1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.555 OF 2004 Smt.Sharifabai Usman Mukadam ) Room No.8, Mukadumia Nagar, Behind Mahim Bus Depot ) Mahim, Mumbai-400 016 )..Appellant V/s. Office of the Admiral Superintendent ) Naval Dockyard, Mumbai-400 023 )..Respondents ---- Mr. P. M. Patel for the appellant. Mr.G.Hariharan along with Kiran Kandpile for respondents. ---- Coram : R.S.MOHITE,J Date : 7th January, 2010 ORAL JUDGMENT :- 1 This is an appeal filed by one Sharifabi Usman Mukadam impugning a judgment and order dated 21.4.2003 passed by the learned Commissioner for Workmen’s Compensation, by which he has dismissed the claim made by the appellant. 2 The facts of the case in brief are as follows :- (a) The appellant is a widow of late Usman Husain Mukadam (hereinafter referred to as the “deceased”). The deceased was employed with the respondents and was working at the Naval Dockyard. The case of the appellant in the claim was that the deceased was on duty on 20th February, 1995. He fell down from stair-case and suffered 2 personal injuries. He was taken to the hospital and ultimately succumbed to his injuries on 30th March 1995. At the time of incident deceased was aged about 59 years and he was drawing a salary of Rs.4000/- per month. (b) On receipt of the claim, a Written Statement came to be filed on behalf of the respondent/employer. Though the respondent did not deny that the deceased was working as a Winchman, respondent denied that the deceased had met with an accident while on duty. Respondent denied that deceased had suffered personal injuries during the course of his employment within the premises at his work place. The employer contended that there was no entry made as regards the alleged accident in the register of accidents and dangerous occurrances maintained by the respondent. They contended that the deceased had died on 30th March, 1995 due to Cardiac arrest and the medical certificate of the cause of death indicated that the deceased had not met with any accident on 20th February, 1995. (c) Based upon the averments and the material produced before him, the learned Commissioner held that the appellant has failed to establish that the deceased was on duty when he fell down and suffered injuries. Learned Commissioner observed that the fact of the alleged accident was not recorded in the register maintained by the respondent and observed that the fact that the deceased was not taken to the hospital of the respondent was very significant. He also held that cause of death was a heart-attack and that no evidence was adduced to show the relationship between the duty performed by the deceased and the cause of death. He also observed that the daughter-in-law of the deceased had filed a proceeding in the High Court in which a direction has been given to the office of the respondent to pay some amount to her. He held that the appellant was 3 not a dependent. 3 This appeal was heard sometime in February-2008 and this Court passed an interim order dated 21.2.2008. On the basis of the evidence as adduced, this Court, in the aforesaid order, held that the Commissioner had committed an error in holding that the appellant had not established that the deceased suffered injuries in the course of his employment with the respondent. Two other issues i.e whether the death of the deceased was as a result of injuries sustained on 20.2.1995 at the place of work and secondly, whether the appellant was the only dependent, were framed and then two issues were sentt to the learned Commissioner for giving his findings thereon after giving opportunity to the parties to lead further evidence. 4 Accordingly, the Commissioner allowed the parties to lead further evidence and ultimately passed an order on 12.11.2008 deciding the aforesaid issues. The issues as framed and the findings thereon as given by the Commissioner are as under :- ISSUES FINDINGS 1 Regarding the connection between the Death of the deceased Usman Mukadam employment injury and cause of death ? Was caused by injury during and in the course of employment. 2 Regarding entitlement of the applicant Applicant Smt.Sharifabi is not the only to file the claim as only dependent ? Dependent who is entitled to claim the compensation. 5 On the first issue, the Commissioner relied upon the evidence of the Resident 4 Medical Officer Dr.Ashok Gangaram Shinde of St.George Hospital, Mumbai, who opined on the basis of the hospital record that the deceased had been brought to the hospital in an unconscious condition and as per the hospital record the cause of death was cardio respiratory arrest. He opined that cause of death was due to haemorrhage in the brain. 6 On the 2nd issue, the Commissioner held that the appellant had a minor daughter by name Ms.Nazma Mukadam and a son by name Master Anees Mukadam. The date of birth of the son was 1.12.1981 and the date of birth of his daughter was 1.5.1980. Both these children were thus dependent minors on the date of death of the appellant’s husband. 7 In respect of the two issues as decided by the Commissioner, no objections have been filed in this Court. In the circumstances, in view of the issue no.1 as decided by this Court on 21.2.2008 and the two issues as decided by the Commissioner, the three questions that remains to be decided are as to what is the quantum of compensation to be given, whether any interest, penalty and cost is payable and how is the amount awarded to be apportioned between the defendants. On the first question, appellant has filed note giving the calculation of the compensation to be awarded. It is an admitted position that on the date of his death, deceased was drawing a salary of Rs.4000/- per month. Though the appellant vaguely stated that at the time of the death her husband was 50 years of age, in the written statement based upon the service record, it was specifically stated that the deceased was born on 23.12.1935. At the time of accident, the deceased was therefore, 59 years of age. As per the calculation, 50% of the salary would come to Rs.2000/-. As per the schedule of the Workmens Compensation Act, considering the age of the workman being 59 years, the multiplying factors would be 121.05 and the compensation amount awardable would be 5 Rs.2,42,100/-. 8 Since no compensation was paid within one month, simple interest will have to be awarded @ 6% from one month after the date of accident. Accident took place on 20.2.1995. Therefore, interest will have to run from 20.3.1995. It is made clear that interest will be @ 6% because accident took place prior to the amendment of Section 4-A of the Workmens Compensation Act which increased the rate of interest to minimum of 12%. Since there is no justification as to why compensation is not paid within the grace period of one month, in my view, penalty of Rs.1,21,050/- is also payable to the workman. In the net result, the entitlement of the dependents is declared as follows :- (a) Rs.2,42,100/- by way of compensation (b) Rs.1,21,050/- by way of penalty (c) 6% simple interest on the amount of Rs.2,42,100/- from 20.3.1995 till the date of payment. 9 The respondents are directed to calculate and deposit the full amount payable in the Court of the Commissioner for Workmens Compensation within 3 months from today. As regards the disbursement and the manner of disbursement, that issue has not been properly decided. The Court Commissioner’s report indicates that the dependents are the appellant and her two minor children. Record & proceedings however, indicate that there is also a daughter-in-law of a predeceased son by name Salma and she also had a minor daughter by name Nilophar at the time of incident. This fact can be gathered from the Advocate’s letter dated 19.4.1995 which is annexed at Exhibit-5 to the Written statement. The address of Salma is contained in the said letter itself. The shares which will be payable to the various 6 dependents is also required to be decided in accordance with entitlement under Muslim Law. In the circumstances, the issue regarding re-determining as to who are the dependents is remanded back to the Commissioner under the Workmens Compensation Act for determination in accordance with law. Appeal is made partly absolute accordingly. In the circumstances of the case, there will be no orders as to costs. (R.S.MOHITE,J) 7