égm LE ££$§$%§ ——-—————~———— IN THE HON’BLE HIGH COURT OF CHHATTISGARH L7 AT BILASPUR i ,W.1>.(U/A.227)N0. EEK) /2009 PETITIONER CLAIMANT (artik Sarkar, S/o. Priylal Sarkar, aged about 31 years, R/o. Bengali Camp, Police Station Kirandul, Tahsil Dantewada, District Dantewada (CG) i 1 VESUS a R T 1] Uttam Karmkar, on-applicns S/o. Narayan Karmkaf, aged about 40 years, R/o. Bengali Camp, Police Station Kirandul, Tahsil Dantewada, District Dantewada (CG) The New India Insurance Company Limited, through: Branch Manager, Branch Office, Near Jhankar Talkies, Jagdalpur, District Bastar (CG) ' WRIT PETITION UNDER ARTICLE 227 OF THE ‘ CONSTITUTION OF INDIA RESPONDENS Nat ORDER Post for W- 03 -2011 I //\ Sd/‘m . Prashant Kumai4 Mishra Judge ’ W\ (2) Undisputed facts of theease. in short. are that on account of injuries sustained by the petitioner/claimantrwhilehe wasrwortdng as Driver in the vehicle belonging to respondent,No.1/employer, he presented a claim under the Act which was allowed by the Commissioner on 2W vlde Annexure PI2, inter-elk directing that he non-eleimanls/mpoMenE shall pay a sum of Rs.2.03.920/- to the claimant and the amount shalihe‘treated as fallen due on the date of passing of the award. lt is also held therein that the liability to make payment of interest would arhe in case the employer fails to make payment of the amount of the oompemation within ‘x one month from me date of ward and thus it was directed that me amount ' ‘ ’ V \ \ ‘ ‘ SINGL$ gENCH : HON’BLE $HRIPRASHANT KUMAR MI§HRA, J. WgP. i227} N9. §7¥9 of 2009 PETITIONER Kattik Sarkaf. , Versus RE$PONDENT§ umm Karmkar and anoher. J, Shri Manoj Paranjpe. counsel for the monar shri Deepak Gnpaa, comam me respondonm'‘oz. ‘ : ' "O‘RDE R (‘2’ I03l2011) This Won under Article 227 of thegonstitution‘of India has been preferred by the claimant uchallenging the ordeL ;pasaad_,,__h1 the Commissioner, Workmen's Commnsation-cumeLahourggwrt. .Aamuf, 7 (hereinafter referred to 'me Commissioner) onzelmlzma (AnmxurePh). denying award of interest to me claimant under Section 4M3) of me Workmen's Compensau'on ML] 923mereinafterreferred to ‘the Act‘). under the award shall be paid within one month. ‘ 6$3 “2, (3) Admittedly. as held bytha Commksioneunho Imnugned order. me ~ respondont No; 2Ilnsuranoe Company failed .to make payment oHhe amount within a month and instead deposited the amount on 17lo6/2009 i.e. with a delay of 20 days. of the Act claimino slaluhm interestmgpemllyestmyldodunderme Ant; ‘ e ‘ The said pram hasbeen“modedgny‘mewlmmm,mtmmndonim‘v"I the delay of 20 days. (5) Short question warising Vfor detemilnation is whether the ' Commissioner's order reiecting melclaim‘mwardsJMerestemppenalty i8 i" accordance with law. (6 Shri Manoj Paranlpeleamed eounsel for the chimant would submit that when admittedly metamoumunder. the! awardhasnotbeenmid within a month from the date when it had fallen due, the claimant becomes entitled to interest under Section 4amyotthe Actend me. Commissioner committed serious error by rejectingjherptayermtowatds theimerystmd penalty. (7) Per contra. Shri ,Deenakiguntat learned oounselaweamofor respondent Nottzhhastarg/ued matsinoe the Tribune! has oondoned me delay upon tindinn thatthe delayiof 20 days inrmakine‘fthed‘eposit is bonande. the claimant is not enWed for interest and penalty and in any ease once interest and penalty were refused by the commissioner while 1 passing the award. me Commisdoner has rightiy refused to eierhin the applioadon for award of interest and penalty. / i , (a) Section m3) or the not is reproduced hammer tor ready L/ i reference :- ) @ .43 -~ “Section 4-A-. (3)vWh.e;egany,.emphyar isjn$faultinpayha ‘ the compensation due under this Act withinmo month fvom the date it !ell due. me Commissionsr shall — (a) direct that the emplnyeLshall. in additionttottha amount of the'atrears. pay strum Matest thenon at the tato of twelve per camper annum or at $uch hi9” m not exceeding the maximum of tho landing rams of any scheduled bank as mayboopoetfledbytho {Central Govemment. by notihcahon in the Officiat Guam on the - amount due; and (b) if. in hisopinion. themie“nmhstitieationfonmndday. ’ direct that the employenshallnin‘additiontotheemoum ‘ of the arrears and interest hereonhnayafurthemtjm not ‘ r exoeedino mnnertcent, ofsuchamounthywav o ~ penalty: Provided that an order for memymenttntemv§ltattmt i ~ be passed under clause.e(b)rwimoutgivinda; reasonable opportunity t9 thedemplweretnshwmwewhyrilsbould not be passed." The liability of the employerkenfotyMmatteruntmtineurerta9a interest and/or penalty m.mms§¢..$ecnw‘%@)_ omeActism longer res integra as the samehasbeenmsetttedhyemeeHonlhlexsomemeOourt ,inthe matter of Ved Prakesh GemvsPmnIDevlandmmmftedin (1997) 8 SOC f. The extract fromparacraphiMandmh 20 of the ./ said report is reproducedhereuuderfoueadyreferenoe :~ “As we have seen earlier whrle diswsslfm me scheme of Section 4-A or the Compensaton Aotthe ieolsiatiVe intent re I cteariy discernible that encameompensawn fallsedue and within one month it is not paid bythe employerhten as per sedan 4~A(3)(e) interest at me permissible rate gets added to the said principal amourt of compensation as me i claimants would stand deprlVed‘ of their leoauy due r oompensation for a period beyond one month which is ‘ statutorily Vgranted‘toetheoemployenconeemedt9makegood H ; his liability for“ the-b_ene,nt of the claimam whoese'“ (9) “ f f , @ breadwinner might have either been seriousiy injured or might have iost his lIfe liability of the employex te make gm the amen! ameuni 9f” ” " W . wmmneamn within petmissihle umrlimit Mina which e liability t9 pay mime: on me prmpal amunt umier the m1 pmwswn rememe a part and name! of the mew iiabiiihi which i$ Wally liable t9 be wham§¢ by the MUM i employer. conseqgeniiy each impgsmen 9f miemt 9h the pal: and meet 0i the ieeei habimv et me ineuree to be enseharuee under me cemneneahen Aet and net eehere it. it. reimburse the emnlever qua hie Mn! mulch i9 nav eemnensahen i9 the claimmis m ease 9f eueh meter ‘ ense ter midemon. It rs of course true that one months i period as contempiated under Section 4N3) may start ‘ running for the purpoee of attracting Interest under sub- ) ’5, clause (a) thereof in case where ptovisional payment has to . be made by the Insured mlayet as per Section 4-A(2) d the Compensauon Act (tom the data such Wm! , payment moomes‘duewBut when the employerudoes, not ' awept his liability as a whole “under Whoa! enumetated by us eatllet then Seetlon 4N2) wouldnot net, attracted and one month’slpenod wouldlstattkmnninq from * ~ the date on which due ccmpensaion payable, by the employer is adjudicated upon by the Commissioner and in either case the Commissioner would bejush‘tied..in directing, .l payment of lntetestlmlsuoha‘coniinaemieolnotohly horn the " - date oi the award but abo from the date of the accident conoe‘med. Such an order passed, by the Gommissimer would remain perfectly justihed on the scheme of Seou'on 4- A(3)(a) of the Compensation Act. Em §llnllaf mmueme 2:; .. after teeumo showmuse home to the employer oancemetl who Wilt have reaeonabte omrtumtv t9 show eeuse why on mount of some iuen‘neation on hie nan for the delay in navment of the eomoeneetion amount he le notJtable lot this penalm However, if ultimately. Ito Commissioner otter giving reasonable opportunity to the employer to show cause takes the view that there is no justincah'on for such delay on the part of the . insured employer and because of hb unjustified delay and due to his own personal fault he is held responsible for me delay, then the penaly would” yet imposed on him". “20 in view of tire aforesaid conciusion of ours the present i appeais will have to be partly allowed The impugned judgments of the High Court writ mnd oontirmed to die , / ‘ extent they .exonetatetherespondem—rnsuranoecompanies i i of the liability to pay, the penalty impotedon the insured i employers by the Workmen’s Commissioner under, Section it 4-A(3) or the Compensation Act. But the impugned u a ,,é_ judgments will be set aside tome extenttoqwhich may seek to exonerate insurance companies, fanmgetingme daims of interest awarded on the principaleompensetion amounteby : the Workmen's Commissioner on account of default of the "~ ‘ insured in paying “up the compensation amount within the period contemplated by Section 4-A(3) of. the, Compensation t Act. Accordingly it must be held that the respondenta insurance company will be liable to meet die claim of the appellant-insured in Appeals Nos. 1569845699 of 1996 to the extent of Rs 88.548 in Claim Case No. 2 of 1992 with interest thereon at the rate of 6% per annum from the date of =' , accident till the date of payment.‘ But the respondent- insurance company will not be liabie to meet the claim of. penalty of Rs 44.274 imposedron the appellant-insured along with the interest of 6% per annum on the said amount of Rs 44,274. To that extent‘the award of the Commissioner will sand moditied. So far as the Claim Case No. 3 of 1992 is concemed the respondent-insurance company will be liable to reimburse the compensation amount of Rs 88.968 with interest at die rate of 6% p.a. thereon from the date o the accidenttill the date of payment”. (emphasis supplied) (10) ln view of the sewed legal position there is no hesitation for this Court to hold that on account of default made by the respondent No. 2 in making payment of the award amount within one month from the date of award it is liable to pay interest from the date of accident till the date of payment [as awarded by the supreme Court in para 20 in the matter of Ved Prakash Gary (supra)]. (1 1) Leamed counsel for respondent No. 2 has argued that when interest i has not been awarded while passing the’award, the Commissionet or for i that matter this Court while considering the Commissioner's ordet, could not award interest subsequently and the instant peh‘tion is not ; maintainable. The said argument deserves outtioht rejection inview of the ‘ l law laid-down by the Supreme Court in the matterrofyedlzkraltosh Gary f -7— (supra). It is tobemseanmatugmployerlinsuret,Miedkeir/Jiahm‘and ma u Commissioner retused to award interest whilepassmmewmdon the" groundthat me..,amount.ha§;‘fauenhgdua§¢on;_me.,daatg;.9fr,‘a¢udiaationLe; on the date of award. Once it is held that the amount has fatten due on the u 4 ;_ date of award._the Jiahilitytomake. namentcoijnterest wouidarise after expiry of one month frommedateofpassingofthe awardand thus-me very cause of action for movingthewappljoetion fortpaymentof interest: under Section 4M3) would arise ,atter one month, “when, the employerrrnsurer..fa,iisteodepositr;ttieeaward,amountetéttuhtone§mmta5 r directed by the sCommissionetewhiiewpasstng the award. “The insurer L cannot be allowed to argue mat mougmthasimageidetauimmmr the claimant cannot claim the statutoryilitereatthus. it is held mat the instant petition is maintainabie. Even otherwise. as held by the Supmne Court in the matter of Ved Prakash M (supva) the statutory iiabiiity towards interest is automatic. once defauit is made in paying the compensation due beyond the permissible limit of one month and the said amount of interest gets automatieally amalgamated in the award amount. The only question to be considered is whether the interest would be paid from the date of accident or from the date of applioetion. since in the matter of Ved Prakash Gem (supra) Hon'ble Supreme Court. in paragraph 20 of the judgment, has allowed interest from the date of»accident dll the date of payment, this Court also deems it proper to allow intere& from the Idate or accident tin the date or payment; ‘ (12) In View of the above, me instant petition pardy succeeds and it is g held that the petitioner/claimant is entitled to interest on the award amount ‘ Q provided under Section 4—A(3) of the .Act from the dateof accident till the date of payment. however petitioner’s claim regarding penalty is 1/ @ ,8“ ,1. rejected in view of the factthatmermgommissimetshasmndmmawm; ‘ in depositingthe awatd‘amount within one monm. (13) Thewrit,pantionjapamgupwadyasuindcabdnbova; - w} a /,, (14) Noorderasto :usls. Sdl— Prashant Kumar Mishra Judge