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2019 Supreme(Bom) 1214
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
VIBHA KANKANWADI, J.
Jabeen Begum w/o. Rauf Khan and Ors. - Appellants
Versus
Mohd. Shafi s/o. Mohd. and Ors. – Respondents
First Appeal No. 0390 of 2019
Decided On : 19-08-2019
For the Appellant :Mr. Zia-Ul-Mustafa, Advocate
For the Respondent:Mr. Anifadil Z. Biyabani, Advocate, Mr. V.R. Mundada, Advocate, Mr. Uday D. Dalvi, Advocate
Headnote:
Employees Compensation Act – Section 4,4A and 4-A(3)(b) - Compensation claim – Insurance - Claimants are the legal heirs of one, who was serving as driver with respondent - Respondent is the owner of tempo - Respondent used to give salary per month and Bhatta per day to deceased - Deceased was driving the said tempo - However, due to technical fault, said tempo dashed to a tree, as a result of which, said one had sustained severe injuries - He was shifted to Hospital - However, he succumbed to injuries - Offence was registered against him but he was discharging duties for respondent at that time - Claimants had incurred amount on the treatment of the deceased - Insurance was with respondent - Since the respondents had not paid compensation, notice was issued under Section 10 of Employees Compensation Act - In spite of the notice, when compensation was not given, petition was filed for getting compensation under Section 4 and 4A of the Employees Compensation Act - Respondent no.01 filed say - He admitted that deceased was driver on the said tempo - It was also admitted that while discharging the duty, said one met with the accident and later on succumbed to injuries – Held, in view of Section 4-A of the E.C. Act, amount of compensation where death results from the injury, compensation to be awarded would be an amount equal to 50 % of monthly wages of deceased employee, multiplied by relevant factor or an amount, whichever is more. 50 % of monthly salary of the deceased would be sum - Age of the deceased, as has been concluded by learned trial Court, is 45 years and as per Schedule IV of Act, relevant factor would be sum - Thus, claimants would be entitled to get compensation - Learned trial Court has granted amount towards medical bills which has not been challenged by Insurance Company - Examination in chief of CW 01 is nothing but replica of petition and as such, it appears that even when arguments were advanced before learned trial Court, there was no prayer on behalf of the claimants to issue notice as per the proviso to Sub-section 3(b) to Section 4-A of the Act - When notice was not issued giving reasonable opportunity to the employer, as to why such penalty should not be imposed upon him, penalty cannot be so imposed now - Appeal deserves to be partly allowed.
JUDGMENT :
1. Present appeal has been filed by the original claimants for enhancement in the compensation that has been granted by the learned Commissioner for Employees' Compensation and Judge, Labour Court, Nanded, in ECFA No. 23 of 2013, dated 11-08-2014.
2. The claimants are the legal heirs of one Rauf Khan s/o. Jalil Khan, who was serving as driver with respondent no.01. Respondent no.01 is the owner of tempo bearing No. MH-17/AG-2564. Respondent no.01 used to give salary of Rs. 9,000/- per month and Bhatta of Rs. 100/- per day to deceased Rauf. The deceased was driving the said tempo from Purna to Nanded on 12-05-2013. However, due to technical fault, the said tempo dashed to a tree, as a result of which, Rauf had sustained severe injuries. He was shifted to Lotus Hospital, Nanded. However, he succumbed to injuries on 19-05-2013. Offence was registered against him but he was discharging duties for respondent no.01 at that time. Claimants had incurred amount of Rs. 1,32,000/- - on the treatment of the deceased. The insurance was with respondent no.02. Since the respondents had not paid compensation, notice was issued under Section 10 of the Employees' Compensation Act on 10-06-2013. In spite of the notice, when compensation was not given, the petition was filed for getting compensation of Rs. 12,37,020/- under Section 4 and 4A of the Employees' Compensation Act [For short, "E.C. Act"].
3. Respondent no.01 filed say. He admitted that deceased Rauf was driver on the said tempo. It was denied that he was giving salary of Rs. 9,000/- per month, but stated that he was giving Rs. 8,000/- per month + Bhatta of Rs. 100/- per day. It was also admitted that while discharging the duty, Rauf met with the accident and later on succumbed to the injuries.
4. Respondent no.02 - Insurance Company also filed written statement and denied all the averments in the petition. It was denied that Rauf was serving with respondent no.01 as driver and was getting salary. It was also denied that due to the mechanical defect, the tempo dashed tree, causing injury to deceased and then he succumbing to those injuries. It is stated that there is delay of 07 days in filing FIR with the police. The said delay has not been explained. The petition is filed in collusion by the claimants as well as respondent no.01.
5. Issues were framed. Claimants had adduced evidence to support their claim. Taking into consideration the evidence, the petition was partly allowed. The respondents were directed to pay jointly and severally an amount of Rs. 5,04,931/- together with interest at the rate of 12 % per annum from the date of accident till actual realization of entire amount. Further amount of Rs. 1,32,000/- - was also granted to be recovered from the respondents jointly and severally towards medical expenses actually incurred by the claimants on the treatment of the deceased.
6. Present appeal has been filed by the claimants challenging the quantum that has been awarded by the learned Commissioner. It has been contended that the learned Commissioner has wrongly taken the basis of Rs. 5,960/- equivalent to the basic pay of the skilled worker in 2013, stating that there is no evidence on record. It is stated that the Commissioner ought to have considered that the deceased was getting salary of Rs. 8,000/- per month. It is also contended that in view of Section 4-A(3)(b) of the E.C. Act, the learned Commissioner has failed to grant 50 % of the penalty amount against respondent no.01.
7. Heard learned Advocate Mr. Zia-Ul-Mustafa for the appellants and learned Advocate Mr. V.R. Mundada for respondent no.02. Respondent no.01 and respondent no.03, though appeared through Advocates, respective Advocates were absent. In fact, respondent no.03 is the original claimant no.04.
8. It has been vehemently submitted on behalf of the appellants, that in specific words, respondent no.01 has admitted in the written statement, that he was giving salary of Rs. 8,000/- per month and Bhatta of Rs.
