^^^te^fe^ BEFOREHON'BLE HIGH COURT BILASPUR (C.G.) •/y] /^(C) No ;3^/ /^03 ,.^^- SlnrrtR aW:V &&S3K@:'"' "" Durg Bus Service Through - Managing Director New Bus Stand, Near Hanuman Mandir, Durg. Appellant. FTt -s^' ,J^ ^(<? : 1 Y^Ii '^?^N ^v s\? • ?, _"; ^S^ 3. ^ s ??' 'i S n^ '_S *- ca (^6. Versus Smt. Lalita Bai Rajputw/o late Bhupendra Singh Rajput Age - about 35 years, Rati KumarRajput S/o late Bhupendra Singh Rajput Age - abqut11 years, 'ye^^Tff)!' Ku.tyamjnuRajput, age about4years, ••7-5fitfe" D/o late Bhupendra Singh Rajput Rupendra alias Sunny Rajput age about 2 years, S/o late Bhupendra Singh Rajput Kesar Bai, aged about 67 years, W/o late Mukund Singh Rajput N.A. No. 2 to 4 minor hence through mother Smt. Lalita Bai. All the resident of Naya Para Durg (C.G.) The new India Insurance Co. Ltd. Through - Regional Manager, Regional Office - Thakkar Chamber G.E. Road, Power House, Bhilai, Distt. Durg (C.G.) ~ Respondents. ^eal l/al^e - l,l^,?0^(o^elj3j:'i^eve-njl-ee^ws&-^^ ^t^ldl^ed pOtrf cr^ti) Appeal U/s 30 ofWorkmen Compensation Act 1923. K^$%^ '"^Si^E^--"JJ ^ ^ KIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Miscellaneous Appeal (C.) No.13^61 of 2009 Appellant Respondents versus Durg Bus Service Smt. Lalita Bai Rajput and others Present: Shri Sameer Kumar Tripathi, counsel for the appellant. Shri Deepak Gupta and Shri Wasim Miyan, counsel for respondent No.6. None for respondents No.1 to 5. Miscellaneous Appeal under Section 30 of the Workmen's ComDensation Act. 1923 ORAL ORDER (Passed on 4th August, 2011) Appellant Durg Bus Service has preferred the instant appeal under Section 30 of the Workmen's Compensation Act, 1923 (hencefori:h 'the Act, 1923') for setting aside the order/award dated 11-8-2009 passed by the Commissioner for Workmen's Compensation, Labour Court, Durg (henceforth 'the Commissioner') in Case No.81/W.C.Act Fatal/2006, whereby the Commissioner has awarded Rs.1,17.804/- by way of penalty against the appellanVemployer/owner. r't 2. Brief facts of the case are that respondent No.1 is widow, respondents No.2 and 4 are sons, respondent No.3 is daughter and respondent No.5 is mother of deceased Bhupendra Singh. The deceased was employed as a driver in a Bus bearing registration °&, No.CG 07 E 0156 owned by the appellant. On 27-5-2006, the deceased took passengers in the bus from Durg to Bemetara. In Bemetara Bus Stand, he went up on the cabin of the bus to unload some goods belonging to the passengers, whereon he accidentally came in contact of an electric wire and died of electrocution. At the time of incident, age of the deceased was 40 years and he was drawing salary of Rs.4,200/- per month. Respondents No.1 to 5/the claimants filed an application under Section 10 of the Act, 1923 for compensation to the tune of Rs.3,74,829/-. 3 . The Commissioner, on the basis of the pleadings of the parties, the evidence adduced by them and the material available on record, awarded compensation of Rs.2,35,607/- against respondent No.6/insurance company and a furi:her sum of Rs.1,17,804/- by way of penalty under clause (b) of sub-section (3) of Section 4A of the Act, 1923 against the appellant/employer/owner. The appellant/employer/owner has filed the instant appeal against the order of the Commissioner imposing the penalty. 4. Shri Sameer Kumar Tripathi, learned counsel for the appellant/employer/owner has submitted that delay in payment of compensation was not caused by the appellant. The appellant had taken workman policy of insurance to meet out sudden liabilityand immediately after two days from cleath of the deceased, which took place on 27-5-2006, the appellant intimated the incident to the insurance company on 29-5-2006, but the insurance company cgused delay in taking appropriate action. The delay in payment of ! compensation was not caused by the appellant. Hence, the penalty could not be imposed upon the appellant. 5. Shri Deepak Gupta and Shri Wasim Miyan, learned counsel for respondent No.G/insurance company has supported the impugned award and submitted that the award does not call for any interference by thisCourt. 6. I have heard learned counsel appearing for the parties and perused the record. From perusal of the record, it is clear that deceased Bhupendra Singh was an employee of the appellant and his death had occurred due to electrocution taken place during the course of and out of the employment under the appellant. 7. Asharam Nirmalkar, NAW-1 (witness of the insurance company) has admitted in his deposition that itis true that at the time of incident deceased Bhupendra Singh was working as a driver in Durg Bus Service (whose proprietor was the appellant). It is also true that at the time of incident, the policy of insurance was valid. 8. Ramkumar Sahu, NAW-1 (witness of the appellant) has deposed that they had intimated about the death of the deceased to the insurance company under Ex. D-3 on 29-5-2006. After intimation, the insurance company had asked to submit filled-up claim form, which they had submitted on 26-10-2006. Ex.D-4 is a carbon copy of the claim form and Ex.D-4C is a photo copy of the said form. A to A portion of thedocument Ex.D-4 bears signature of the Director of Durg Bus Service. 9. From the evidence of Ramkumar Sahu, NAW-1 it is evident that the filled up claim form was submitted to the insurance company on 26-10-2006, i.e., five months after the incident. 10. Clause (b) of sub-section (3) of Section 4A of the Act, 1923 runs as under: "4A. Compensation to be paid when due and penalty for default.— xxxxx xxxxx xxxxx (3) Where any employer is in default in paying the compensation due under this Actwithin one month from the date it fell due, the Commissioner shall- (a) xxxxx xxxxx xxxxx (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of sych amount by way of penalty: Provided 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. Explanation.— For the purposes of this sub- section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934)." 11. The provision contained in clause (b) of sub-section (3) of Section 4A of the Act, 1923 leaves no room for any doubt that an order for payment of penalty shall be passed under sub-section (3) 6f Section 4A of the Act, 1923 giving a reasonable opportunity to the ,f employer to show cause why it should not be passed. This provision is mandatory in nature. 12. From perusal of the record, it is clear that after giving the abovementioned opportunity to the appellant, the Commissioner has imposed the penalty upon the appellant. 13. Considering all the facts and circumstances of the case, the material available on record and on a closed scrutiny of the evidence on record, this Court is of the view that the Commissioner has not committed any illegality or perversity in passing the impugned award, which is within his jurisdiction and the same does not call for any interference by this Court. 14. Accordingly, the instant appeal, being devoid of merit, is liable to be and is hereby dismissed. No order as to costs. Sd/- I R.S.Sharma Judge ^ Gopal (