1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1064 OF 1992 Dattatraya Layappa Koli (Since deceased by his heirs and dependents.) i) Smt. Meena Dattatraya Koli. Age 25 years, ii) Kumar Latesh Dattatraya Koli, Son, Aged 6 years, iii)Miss Anjali Dattatraya Koli, Daughter, Aged 4 years. iv) Miss. Ashwari Dattatraya Koli, Daughter, Aged 3 years. v) Miss.Anita Dattatraya Koli, Aged 1 year. Applicant Nos. 2 to 5 through their natural guardian Applicant No.1. vi) Smt. Laxmibai Layappa Koli, Mother, Aged 48 years. R/o. Koli Galli,Thorali Ves, Jath, Dist.Sangli. ..Appellants. Vs. 2 Maharashtra State Electricity Distribution Company, through Executive Engineer, O & M, Rural Division, Vishrambag, Sangli. ..Respondents. Mr. Tejpal S.Ingle with Mr. Mangesh Y.Chavan for the Appellants. Ms.A.R.S. Baxi for the Respondents. CORAM :R.S.MOHITE, J. DATE : 6th January, 2010P ORAL JUDGMENT: 1 The appellants have filed this appeal impugning a judgment and order dated 11.10.1991 passed by the Commissioner under the Workmen s Compensation Act declaring that the appellants are only dependents of the deceased Dattatraya L. Koli and holding that they are entitled to receive an amount of compensation as detailed in the said order. The total amount of compensation which has been awarded is Rs.80,664/-. Short grievance of the appellants is that the Commissioner failed in his 3 duty to award interest and penalty which was payable to them in view of Section 4(A)(3)(a) and (b) of the Workmen s Compensation Act, 1923. 2 Brief facts of the case indicates that accidental death of deceased-Dattatraya was caused on 7.8.1990. An amount of Rs.48,523/- was deposited by the employer MSEB only on 12.10.1990. The Commissioner under the Workmen s Compensation Act on receipt of this amount issued notice to the heirs of the deceased and the heirs of the deceased appeared and submitted an application-(U-1) interalia contending therein that the amount of compensation had not been properly calculated. In the course of recording of the evidence, the Commissioner noticed that there was a dispute in respect of the amount of compensation deposited. On scrutiny, he found that what the MSEB had done was that they had calculated eight months wages and averaged the same for the entire year. This was done by the employer because the workmen had 4 remained absent for four months. The Commissioner stated that the mode of calculation of compensation was not proper and hence by an order dated 10.4.1991 below Exh.U-1 he directed the employer MSEB to deposit a further amount of Rs. 31,141/- in the court on or before 10.5.1991. 3 After this order, MSEB deposited an amount of Rs.32,141/-. Thus, total amount of Rs.80,664/- was deposited with the Commissioner and by the impugned order this was distributed to the appellants. 4 From the aforesaid facts, it is absolutely clear that even the deposit of the admitted compensation amount was made after one month from the date when it became fell due. This rendered the employer to pay interest under Section 4(A)(3)(a). It also renders employer liable to pay penalty, if in the opinion of the Commissioner there is no justification of the delay in making the payment of 5 compensation. 5 It is seen that, since the amount of compensation was not directly paid to them, the claimants were required to file an application before the Commissioner on 1.12.1991. On perusing the said application, it is clear that they asked for penalty of 50% of the compensation as the deposit of the compensation had been delayed beyond the period of one month without any lawful excuse. Before the Commissioner, no justification was given by the employer as to why they had not deposited the compensation within the statutory period of one month. Advocate for the respondents stated that no justification was given because no penalty or interest was claimed. In my view, grant of interest or penalty is a statutory requirement and it is the duty of the Commissioner to consider the question as to whether the same was to be granted. The facts of the present case indicates that not only was the payment of compensation 6 delayed beyond the statutory period of one month, even calculations of compensation payable was erroneous as the monthly wages were wrongfully reduced by averaging eight months wages for one year. This wrongful calculation necessiated the Commissioner from passing order dated 10.4.1991 directing further deposit. All these actions on the part of the employer i.e. delaying deposit of the compensation beyond the statutory period of one month and wrongfully calculating the wages thereby reducing their liability were not justifible. In the circumstances, I am inclined to allow this appeal. Appeal is therefore, allowed and additional amounts are directed to be payable to the appellants as per the below mentioned order. ORDER a) The respondents are directed to pay interest at the rate of 6% per annum on the amount of Rs.80,664/- to be calculated from 6.8.1990 to 7 12.10.1990. b) The respondents are directed to pay interest at the rate of 6% p.a. on the amount of Rs.32,141/- from 12.10.1990 to 31.9.1992. c) The respondents are directed to pay penalty to the appellants calculated at Rs.40,332/-. d) The aforesaid additional amounts will be deposited with the Commissioner under the Workmen s Compensation Act/Judge, Labour Court, Sangli within a period of 12 weeks from today and will be distibuted in the same proportion as has been directed by the impugned judgment and order. e) Appeal stands disposed off. f) The record and proceeding be sent back to the trial court forthwith. ( R.S. MOHITE, J.) 8