FA/1523/2005 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1523 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= = 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 ? ========================================================= = PANIBEN BHARSINH SODHA Versus GIRDHARIDAN VAKTAVARDAN GADHVI & OTHERS ========================================================= Appearance : MR MOHANBHAI DESAI for Appellant. Respondents No. 1 & 2 unserved as refused. MR VC THOMAS for MR. VIBHUTI NANAVATI for Respondent No.3. ========================================================= = CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 08/02/2008 FA/1523/2005 2/4 JUDGMENT ORAL JUDGMENT The original claimant has preferred the present First Appeal being aggrieved by the judgment and award dated 30.01.2004 passed by Workmen Compensation Commission, Palanpur in W.C. Application No. 20 of 1999. Mr. Desai, learned advocate for the appellant submitted that the short question involved in the present appeal is, whether the learned Commissioner, after arriving at a conclusion that the total compensation payable is Rs.2,11,000/- [and awarded Rs.2,00,000/- as the claim petition is restricted to Rs.2,00,000/-], is justified in deducting Rs.1,00,000/- on the ground that there is some doubt about the documents pertaining to original claimant No.1, wife of the deceased workman. Mr. Desai further submitted that the learned Commissioner has also not awarded penalty, interest and sufficient costs and, therefore, the same may also be awarded. On the other hand, Mr. Thomas appearing for Mr. Nanavati for the respondent No.3 Insurance Company submitted that the workman died on 08.02.99; the wife of the deceased died on 15.08.99; the claim petition is filed on 29.12.1999 showing the deceased wife also as one of the claimants. Therefore, the learned Commissioner is right in apportioning the amount by deducting Rs.1,00,000/- towards the share of the deceased mother after coming to a conclusion that the total amount awardable is Rs.2,00,000/-. Learned advocate further submitted that the the learned Commissioner had apportioned the compensation as provided under section 8 of the Act, and, therefore, it does not call for any FA/1523/2005 3/4 JUDGMENT interference at this stage. Respondents No. 1 and 2 have refused to accept the process. However, apart from the settled position that refusal amounts to sufficient service, since their insurer is respondent No.3 and since respondent No.3 does not dispute its liability to indemnify the unserved respondents, this matter is being finally decided though respondents No. 1 and 2 have refused to accept service. This Court has heard Mr. Mohanbhai Desai, learned Counsel of the appellant and Mr. V.C. Thomas, learned advocate for respondent No.3, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case as well as the entire evidence on record. It is true that the claim petition was filed on 29.12.1999. It may be also true that wife of the deceased, Kamlaben Chandansinh Sodha died on 15.08.1999. However, there is nothing on the record to show that the claim petition was not drafted when wife of the deceased, Kamlaben Chandansinh Sodha was alive and she put her thumb impression at the time when it was drafted. It could happen that the claim petition was drafted when wife of the deceased, Kamlaben Chandansinh Sodha was alive but the same was filed on 29.12.1999 only. However, the name of Kamlaben Chandansinh Sodha was deleted by order dated 10.12.2001 passed below Exh.16 and the memo of petition has accordingly been amended. Thus on the date of deciding the claim petition, i.e. on 30.01.04. only one claimant was on record. The learned Commissioner was, therefore, not right in deducting FA/1523/2005 4/4 JUDGMENT Rs.1,00,000/- after coming to the conclusion that the amount awardable is Rs.2,00,000/-. As regards the prayer for penalty, in the facts and circumstances of the case, this Court is not inclined to interfere at this stage. However, this Court is of the view that the claimant is entitled to interest at 9% from the date of the claim and costs of Rs.2000/-. In the result, the appeal is allowed. The impugned order passed by the learned Commissioner is modified. Since the claim petition is restricted to Rs.2,00,000/-, it is held that the respondents are jointly and severally liable to pay Rs.2,00,000/- to the surviving claimant, mother of the deceased Paniben Bhersinh Sodha, with interest at 9% p.a. from the date of filing of the claim petition till payment and costs of Rs.2000/- all throughout. The amount shall be paid within a period of six months from today. The appeal stands allowed accordingly. mathew [H.B.ANTANI, J.]