FA/474/1997 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 474 OF 1997 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge ? ====================================== UNITED INDIA INSURANCE CO. LTD. - Appellant(s) Versus RAMILABEN, WIDOW OF RASIKKUMAR JAGANNATH JOSHI & ORS. - Respondent(s) ====================================== Appearance : Mr. Vibhuti Nanavati for Appellant(s). Mr. A. V. Prajapati for Respondent(s) : 1 - 3. None for Respondent(s) : 4. ====================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/01/2008 ORAL JUDGMENT The present appeal is filed by the appellant herein, original FA/474/1997 2/7 JUDGMENT opponent No.2, United India Insurance Company Limited, under Section 30 of the Workmen Compensation Act, 1923 (hereinafter referred to as “the Act” for short), challenging the judgement and order passed by the learned Ex-Officio Commissioner for Workmen Compensation, Labour Court, Bharuch dated 7th December, 1996 passed in Workmen Compensation (Fatal) Application No.31 of 1993, directing the appellant-Insurance Company to pay an amount of Rs.80,400/- to respondent Nos.1, 2 and 3 herein, original claimants, along with interest at the rate of 12% per annum from the date of the application, being the amount of compensation on the death of the deceased workman Rasikkumar Jagannath Joshi. 2. The brief facts of the case are that the deceased Rasikkumar Jagannath died while on duty and therefore, respondent Nos.1, 2 and 3 herein, original claimants, submitted an application for compensation under the Act, being Workmen Compensation (Fatal) Application No.31 of 1993, claiming compensation of Rs.1,20,600/- with 50% penalty and interest at the rate of 18% per annum from the date of the accident. The application was opposed by the appellant and opponent No.1-respondent No.4 herein. It was the contention on behalf of the appellant-Insurance Company that the deceased has not died due to the injuries caused while he was on duty and there was no nexus of death with the injury caused. FA/474/1997 3/7 JUDGMENT The respondent No.1 – Ramilaben Rasikkumar Joshi, widow of the deceased, came to be examined at Exh.20; one Dr. Jayesh Manilal Suthar also came to be examined on behalf of the original applicant at Exh.30; the original owner came to be examined at Exh.38; and, one Mahendra Nagindas Shah, Divisional Manager (In-charge) came to be examined on behalf of the appellant at Exh.44. Considering the evidence on record, the learned Commissioner partly allowed the application by directing the original opponent No.1 - owner to pay an amount of Rs.40,200/- towards penalty and further directed the appellant-Insurance Company to pay an amount of Rs.80,400/- by way of compensation along with interest at the rate of 12% per annum from the date of the application. Being aggrieved and dissatisfied with the judgement and order passed by the learned Commissioner for Workmen Compensation, Bharuch dated 7th December, 1996 in Workmen Compensation (Fatal) Application No.31 of 1986, the appellant-Insurance Company has preferred the present appeal under Section 30 of the Act. 3. Shri Vibhuti Nanavati, learned Advocate appearing on behalf of the appellant, has vehemently submitted that the deceased Rasikkumar Joshi was the nephew of the owner of the tractor in question and was not employed by the owner- insured of the tractor. He submitted that the deceased was having the field adjacent to the fields of FA/474/1997 4/7 JUDGMENT the owner – insured of the tractor and it is alleged that the accident took place while the deceased was driving the tractor. It is submitted by him that the claimants have not produced any medical papers to support the theory of accident and injury sustained by the deceased, the hospital has not registered the case as medico-legal case and there was no FIR, panchnama and post mortem report to support the theory of the accident and injuries sustained therein. It is submitted that the piece of medical paper, which was sought to be produced, did not whisper about the injuries sustained by the deceased on account of the alleged accident as pleaded. It is submitted that the claimants have not adduced any evidence on record. Under the circumstances, the case of death and nexus with employment is not proved by the claimants and therefore, the claim petition is required to be dismissed. It is also further submitted by Shri Nanavati that even otherwise, appropriate rate of interest would be 6% as the accident took place in the year 1990 i.e. prior to the date of the amendment of Section 4A of the Act and under the old Act, and therefore, in view of the decision of the Supreme Court in the case of Kerala State Electricity Board & Anr. vs. Valsala K. & Anr., reported in (1999) 8 SCC 254, the judgement and order passed by the learned Commissioner for Workmen Compensation is required to be modified to that extent as the learned Commissioner has awarded the interest at the rate of 12% per annum. FA/474/1997 5/7 JUDGMENT 4. Shir A. V. Prajapati, learned Advocate appearing on behalf of the respondents-original claimants, while supporting the judgement and order passed by the learned Commissioner for Workmen Compensation, has submitted that it is a finding of fact recorded by the learned Commissioner on appreciation of the evidence with regard to the injuries caused by the deceased and death due to such injuries, which is not required to be interfered with by this Court in an appeal under Section 30 of the Act. It is a question of fact and not a question of law. It is also submitted that in the facts and circumstances of the case, the learned Commissioner has also rightly awarded the interest at the rate of 12% per annum. Under the circumstances, it is requested to dismiss the present appeal. 5. Heard the learned Advocates appearing on behalf of the respective parties. This Court has considered and gone through the judgement and order passed by the learned Commissioner for Workmen Compensation as well as the evidence on record, more particularly, evidence of the widow of the deceased as well as Dr. Jayesh Suthar. On appreciation of the deposition of the doctor, the learned Commissioner for Workmen Compensation has held that the deceased died due to injuries sustained. The said finding is based on appreciation of the FA/474/1997 6/7 JUDGMENT evidence and it is a question of fact, which is not required to be interfered with by this Court in exercise of powers under Section 30 of the Act. Whether the deceased has died due to the injuries or not, is a question of fact and not a question of law. Under the circumstances, the submission on behalf of the appellant with respect to the death of the deceased due to injuries, cannot be accepted and to that extent, the judgement and order passed by the learned Commissioner requires to be confirmed. 6. However, Shri Vibhuti Nanavati, learned Advocate appearing on behalf of the appellant-Insurance Company, is justified in making a grievance with respect to awarding of compensation along with interest at the rate of 12% per annum from the date of the application. Admittedly, the accident took place on 3rd February, 1990, i.e. much prior to the date of the amendment of Section 4A of the Act of 1995 and under the old Act, at the relevant time, when the accident took place, as per Section 4A of the Act, the rate of interest was 6% per annum. The said controversy is also not res integra in view of the decision of the Supreme Court in the case of Kerala State Electricity Board & Anr. vs. & Valsala K. & Anr., reported in (1999) 8 SCC 254. As held by the Supreme Court, enhanced rates of compensation and interest under Sections 4 and 4-A(3) of the Act (as amended by Act 30 of 1995) will be FA/474/1997 7/7 JUDGMENT applicable with effect from 15/09/1995 and the cases where accidents took place prior to, although decided subsequent to 15/09/1985, did not attract the enhanced rates introduced by the amendment. Under the circumstances, the judgement and order passed by the learned Commissioner for Workmen Compensation awarding interest at the rate of 12% per annum requires to be modified to that extent. 7. For the reasons stated above, the appeal succeeds in part. The impugned judgement and order passed by the learned Commissioner for Workmen Compensation, Bharuch dated 7th December, 1996 in Workmen Compensation (Fatal) Application No.31 of 1993, directing the appellant to pay compensation of Rs.80,400/- along with interest at the rate of 12% per annum from the date of the application, is modified to the extent that the original claimants shall be entitled to the compensation of Rs.80,400/- along with interest at the rate of 6% per annum only from the date of the application. This appeal is, accordingly, partly allowed to the aforesaid extent. Rest of the judgement and order passed by the learned Commissioner is hereby confirmed. However, there shall be no order as to costs. [M. R. Shah, J.] kamlesh*