri and others. V. 1996 ACJ 644 United India Insurance Co. Ltd. v. L. N. Tamuly and others. 13. Learned counsel appearing on behalf of appellant submits that the learned Commissioner should have considered the 100% disability considering the job of the appellant before the accident. In support of this submission he relied on following authorities. i. 1991 ACJ 1079 Balbir Sing v. State of Himachal Pradesh. ii. 1996 ACJ 102 K.P. Hanumantha Gowda and another 7 F. A No. 228/1994 v. Devaraju and another. iii. 1996 ACJ 627 Janatha Modern Rice Mills v. Satyanarayana. iv. 1996 ACJ 1253 Hanumantha Gowda Vs. Devraju. 14. Learned counsel Mr. Joshi, appearing on behalf of respondent No. 1/owner of the vehicle submits that, there was no delay on the part of Insurance Company to make the payment. He submits that they received summons from the office of learned Commissioner on 26th March, 1990 and thereafter, immediately Insurance Company made the payment on 30th November 1990. He submits that as the appellant failed to produce doctor'ss certificate showing the disability, Insurance Company instructed him to appear before Dr. Mutha and after obtaining said certificate Insurance Company made payment. Therefore, it took near about six months to make the payment from the date of receiving notice from learned Commissioner. 15. He submits that Dr. Mutha categorically certified 70% disability of appellant. He further submits that as the appellant failed to produce any documentary evidence about his salary before the learned Commissioner, the learned Commissioner rightly held that appellant was earning a sum of Rs. 210/- per month and Rs. 10/- per day as daily allowances. 8 F. A No. 228/1994 16. He submits that the Commissioner has rightly held that appellant is not entitled for interest and penalty on the amount awarded towards compensation because since they received summons in the matter, Insurance Company immediately paid the entire amount. Therefore, he submits that appeal is liable to be dismissed with costs. 17. Learned counsel Mr. Kulkarni appearing on behalf of respondent No. 2/Insurance Company submits that learned Commissioner considered the facts and circumstances on record and rightly awarded compensation in the sum of Rs. 38,815/-. He further submits that, there was no delay on their part to make the payment, since they received the summons from the office of learned Commissioner, they immediately called upon appellant to submit doctor'ss disability certificate along with other documents for calculating the compensation. He submits that, the appellant failed to submit those documents immediately and, therefore, they directed him to contact Dr. Mutha at Ahmednagar for disability certificate. He submits that on receiving doctor's certificate and other documents they immediately made the payment to the appellant. 9 F. A No. 228/1994 18. He further submits that the learned Commissioner rightly held that the appellant was not entitled to interest and penalty as there was no delay on the part of respondent in making the payment. He submits that applicant is not entitled for compensation on the basis of 100% disability. 19. He submits that the injuries sustained by the applicant are not scheduled injuries as stated in Schedule 1 Part - II. As the said injury is not scheduled injury, the applicant should have called upon Dr. Mutha as a witness to justify the 100% disability. 20. He submits that U/Sec. 25 of the said Act the method of recording evidence is given in respect of disability certificate. As the applicant failed to call Dr. Mutha for proving 100% disability, he could not claim the same. Learned counsel appearing on behalf of respondent No. 2/Insurance Company submits that in any case in view of the judgment of the Apex Court in the matter of Ved Prakash Garg v. Premi Devi and others reported in (1997) 8 SCC 1. Insurance company is not liable to pay the penalty U/Sec. 4-A of the said Act. For this submission he relies on para 13 and 14 of that judgment. In para 14 the Apex Court held thus : 10 F. A No. 228/1994 "So far as this penalty amount is concerned it cannot be said that it automatically flows from the main liability incurred by the insured employer under the Workmen's Compensation Act. To that extent such penalty amount as imposed upon the insured employer would get out of the sweep of the term "liability incurred" by the insured employer as contemplated by the proviso to Section 147(1)(b) of the Motor Vehicles Act as well as by the terms of the insurance policy found in provisos (b) and (c) to sub- section (1) of Section II thereof. On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner, Sections 3 and 4-A(3)(a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4-A(3)(b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Commissioner." 11 F. A No. 228/1994 21. The learned counsel appearing on behalf of respondent No. 2/Insurance Company submits that if the doctor is not examined by the claimant, then in view of Sec. 25 of the Workmen's Compensation Act 1943, the disability certificate cannot be considered at the time of fixing compensation. 22. He submits that evidence of medical witness is condition precedent for assessment of disability so as to enable the workman to claim compensation under the Workmen's Compensation Act. In support of this submission he relies on judgment in the matter of Narayan Chakraborty v. Swapan Debnath 2009 ACJ 807. On the basis of this submission, learned counsel appearing on behalf of respondent No. 2/Insurance Company submits that, there is no substance in the present appeal and same is liable to be dismissed. 23. I have gone through the record and proceedings of the present case. It is an admitted fact from the record that appellant has not produced a single documentary evidence to show that he was earning sum of Rs. 600/- per month and Rs. 10/- daily allowance when he was working as a cleaner with the respondent No. 1. For want of evidence on record learned 12 F. A No. 228/1994 Commissioner rightly considered the monthly income of applicant at Rs. 510/- including Rs. 10/- daily allowances and awarded compensation in the sum of Rs. 38,815/-. 24. The contention of the appellant about the payment of interest can be considered in view of provisions of the said Act. It is specifically stated in Sec. 4-A that claimant is entitled for interest at the rate of Rs. 6% per annum (as applicable on the date of accident). It is an admitted fact that learned Commissioner without giving any reason declined to award interest to the appellant. In view of provisions of Sec. 4-A of the Act, appellant is entitled to interest on the amount awarded by the learned Commissioner at the rate of Rs. 6% per annum. 25. Though the learned counsel appearing on behalf of appellant relied on above mentioned authorities in support of his contention that appellant is entitled for penalty on the amount awarded by the learned Commissioner, it is not possible to grant the same on the facts and circumstances of the present case. Those authorities are distinguishable on facts. Admittedly there was delay on the part of Insurance Company and employer, in making the payment of compensation. That is not the case in the present matter. There is not so much delay on the part of 13 F. A No. 228/1994 Insurance Company and employer so as to saddle them with penalty. 26. The contention raised by the learned counsel appearing on behalf of appellant about the penalty is not maintainable as the facts and circumstances of the present case. In the present case, since the summons received from the office of learned Commissioner, the respondent No. 2 Insurance Company immediately called upon the appellant to produce doctor'ss disability certificate and other documents for calculating the compensation payable to him. As he failed to do so, respondent No. 2 directed the appellant to appear before Dr. Mutha at Ahmednagar for certifying disability. Since Dr. Mutha issued a certificate, the respondent No. 2 immediately paid compensation as per their calculation. Therefore, it is not possible to hold that, there was delay on the part of respondents to pay the compensation. Therefore, appellant is not entitled for any penalty on the amount awarded by the learned Commissioner. 27. Though the learned counsel appearing on behalf of appellant submitted that considering the injuries sustained by the appellant, now it is not possible for him to work as a cleaner on any vehicle to be treated as 100% disability. I have gone 14 F. A No. 228/1994 through the judgment in the matter of i. 1991 ACJ 1079 Balbir Sing v. State of Himachal Pradesh, ii. 1996 ACJ 102 K.P. Hanumantha Gowda and another v. Devaraju and another, iii. 1996 ACJ 627 Janatha Modern Rice Mills v. Satyanarayana, iv. 1996 ACJ 1253 Hanumantha Gowda Vs. Devraju. cited supra relied by the appellant. It is to be noted that for proving the disability, claimant has to call concerned doctor as witness as provided U/Sec. 25 of the said Act. It is mandatory to call the doctor for proving disability in view of the judgment in the matter of Narayan Chakraborty v. Swapan Debnath 2009 ACJ 807. Head note of the said judgment is thus : "Workmen's Compensation Act, 1923, sections 4(1) (C) and 25, second proviso - Permanent partial disablement - Compensation - Evidence of medical witness - Driver sustained comminuted compound fracture in right and left tibia and suffered permanent disablement - Workman claimed compensation and produced disablement certificate issued by Medical Board and discharge certificate of the hospital but examined no doctor - Certificates were not challenged by opposite parties - Whether the Commissioner was justified in rejecting the claim for compensation for want of examination of any medical officer - Held; yes; evidence of medical witness is a condition precedent for assessment of 15 F. A No. 228/1994 disability so as to enable the workman to claim compensation under Workmen's Compensation Act." 28. In the present case appellant failed to call Dr. Mutha to support his case about 100% disability. Not only that in a certificate issued by Dr. Mutha it is specifically stated that the appellant suffered 70% disability only. Therefore, the contention raised by the appellant about the 100% disability cannot be accepted and the same is rejected. 29. Learned counsel appearing on behalf of appellant submitted that the respondent Nos. 1 and 2 in collusion defeated the appellants lawful claim, because the advocate on record of Insurance Company before the Commissioner also filed vakalatnama of respondent No. 1/owner of the vehicle. Though the common vakalatnama was filed on behalf of Insurance Company and owner, the written statement was filed on behalf of insurance company only. This objection cannot be considered at this stage, because same was neither raised before the learned Commissioner nor in appeal memo. 30. In view of above mentioned facts and circumstances I hereby hold that appellant is not entitled for additional compensation or penalty, but the appellant is entitled to interest 16 F. A No. 228/1994 at the rate of Rs. 6% per annum on the amount awarded by the learned Commissioner, Workmen's Compensation according to law. Therefore, the appeal is partly allowed. The respondents jointly and severally shall pay interest on the amount of Rs. 38,815/- from the date of application till realisation at the rate of 6% per annum within two months from today. With this modification appeal is disposed of. [K. K. TATED, J.] bsb/Dec. 10