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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AT BOMBAY CIVIL APPELLATE JURISDICTION
SMT.ROSHAN DALVI,J.
The State of Maharashtra - Appellant
Versus
Arti Wd/o. Ashok Kapshikar & Ors. - Respondent s
FIRST APPEAL NO.196 OF 1998
DATED: 21ST JUNE, 2007
It is therefore, clear that the deceased fell under Clause (viii) of Schedule II and under Clause (xxx) thereof. He was the Sectional Engineer and Head of the Laboratory Unit. His cross-examination has shown that the deceased did not have authority to dismiss an employee, appoint him or take action against him. The State has relied upon this nature of work of the deceased. Since the deceased fell under Clause (viii) of Schedule II of the Workmen’s Compensation Act. Once he was covered by Clause (viii), the distinction between clerical and Supervisory work and other construction work falls. Such distinction is required under certain other clauses and is specifically not required under Clause (viii). It therefore, does not matter what kind of work the deceased workman carried out. Since he was admittedly employed in the construction of a canal by the State he fell within the definition of the term Workman under Clause (viii) of Schedule II to the said Act. He was therefore, a workman. The judgment, to that extent cannot be assailed.
Workmen’s Compensation Act, 1923 - Section 3-Accident took place during course of employment-Application for grant of leave-Refused by deceased-Murder of deceased committed by the said applicant-Held that a murder committed upon of workman by another workman has to be taken as an accident.-Whether murder tentamounts to an accident. The term "accident" is not defined in the Workman’s Compensation Act. It is also not defined in the General Clause Act. Black’s Law Dictionary defines "accident" under Workmen’s Compensation Acts as an unforeseen untoward incident which was not reasonably anticipated. The deceased workman could not and did not contemplate his murder. It was an unforeseen an untoward happening.
The incident ended in a criminal prosecution. The assaulter was convicted of murder. He has been sentenced to life imprisonment by the Court of Sessions as Solapur could neither be contemplated nor avoided by the victim. The Workmen’s Compensation Act is a social legislation. It was enacted to give succor to workmen against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines. The injury in this case was caused by the act by another human being. It proved fatal. Hence, it tentamounts to murder qua the assailant. The injury qua the workman is by an accidental act to which he succumbed. Consequently a murder committed upon a workman has to be taken as an accident.
Workmen’s Compensation Act, 1923 - Section 3(5)(b)-Death of deceased, workman-Claim for compensation-Held that suit for damages is maintainable only if workman has entered into an agreement with his employer for providing compensation in respect of such injuries-Appointment of widow of deceased workman on compassionate ground-Appointment on compassionate ground.-It is contended on behalf of the State that since respondent No. 1 was employed as a Junior Clerk with the State on compassionate ground after the death of her husband, her application is barred under Section 3(5)(b) of the Act. Section 3 provides for employer’s liability for compensation. Sub-section (5) is in the nature of an exception. Under that section no suit for damages is maintainable by a workman upon payment of compensation in respect of the injuries sustained by him under the Act or if the workman has entered into an agreement with his employer for providing compensation in respect of such injuries.
Workmen’s Compensation Act, 1923 - Section 4 (as amended by) 1995-Death caused due to assault by employee-Claim for compensation-Held that compensation is to be granted as on date of application-Amount of compensation.-Under Section 4 of the Act the amount of compensation upon the death, which results from the injury is 50% of the monthly wages of the deceased workman multiplied by the relevant factor. The multiplication by the relevant factor is not challenged. The arithmetical calculation is, therefore, not challenged. However, the extent of the percentage of the monthly wages as contended by the Advocate for the respondents is 50% of the wages. Section 4 of the Act to the extent of 50% of the monthly wages calculated was Amended by Act 30 of 1995, which substituted 40% in Section 4(1) to 50% with effect from 15.9.1995. The claim was made on 30.3.1987 for the cause of action which accrued on 3.4.1985. The claim is to be granted as on the date of the application. On the date of the application the amended statute had not come into effect. 40% of the monthly wages multiplied by the relevant factor was, therefore, payable as on the date of the claim.
Workmen’s Compensation Act, 1923 - Sections 4-A(2) and 3(2)-Liability for penalty-Due to delay in depositing-No justification-Held that the award of penalty is illegal.-Under Section 4-A(2) of the Act if an employer does not accept the liability for compensation to the extent it is claimed, he is enjoined to make a provisional payment based upon the extent of liability which he accepts. Such payment is required to be deposited with the Commissioner or made to the workman without prejudice to the right of the workman to make any further claim.
Since the State has denied the entire claim, they could not deposit any amount of claim as accepted by them with the Commissioner or pay any such amount to the workman or his heirs and legal representatives. The Commissioner has levied penalty to the highest extent of 50% on the amount of the arrears due to be paid by the employer (State) as adjudicated upon by him. The award of the penalty is, therefore, illegal. It could not have been made under Section 4-A(3)(b) of the Act.
Workmen’s Compensation Act, 1923 - Section 4-A(3)(a)-Claim for interest on amount of compensation-Interest granted @ 6%-Challenged-Held that interest levied upon the amount of compensation is calculated at the rate of 6% per annum.-Payment of interest is payable at the statutory rate of 12% per annum on the amount of arrears due and payable and adjudicated upon by the Commissioner under Section 4-A(3)(a) of the Act. The Commissioner has granted a rate of interest of 6% per annum on the amount of compensation calculated and made payable. That is not the statutory rate of interest. Under the aforesaid sub-section, the statutory rate of interest is 12% or such higher rate not exceeding the maximum of the lending rates of any scheduled bank. The Commissioner, therefore, can either award a rate of interest of 12% or higher. He has no discretion to levy interest at any lower rate than 12%.
In this case, an interest levied upon the amount of compensation calculated is at the rate of 6% per annum from a given date. The rate of interest 6% is statutorily incorrect and, therefore, the award to that extent, is incorrect.
Workmen’s Compensation Act, 1923 - Section 10(1)-Death occurred due to assault by an-Employee working under him during his duty period-Question arises as to limitation-Held that the prayer for condonation of delay has to be made only if there is delay which can be condoned at the discretion of Court.-Preferring the claim means filing the claim. It does not include removing of the objections. Some of the objections would be merely technical. Non removal of objections per se cannot extend the period of preferring the claim.
Since there was no prayer for condonation of delay the claim got barred by limitation. That is an incorrect contention. The prayer for condonation of delay has to be made only if there is delay which can be condoned at the discretion of the Court. A bar created under any statutory provisions can never be condoned by the Court. Consequently it relates only to the initial filing of the claim. Upon such filing the claim must be taken to have been preferred. That having been done within the 2 years statutory period, the claim cannot be taken to be barred by the law of limitation.
The Commissioner and Judge has rightly decided this aspect.
Workmen’s Compensation Act, 1923 - Section 2(1)(n)(i), Schedule II, Clause (viii) - Working in Laboratory for testing - Deceased, a workman - Assault by employee working under him - Claim for concrete cement compensation - Question arises that whether he was a workman or not? - Held that he fell within the definition of the term "Workman" under Clause (viii) of Schedule II. - As against the reading of Clause (viii) shows persons employed in construction, maintenance, repair or demolition of building, dams, canals etc. By its very nature the employment of such persons is at site. They are analogous to field work, they cannot be employed in a separate administration office and hence, would not fall under a separate clerical capacity. Consequently even supervisors or engineers at the construction site engaged in building any dam, canal etc. would not be excluded as per the unambiguous reading of Schedule II.
It is therefore, clear that the deceased fell under Clause (viii) of Schedule II and under Clause (xxx) thereof. He was the Sectional Engineer and Head of the Laboratory Unit. His cross-examination has shown that the deceased did not have authority to dismiss an employee, appoint him or take action against him. The State has relied upon this nature of work of the deceased. Since the deceased fell under Clause (viii) of Schedule II of the Workmen’s Compensation Act. Once he was covered by Clause (viii), the distinction between clerical and Supervisory work and other construction work falls. Such distinction is required under certain other clauses and is specifically not required under Clause (viii). It therefore, does not matter what kind of work the deceased workman carried out. Since he was admittedly employed in the construction of a canal by the State he fell within the definition of the term Workman under Clause (viii) of Schedule II to the said Act. He was therefore, a workman. The judgment, to that extent cannot be assailed.
Workmen’s Compensation Act, 1923 - Section 3 - Accident took place during course of employment - Application for grant of leave - Refused by deceased - Murder of deceased committed by the said applicant - Held that a murder committed upon of workman by another workman has to be taken as an accident. - Whether murder tentamounts to an accident. The term "accident" is not defined in the Workman’s Compensation Act. It is also not defined in the General Clause Act. Black’s Law Dictionary defines "accident" under Workmen’s Compensation Acts as an unforeseen untoward incident which was not reasonably anticipated. The deceased workman could not and did not contemplate his murder. It was an unforeseen an untoward happening.
The incident ended in a criminal prosecution. The assaulter was convicted of murder. He has been sentenced to life imprisonment by the Court of Sessions as Solapur could neither be contemplated nor avoided by the victim. The Workmen’s Compensation Act is a social legislation. It was enacted to give succor to workmen against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines. The injury in this case was caused by the act by another human being. It proved fatal. Hence, it tentamounts to murder qua the assailant. The injury qua the workman is by an accidental act to which he succumbed. Consequently a murder committed upon a workman has to be taken as an accident.
Workmen’s Compensation Act, 1923 - Section 3(5)(b) - Death of deceased, workman - Claim for compensation - Held that suit for damages is maintainable only if workman has entered into an agreement with his employer for providing compensation in respect of such injuries - Appointment of widow of deceased workman on compassionate ground - Appointment on compassionate ground. - It is contended on behalf of the State that since respondent No. 1 was employed as a Junior Clerk with the State on compassionate ground after the death of her husband, her application is barred under Section 3(5)(b) of the Act. Section 3 provides for employer’s liability for compensation. Sub-section (5) is in the nature of an exception. Under that section no suit for damages is maintainable by a workman upon payment of compensation in respect of the injuries sustained by him under the Act or if the workman has entered into an agreement with his employer for providing compensation in respect of such injuries.
Workmen’s Compensation Act, 1923 - Section 4 (as amended by) 1995 - Death caused due to assault by employee - Claim for compensation - Held that compensation is to be granted as on date of application - Amount of compensation. - Under Section 4 of the Act the amount of compensation upon the death, which results from the injury is 50% of the monthly wages of the deceased workman multiplied by the relevant factor. The multiplication by the relevant factor is not challenged. The arithmetical calculation is, therefore, not challenged. However, the extent of the percentage of the monthly wages as contended by the Advocate for the respondents is 50% of the wages. Section 4 of the Act to the extent of 50% of the monthly wages calculated was Amended by Act 30 of 1995, which substituted 40% in Section 4(1) to 50% with effect from 15.9.1995. The claim was made on 30.3.1987 for the cause of action which accrued on 3.4.1985. The claim is to be granted as on the date of the application. On the date of the application the amended statute had not come into effect. 40% of the monthly wages multiplied by the relevant factor was, therefore, payable as on the date of the claim.
Workmen’s Compensation Act, 1923 - Sections 4-A(2) and 3(2) - Liability for penalty - Due to delay in depositing - No justification - Held that the award of penalty is illegal. - Under Section 4-A(2) of the Act if an employer does not accept the liability for compensation to the extent it is claimed, he is enjoined to make a provisional payment based upon the extent of liability which he accepts. Such payment is required to be deposited with the Commissioner or made to the workman without prejudice to the right of the workman to make any further claim.
Since the State has denied the entire claim, they could not deposit any amount of claim as accepted by them with the Commissioner or pay any such amount to the workman or his heirs and legal representatives. The Commissioner has levied penalty to the highest extent of 50% on the amount of the arrears due to be paid by the employer (State) as adjudicated upon by him. The award of the penalty is, therefore, illegal. It could not have been made under Section 4-A(3)(b) of the Act.
Workmen’s Compensation Act, 1923 - Section 4-A(3)(a) - Claim for interest on amount of compensation - Interest granted @ 6% - Challenged - Held that interest levied upon the amount of compensation is calculated at the rate of 6% per annum. - Payment of interest is payable at the statutory rate of 12% per annum on the amount of arrears due and payable and adjudicated upon by the Commissioner under Section 4-A(3)(a) of the Act. The Commissioner has granted a rate of interest of 6% per annum on the amount of compensation calculated and made payable. That is not the statutory rate of interest. Under the aforesaid sub-section, the statutory rate of interest is 12% or such higher rate not exceeding the maximum of the lending rates of any scheduled bank. The Commissioner, therefore, can either award a rate of interest of 12% or higher. He has no discretion to levy interest at any lower rate than 12%.
In this case, an interest levied upon the amount of compensation calculated is at the rate of 6% per annum from a given date. The rate of interest 6% is statutorily incorrect and, therefore, the award to that extent, is incorrect.
Workmen’s Compensation Act, 1923 - Section 2(1)(n), Schedule II, Clause (viii) - "Workman". - Since deceased was admittedly employed in construction of a canal by State hence he fell within definition of term work- man under clause (viii) of Schedule II to Act.
Workmen’s Compensation Act, 1923 - Section 3(5)(b) - Compassionate appointment. - Where a widow of deceased workman was appointed on compassionate ground therefore such appointment not debarred her to make a claim under W.C. Act.
Workmen’s Compensation Act, 1923 - Section 10(1) - Claim for compensation. - Since a bar created under any statutory provisions relates only to initial filing of claim hence claim for compensation preferred within 2 years statutory period is not barred by law of limitation.
Workmen’s Compensation Act, 1923 - Section 10(1) - Period of limitation for claiming compensation. - Since preferring claim means filing the claim, hence non-removal of objections per se cannot extend period of preferring claim.
Workmen’s Compensation Act, 1923 - Section 10(1) - Death occurred due to assault by an - Employee working under him during his duty period - Question arises as to limitation - Held that the prayer for condonation of delay has to be made only if there is delay which can be condoned at the discretion of Court. - Preferring the claim means filing the claim. It does not include removing of the objections. Some of the objections would be merely technical. Non removal of objections per se cannot extend the period of preferring the claim.
Since there was no prayer for condonation of delay the claim got barred by limitation. That is an incorrect contention. The prayer for condonation of delay has to be made only if there is delay which can be condoned at the discretion of the Court. A bar created under any statutory provisions can never be condoned by the Court. Consequently it relates only to the initial filing of the claim. Upon such filing the claim must be taken to have been preferred. That having been done within the 2 years statutory period, the claim cannot be taken to be barred by the law of limitation.
1. The State has challenged the Judgment dated 15th November, 1997 passed by the Commissioner for Workmen's Compensation Act and Judge, Ist Labour Court, Solapur ordering the compensation and penalty under the Workmen's Compensation Act, 1923 (the Act) for the accident caused to the husband of Respondent no.1 and the father of Respondent s 2 and 3, on 3rd April, 1985 at the premises of the Appellants and during the course of the employment of the deceased. The deceased was admittedly a Sectional Engineer in the Quality Control Department of the Appellants at Bhandishegaon, Tal: Pandharpur , Dist: Solapur, Maharashtra. It has been the case of the Respondent s, who are the claimant s, that the deceased was working in the Laboratory for testing cement, concrete and mortar blocks. There were 5 labourers, one Lab Assistant and one Chief Lab Assistant working in their laboratory. There was one Sopan Sadhu Darekar who was working under the deceased. He applied for leave to the deceased, which was refused. He therefore hit the deceased with an iron rod. The deceased was injured and he succumbed to his injuries. He was declared dead before admission to the hospital on the same day. The Respondent s claimed Compensation under the Workmen's Compensation Act before the learned Commissioner and Judge.
2. The Respondent No.1, widow of the deceased was given employment on compassionate grounds soon after the incident. She filed the claim on 31st March, 1987. The claim was not adequately stamped and objection was raised as to its stamping on 2nd April, 1987. The claim was correctly stamped on 29 th July, 1987.
3. It is the contention on behalf of the Appellant that the claim has barred by law of limitation since it has not even filed within 2 years of the death as required under Section 10(1) of the Workmen's Compensation Act. It is also the claim of the Appellants that the deceased was working for the Supervisory /Clerical capacity and hence, he was not a workman under Section 2(1)(n)(ii) of the Workmen's Compensation Act. It is further their case that since the Respondent No.1 was given appointment on compassionate grounds the claim cannot be maintained under Section 3(v) (b) of the Workmen's Compensation Act. They further contend that since the deceased was murdered the incident does not tantamount to accident and hence, compensation under the Workmen's Compensation Act is not payable. The Appellants' further challenge, the penalty imposed upon the Appellants for failure to deposit 50% of the claim amount as required under 4A of the Workmen's Compensation Act. They also contend that the act of murder and the motive for murder or the reasons leading to murder have no bearing upon the employment of the deceased and hence, the act is not in the course of employment consequent upon which the provisions of Workmen's Compensation Act are not attracted, since there is no injury by accident to the workman.
4. The Respondent s have filed cross objections. The impugned Judgment grants interest at the rate of 6% p.a from 27 th September, 1987, the date of the claim instead of at the statutory rate of 12% p.a of the Workmen's Compensation Act. The Respondent s have further challenged the grant of the amount of compensation under Section 4(1)(a) of the Workmen's Compensation Act.
5. The learned Judge has considered the aspects of the applicability of the act to the deceased as the workman, the nature of the accident as to whether it was during the course of employment of the deceased, the act of murder resulting in an accident by which death was caused to the deceased. The aspect of limitation, the rate of interest and the amount of compensation upon considering the evidence led by the parties and as per law.
6. Certain substantial questions of law arise in this Appeal. They can be stated as follows : - (1) Whether the period of limitation computed from the date of the accident or the death continues up to the initial filing of the claim or ti
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