IN THE HON'BLE HIGH CQURT OF AT BILASPUR (CHHATTISGARHt M.A.(Q No. ^ '2-^- of 2010 APPELLANT Non-applicant No.2 \^"!h ^^&^ A ^•••"' Bn- "..^y '^^.- ^^<" ^t^ t^ RESPONDENTS i y^ttam Chand Jain, aged about 54 years, son of Late D.C. Jain Contractor, R/o.Village Gunderdehi, District Durg (C.G.) Versus Agnuram Markam, S/o. late Persadi Ram, aged about 48 years, ^ Smt. Gangotri, W/o. ^ Agnuram, aged about 45 years Dineshwar Markam, Son of Agnuram, aged about 14 years, through Guardian Amicus Curie Father Agnuram Markara, All R/o. Village Surhi , Gram Panchayat Surhi, ^Thana Narharpur, District Kanker (C.G.) APPELLANTS/CLAIMANTS Contractor N.C. Naher, J.K.Villa, Malviya Nagar Durg RESPONDENTNO.l -^ >) Executive Engineer, Office of Pradhan Mantri Gram Sadak Yojna, Kanker, District Kanker (C.G.) RESPONDENT No.3 :6) State of Chhattisgarh through Collector Kanker, District Kanker (C.G.) RESPONDENT No.4 '/3BS ':ai^ ^ ; :7) Ramswaroop, son of Bharosa ^ Ram Mandawi aged about 45 years, R/o. Chhindbharri,; P.S. Arjuna, District Dhamtari (p.G.) ^ APPEAL UNDER SECTION 30 OF WORKMENS' COMPENSATION ACT ^ HIGH COURT OF CHHATTISGARH AT BLLASPUR Appellants/ Claimants Respondents M.A.(C) No.870 OF 2009 Agnuram Markam and others Vs Contractor NC Naher and others Appellant/ Non-Applicant No-2 Respondents M.A.(ClNo.922 OF 2010 Uttam Chand Jain Vs Agnuram Markam and others Present: Mr. Alok Dewangan, counsel for the appellants in MAC Nb.870/09 and for respondents No. 1 to 3 in MAC No.922/10. Mr. HB Agrawal, Sr. Adv. With Mr. Pankaj Agrawal, Adv. forthe appellant in MAC No.922/10 and for respondents No. 1& 2 in MAC No.870/09. Mr. Rajendra Tripathi, Panet Lawyerforthe State. Mr. Manoj Chouhan, counsel for respondent No.7 in MAC No.922/10. ORDER (Passedon \^ 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/50/WC Act/Fatal/2007, they are being disposed of by this common order. 2. MAC No.870/09 has been fiied by the dependants parents and brother of deceased Dinesh Kumar Markamfor grantof interest on the award amount and for imposing penalty under Section 4A(3)(b) of the Workmen's CompensationAct, 1923 (in short "the Act, 1923"). 3. MAC No.922/10 has been filed by theemployer Uttam Chand Jain for setting aside the awarddated 16.2.2009. 4. For the sake of convenience, parties shall hereinafter bereferred 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 toVillage - Badal under the Prime Minister Village Road Scheme, acontract was given by respondent No.3 to respondent No.1, The said work was being jointly executed by respondents No. 1 & 2. Deceased Dinesh Kumar Markamalong with other persons was working as labour and employee of respondents No. 1 & 2 on 17.1.2006 and was digging muroom from themuroom mines. All of a sudden, the said mine collapsed and three laboursi.e. Dinesh Kumar Markam, Dilip Netam, and Dharam Raj were buried under the muroom. Immediatelywith the help of otherlabours, 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 Kun>1tar Markam andDharamRaj had sustained serious injuries, who were immediately taken to Masih Hospital, Dhamtari. However, during the course of treatment,Dinesh Kumar Markam died on 15.2.2006 in hospital. A report of theaccidentwas todged at Police Station : Narharpur. On the basis of which, offence under Section 304A/34 of the IPC was registered against respondent No.2 and his supervisor Shyamlal. Since deceased Dinesh Kumar Markamdied 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 hisparents and brother, claimed compensation from the employer and when the same was denied, they filed an application under Section 22 of the Act, 1923 before the Commissioner for grant of compensation with interest and penalty. 6. Learned Commissioner,after affording opportunity of hearing and of adducing evidence toall the parties,passed the impugned award dated 16.2.2009 holding respondent No.2 as employer of deceased Dinesh Kumar Markam at the relevant time and also holding that deathof Dinesh Kumar Markam has been caused on account of accidentarising out of and in the courseof employment and thus, awarded a sum of Rs.2,35,200/- as compensation to the claimants. As.no order Was passed in respect of interest and penalty, therefore, the claimants have filed this appeal i.e. MAC No.870/09 for enhancement of the compensation amount by awarding interest and penalty. a,D 7. MAC No.922/10 has been filed by thecontractor Uttam Chand Jain for setting aside the impugned award dated 16.2.2009 on the ground that deceased Dinesh Kumar Markam had' never been his employee and on the relevant date i.e. 17.1.2006 he was an employee of Ramswaroop, who was transporting muroom in the tractor trolley from muroom mines to the site of work. 8. In MAC No. 870/09 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 wasjustified in not awarding interest under Section 4A(3)(a) of the Act, 1923and penaltyunder Section 4A(3)(b) ofthe Act, 1923?" 9. In MAC No.922/10, filed by the appellant/employer 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 ofdeceased Dinesh Kumar Markam in their application under Section 22 of the 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-3/Executive Engineer and respondent No.l/Contractor NC Naher, underwhich the work of construction of road under Prime Minister Village Road Scheme was given by respondent No.3 to respondentNo.1. ~~ 11. On behalf of the dependents/claimants, two witnesses Agnuram (AW-1)and Narottam (AW-2) were examined; on behalf of respondentsNo. 1 & 2, Shyamlal Sahu (NAW-1) wasexamined, whereas on behalf of respondents No. 3 & 4, Girish Chand Pandey (OIC) wasexamined as NAW-1. 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, deceased Dinesh Kumar Markam was not his employee and in fact, the deceased was working as a labour in the tractor trolley of Ramswaroop, which wasengaged for transportation ofmuroom ?ind 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 statedeven a singleword about the wages being paid to the deceased by Ramswaroop - owner of the tractor trolley. This witness (NAW-1) has, inclear terms, stated that they have maintained an attendance register of the labours and deceased Dinesh Kumar Markam had never been an employee of contractor Uttam Chand Jain. 13. On the contrary, Narottam who has been examined as AW-2 has stated that healong with deceased Dinesh Kumar Markam, Dilip Netam as well as Dharam Rajwas working aslabour ofcontractor Uttam Chand on 17.1.2006 and their wages were being paid by contractor Uttam Chand. This witness was the person, who was presenton the spot at the time of accident and he along with others had removed the muroom and taken out the injured persons froni beneath the muroom. The attendance register, despiteopportunity, 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 cleatthat 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 thework was being executed by him at the relevant time. As T such, the finding of the Commissioner thaton the date of accident i.e. 17.1.2006 deceased Dinesh Kumar Markam was an employee of respondents No.2 Uttam Chand and thedeath occurred due to the accident arising out of and in the course of employment under contractor Uttam Chand is quite legal and based onproper appreciation ofthe evidenceand cannot befaulted with. 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 avaitable 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, 1923, in addition to the compensation amount, the claimants shall also be entitled to interest @ 12% p.a. from the date of expiryof 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 claimedpenalty in para-7 of their claim petition under Section 22 of the Act, 1923 and the samehas 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 hasbeen passed regarding imposition of penalty. 17. In the result: > MAC No.870/09 - the appeal filed by the claimants/dependents - is partly allowed and while confirming the quantum of compensation, it is ordered that the claimantsshall 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) ofthe Act, 1923 i.e. after affording reasonable opportunity of hearing to the parties concerned. > MAC No.922/10 filed by the appellant contractor Uttam Chand Jain, being devoid ofsubstance, is hereby dismissed. > The aforementioned substantial questions of law are answered accordingly. > No order as to costs. Sd/- G. Minhajuddin Judge w