1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2364 OF 2008 WITH CIVIL APPLICATION NO. 6148 OF 2008 M/s. Safechem ........Appellants versus Smt. Shubhangi Dattatray Khengre & anr........ Respondents. Mr. Rajesh Gehani adv. for the Appellants Mr. V.S.Talkute adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 31st MARCH, 2009. P.C.: 1. One Dattatray was working as a chemist in the employment of the appellant. The appellant company is engaged in maufacture of 1.4 dioxane by using a reactor. It has come in the evidence on record from a co-worker of the deceased that the reactor was not cleaned for 5 to 7 batches and therefore at the bottom of the reactor there was a deposit of sludge. Three workers including the deceased had to enter the reactor on 1st January 2005. They worked in the reactor for about 5 to 6 hours on 1st and 2nd January 2005. This is an admitted fact and not disputed by the appellant. The deceased Dattatray was hospitalised on 5th January 2005 and as his condition deteriorated he was shifted to KEM hospital on 8th January 2005. 2 His condition further deteriorated and he expired on 12th January 2005. An autopsy was performed and the doctor opined the cause of death to be “acute renal failure and renal infraction”. The heirs of the deceased initiated proceedings under section 4 of the Workmen's Compensation Act claiming compensation in the sum of Rs. 4,15,960/-. The Commissioner of Workmen's Compensation/Labour Court decreed the claim and also imposed maximum penalty i.e. 50% of the amount of compensation. Aggreived therey an appeal came to be filed by the compay bearing Appeal No. 1050/08. The appeal was partly allowed. Before this court, it was an admitted position that no opportunity was made available to the appellant before imposing the penalty. This court being of the view that an opportunity of hearing is a sine qua non for passing of an order of penalty on concession made available by the learned counsel appearing for the respective parties, the order in regard to penalty was set aside and the matter was remanded back to the trial court. While remanding the case to the trial court, all questions raised in the appeal were kept open to be agitated in the second round of litigation including the award of compensation. After the remand, the trial court heard the appellant and by an order dated 23rd October 2008 imposed penalty to the extent of 50%. Both the orders, viz. order awarding compensation and the order passed after remand imposing penalty are challeged by filing the present appeal. 3 2. Before I proceed to deal with the submission, it would not be out of place to mention that an appeal against the order passed under the Workmen's Compensation Act would be maintainable provided a substantial question of law emerges for consideration, It is so provided in the first proviso to section 30 of the Act. 3. The learned counsel for the appellant in the first place contended that the trial court has not conclusively found in favour of the claimants that the cause of death of the deceased was that the deceased inhaled 1.4 dioxane which affected his kidney, (2) It is next contended that the trial court could not have awarded compensation by answering the questions on the basis of preponderance of probabilities and the trial court could only pass an order awarding compensation provided the claimants succeeds in establishing the cause of death beyond reasonable doubt, (3) the evidence of doctor, examined by the company by name Dr. Dilip has not been considered in its proper perspective and (4) that other two workers who had entered the reactor for cleaning the sludge did not suffer on account of 1.4 dioxane ( a chemical which, if inhaled can affect the kidney and liver). 4. The doctor who performed the autopsy has opined the cause of death to be renal failure. The Deputy Director of industrial Health and Safety who was examined as witness no.3 has also opined that if 1.4 dioxane is inhaled while breathing, or ingested by absorption through skin contact, then the affected 4 person can possibly die due to renal failure or liver failure. One Dr. Dilip who was examined as witness by the appellant compay has also in no uncertain words opined and admitted that 1.4 dioxane if inhaled affect the kidney and liver. Considering the opinion of the doctors and the expert the trial court has found that the deceased succumed to death on account of renal failure resulting from inhaletion of 1.4 dioxane. 5. Perused the impugned award. The same takes a correct view of the matter which does not call for any interference. The submission made by the learned counsel for the appellant that issues cannot be decided on preponderance of probabilities in the proceedings under Workmen's Compensation Act, is recorded for being rejected. There is no burden on the claimants to establish the fact beyond reasonable doubt. The cotention is wholly misconceived and hence rejected. No substantial question of law emerges for consideration in this appeal. 6. The learned counsel for the appellant has also contended that imposition of penalty was wholly uncalled for. Admittedly the appellant did not deposit the amount till the time, it decided to challenge the impugned order. Even the conduct of the appellant which is rightly taken into accout by the trial court dis-entitle the appellant from making a claim to dispense with the imposition of penalty. In the result there being no merit in the appeal the same is summarily dismissed. 5 7. At this stage the leared counsel for the appellant seeks stay of this order. In the facts of the present case, I am not inclined to stay this order, as prayed for. Prayer is rjected. 7. In view of the dismissal of the appeal, the civil application does not survive and the same is also dismissed. (A. P. DESHPANDE, J.)