M.A.(C) W; agar/I ......~Mm APPELLANTS : 1. CLAIMANT RESPONDENTS : Q?) NON-APPLICANTS MisceHaneous Amped under SecTion 3O of fhe Workmen ’ Compensafion Ac’r, 1923 ,VMwwwm.» ‘dikizéa NM , Memboi Wd/o Chhotelcl Sohu, aged abouT 28 years, Ku. Santoshi Boi D/o Chhotelcl Sahu aged about IO years, Minor Through legal guardian mother Membai Wd/o Chhofelal Sahu, Bofh are Residence of Basna, Posr‘ Office Basna, District Raipur (C.G.) VERSUS Shyam La! S/o Chandrabhan Agrawal , R/o Basna, POST Office ( Basna, Disiricf Raipur (CG) The Oriental insurance Company Limited, Through: Divisional M .......... a Manager, The Oriental lnsurance Company Limited, Jail Road, Raipur Tehsil and District Raipur (C.G.) / lN THE HIGH COURT‘OF JUDICATURE AT BILASPUR (C.G.l r a“. Wm“. 5 x \zm apg HIGH COURT OF M POST FOR ORDER ON 2‘? SEPTEMBER 2011 Sd/‘ _ G . Minhajudd‘n Judge RJ—FS/ 7z/ h;Q ‘J 4 . 0 .000 GRP 00 1 Appellants Membai Claimants V and another ” Vs Resgondentsl Vs Lal Non—Applicants Shyam Lal and another \ Hz \mvx mm 1m Hm ~\ & HIGH COURT OF CHHATTISGARH AT BILASPUR Present: Mr. SC Verma, counsel for the appellants. Mr. Raghvendra Pradhan, counsel for respondent No.1. Mr. Sudhir Agrawal, counsel for respondent No. 2. ORDER g (Passed on La , 20 1 G. Minhaiuddin, J 1. This appeal has been filed by the appellants/claimants under Section 30 of the Workmen’s Compensation Act, 1923 (in short “the Act, 1923")for enhancement of the award dated 14.12.2006 passed by the Commissioner for Workmen’s Compensation, Labour Court, Raiupr in Case No.2/98/WC Act/Fatal, whereby and whereunder a sum of Rs.1,87,182/— has been awarded as compensation, without awarding interest at the minimum rate of 12% per annum and without passing order regarding imposition of penalty as provided under Section 4(A)(3)(b) of the Act, 1923. 2. Brief facts of the case are that deceased Chhotelal Sahu was working as driver of vehicle Tempo Tracks bearing registration No. M.P.—23 G 8928, belonging to respondent No.1. Respondent No.1 is the owner of the said vehicle, which was insured with respondent No.2 at the relevant time. On 17.10.1997, while working under the employment of respondent No.1, Chhotelal sustained grievous injuries on account of the said vehicle being met with an accident and succumbed to the injuries. At the time of accident, the M.A.(C) No.185 OF 2008 . ”2/ Appellants Membai and another Claimants Vs Respondents] Shyam Lal and another Non-Applicants aw deceased was 30 years of age and was getting Rs.1800/— per month as saiary. The claimants, who are widow and minor daughter of the deceased, being “his legal heirs, filed a claim petition for a total compensation of Rs.1,87,137/— along with interest under various heads. . Learned Commissioner, on close scrutiny of the evidence adduced before it and after affording opportunity of hearing to the parties, passed the impugned award dated 14.12.2006 and awarded a total compensation of Rs.1,87,182/- in favour of the claimants, with a direction to the respondents to deposit the said amount before the Court for payment to the claimants within a period of 30 days from the date of award, failing which they shall be liable to pay simple interest @ 6% per annum on the amount of compensation from the date of filing of the claim petition i.el 22.1 .1998 till its payment. . The substantial questions of law involved in this appeal are as follows: (i) Whether the Commissioner for Workmen’s Compensation was justified in awarding interest @ 6% per annum on the amount of compensation, and that too, from the date of award? (ii) Whether the Commissioner for Workmen’s Compensation was justified in not awarding penalty under Section 4(A)(3)(b) of the Act, 1923? . Heard learned counsel for the parties, perused the record of the lower Court as also the impugned award. . On the basis of material available on record, the Commissioner for Workmen’s Compensation (in short “the Commissioner”) has assessed the monthly income of deceased Chhotelal as Rs.1800/- and age as 30 years, and by applying the relevant factor, has computed the compensation at Rs.1,87,182/—. Respondent No.1/non-apph‘cant No.1 has admitted in his repiyxthat the deceased was in his employment as driver of his Tempo Tracks at the relevant time and he used to pay salary to him. Respondent No.1/employer has also admitted that death of Chhoteiai Sahu had taken place on account of accident arising out of and in the course of empioyment. As such, computation of the amount of Rs.1,87,182/— as compensation appears to be just and proper and cannot be faulted. . Further, the Commissioner has ordered that in case the amount of compensation is not paid within a period of 3O days from the date of award i.e. 14.12.2006, then the respondents shall be liable to pay simple interest @ 6% per annum from the date of presentation of ciaim petition i.e. 22.1.1998 till the payment is made. At this place, it is pertinent to mention that as per provisions of clause (a) of sub— section (3) of Section 4A of the Act, 1923, the employer shall be liable to pay interest at the minimum rate of 12% per annum on the amount of compensation from the date on which the amount had failen due. . ln the instant case, respondent No.1/non—applicant No.1 employer Shyamlal has admitted in his reply that deceased Chhotelal Sahu was, at the relevant time, in his empioyment and he had died in an accident arising out of and in the course of his employment. Thus, in view of this, in fact, the amount of compensation had fatten due on the date of accident itself i.e. 17.10.1997. . As per provisions of Section 4A(2) of the Act, 1923, in case where the employer does not accept theuiiabiiity for compensation to the extent ciaimed, he shall be bound to make provisional payment based on the extent of liability which he accepts. Since in the present case respondent‘NoJ/employer has admitted his liability i,y course that the of deceased his employment, had died therefore, in the accident it was the arising bounden out of duty and of in the the E employer to deposit the amount of compensation within a period of 3O days from the date it had fallen due. However, despite admitting the fact that the deceased was under his employment and he had died during the course of his employment, neither respondent No.1/employer nor respondent No.2/insurer had deposited the amount earlier and the amount of compensation was deposited by respondent No.2/insurer only on 16.1.2007. As such, since the vehicle in question of respondent No.1 stood insured with respondent No.2/insurance company at the relevant time, therefore, respondent No.2 shall be liable to pay the amount of interest @ 12% per annum, at least from the date of presentation of the claim petition i.e. 22.1 .1998 till the date of payment i.e. 16.1.2007. 10. So far as the question of not imposing penalty under Section 4A(3)(b) of the Act, 1923 is concerned, the Commissioner has not assigned any reason in this regard. The above mentioned provision provides that in case there is willful default on the part of employer in paying the compensation to the claimant, then the Commissioner shall impose penalty, which may extent to 50% of the amount of compensation. But before imposing penalty, mandatory provisions of proviso to clause (b) of sub-section (3) of Section 4A of the Act, 1923 have to be complied with, which requires 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". Thus, in view of this mandatory provision, before imposing penaitygbpportunity of hearing has to be afforded to the empioyer by the Commissioner. 11. In the result, the appeal is allowed in part and it is ordered that respondent No.2, being insurer of the vehicle in question, shall pay interest @ 12% per annum, instead of 6% per annum, on the amount of compensation involved in the impugned award i.e. Rs.1,87,182/—, from the date of presentation of the claim petition i.e. 22‘1 .1998 till its payment i.e. 16.1 .2007. 12. However, so far as imposition of penalty is concerned, the matter is remitted back to the Commissioner with a direction that in case the circumstances warrant imposition of penalty, then the Commissioner shall, after affording opportunity of showing cause to the employer, pass an order regarding imposition of penalty in accordance with law, as early as possible, preferably within a period of two months from the date of appearance of the parties. 13. lt is made clear that the liability for payment of penalty, if any, shall be on respondent Not/employer and respondent No.2/insurer shall not be liable for payment of penalty. 14. LCR be send back to the Commissioner forthwith. 15. Parties shall appear before the Commissioner on 16. No order as to costs. Sd/— G-. Minhajuddin Judge