IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SEVENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.1031 of 2005 Between: Sri Padala Atchaiah and another .. Appellants AND Sri Harsha Flyash Bricks Industry rep. by its Managing Director, Nalluri Sudhir, G.N.T. Road, Valtur and others .. Respondents JUDGMENT: This appeal is directed against the order of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Eluru in W.C. Case No.18 of 2003, dated 05-11-2003. The claimants are the husband and son of Ramulamma who was working as a daily wage worker at Rs.55/- per day in the 1st respondent-industry, for which the 2nd respondent was the Plant Manager and the 3rd respondent was the labour contractor. The deceased Ramulamma went to attend calls of nature to the railway track adjacent to the factory at about 6 P.M. on 11-03-2002 and being hit by the train coming from Nizvid, she died on the spot during the course of her employment. Hence, the husband and son claimed a compensation of Rs.4,00,000/- from the three respondents who denied the employment of Ramulamma or her wages and claimed that they engaged labour on piece rate basis at Rs.0.40 ps. per brick. The 3rd respondent was claimed to be not a labour contractor and the police, Eluru were stated to have registered crime No.31 of 2000 regarding the death of Ramulamma and during inquest, it was noted that after completing the work, Ramulamma went to the Western side of the railway line for attending calls of nature and due to her own negligence, she fell underneath the train. The respondents, therefore, desired the claim to be negatived. During the enquiry before the Commissioner, A.W.1 and R.Ws.1 to 3 were examined and Exs.A.1 to A.9, B.1 and B.2 were marked. The Commissioner in the impugned order referred to the rival contentions and evidence and observed that the issues relating to the occurrence of the accident during the course of employment and the liability of the opposite parties to pay compensation, have to be determined and in deciding the quantum, the wage and age particulars form the basis. The Commissioner noted that from the first information report, inquest and post- mortem reports, Ramulamma was last seen by her husband at 6 P.M. and then she went to attend calls of nature after attending the work in the 1st respondent industry. The cause of death was opined by the inquest mediators to be accidental while crossing the railway track and the non-availability of a latrine in the premises of the factory, where Ramulamma was an employee, led to the incident. The Commissioner referred to the provisions of the Workmen’s Compensation Act and the relevant precedents on the aspect and concluded that the Andhra Pradesh Shops and Establishments Act in Section 74 made the provisions of the Workmen’s Compensation Act applicable to every establishment registered under that Act. The Commissioner also observed the accident to be an untoward event, which has to be viewed from the point of view of workman and he took the age of Ramulamma as 40 years as stated in the post-mortem report. The Commissioner took the minimum wages as per the relevant Government Orders into account at Rs.2,062/- as total wages and applying the relevant age factor 184.17 to such wages and multiplying the same by 50/100, the Commissioner arrived at a compensation of Rs.1,89,879/- payable by all the three respondents within 30 days from the date of receipt of the order. The claimants preferred the present appeal contending that very meagre compensation was awarded though the untimely death of Ramulamma was caused during the course of her employment and the amount of compensation should have been granted with interest from the date of the petition till the date of realization. Heard Sri P. Lingeswara Rao, learned counsel for the appellants and Sri K. Chaitanya, learned counsel for the 1st respondent. The point for consideration is whether the compensation awarded needs an upward revision ? Point: The conclusion of the Commissioner for Workmen’s Compensation about the deceased Ramulamma being a workman governed by the provisions of the Workmen’s Compensation Act, 1923 in respect of the 1st respondent industry, was not challenged by any of the opposite parties and the cause of her death assumed to be during the course of her employment, was also not challenged in any manner. The liability of the respondents as upheld by the order to jointly and severally compensate the husband and son in terms of the Statute is not under challenge and it is only the claimants that are questioning the quantum of compensation. In so far as the age of the deceased is concerned, except Ex.A.3 post-mortem report, there is no other oral or documentary evidence to arrive at her age by the time of her death and the Commissioner had to necessarily depend upon the age mentioned in the post-mortem certificate. So far as her wages are concerned, the claim of the claimants that she was earning Rs.55/- per day as daily wage, was not corroborated by any other evidence than the self-serving and interested claims of A.W.1 and the Commissioner in the absence of any dependability of the quantum of wages as claimed by either side, had necessarily depended upon the statutory minimum wages in force at the relevant time, which cannot be considered unreasonable. The consequent calculation of the quantum of compensation was mathematical being the result of multiplication of the age factor x 50% of the wages and the said calculation is not shown to be, in any way, infraction of the statutory provisions. As to how the claimants are entitled to further compensation, is not made clear. Sri P. Lingeswara Rao, learned counsel for the appellants referred to the notice issued by the Commissioner subsequently on 16-11-2006 to the opposite parties informing them of their liability for payment of penalty at 50% and interest at 12% under Section 4A of the Workmen’s Compensation Act, 1923 in case of default of deposit, and submitted that the compensation was actually deposited only in 2007 making them liable for imposition of the penalties under sub-section (3) of Section 4A. The learned counsel for the 1st respondent, Sri Chaitanya, claims that the amount was deposited by 27-12-2006. Irrespective of the truth or otherwise of the conflicting claims, in so far as the liability to pay interest or penalty under sub-section (3) of Section 4A is concerned, it is settled by precedents that proper notice should be given to the party attempted to be made liable for such penalty or interest and an opportunity to the employer should be invariably given to show cause why it should not be imposed. It is for the Commissioner for Workmen’s Compensation concerned to take necessary action in that regard, if moved by the claimants in accordance with law and this Court cannot express any opinion on the liability of any of the opposite parties for either the penalty or the interest. While leaving open the said question, as no substantial question of law is involved in the appeal, the same is unsustainable. The appeal is dismissed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 27-09-2011 Svv