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2020 Supreme(Mad) 1104
IN THE HIGH COURT OF MADRAS
S. Vaidyanathan, J.
Amutha and Ors. – Appellants
Versus
Thalappakatti Hotels Pvt. Ltd. and Ors. – Respondents
C.M.A. No. 2889 of 2019
Decided On : 25-02-2020
For the Appellant :M. Malar, Advocate
For the Respondent:Vijayan Subramanian and S. Arunkumar, Advocates
Headnote:
Workmens Compensation Act, 1923 – Section 4 – Seeking enhancement of compensation – Compensation to be payable – In the Grounds of Appeal, following Substantial Questions of Law have been raised by the learned counsel for the Appellants – "(i) Whether the learned Joint Commissioner of Labour-I is right in fixing the monthly wages of the deceased when Explanation II of Section 4 of Workmens Compensation Act, 1923 was deleted as per Employees Compensation Act, 1923? – (ii) Whether the Joint Commissioner of Labour-I, is right in not awarding penalty in addition to the amount of the arrears and interest thereon under Section 4-A1(b)?" –Held, it is seen that, though no legal plea has been taken, it is the duty cast upon the person, who makes an application before the authority to take an alternate plea that, in case, the Authority comes to the conclusion that the employee or the dependents is entitled to compensation, for the default in remitting the amount within a period of one month, by invoking, there shall be interest apart from the arrears which may be granted up to 50% of such amount due, to the employee or the dependent – In this case, the liability has been foisted on the Insurance Company – When the policy is a Workmens Compensation policy and that the interest is not agreed to be paid by the Insurance Company, the liability cannot be foisted on the Insurance Company to pay the interest and it is on the employer – Word used in the provisions of the Act is employer – No one can substitute the word employer as insurance company and seek for additional payment in terms of Section 4-A and that the insurance company is not liable to pay – Civil Miscellaneous Appeal stands dismissed.
JUDGMENT :
S. Vaidyanathan, J.
1. Seeking enhancement of compensation, Appellants herein, who are the parents of the deceased workman, have come up with the present Appeal, challenging the order dated 04.04.2019 passed by the Joint Commissioner of Labour-I, Chennai in E.C. No. 76 of 2016.
2. According to the Appellants/Claimants, their son, the deceased Suryaprakash was working as a Delivery Boy in the 1st Respondent/Hotel and that, he died out of and in the course of employment. Before the Authority, the Appellants claimed that the deceased was earning a sum of Rs. 20,000/- as monthly salary, apart from Rs. 250/- as daily batta.
3. The Authority, taking note of the age of the deceased as 19' at the time of accident on 01.07.2016 and fixing his monthly income at Rs. 8,000/-, awarded a sum of Rs. 9,00,880/- as compensation to be payable to the legal heirs of the deceased, together with interest at 12% per annum from the date of accident till the date of deposit, apart from Rs. 5,000/- towards funeral expenses.
4. In the Grounds of Appeal, following Substantial Questions of Law have been raised by the learned counsel for the Appellants:
"(i) Whether the learned Joint Commissioner of Labour-I is right in fixing the monthly wages of the deceased as Rs. 8,000/-, when Explanation II of Section 4 of Workmen's Compensation Act, 1923 was deleted as per Employee's Compensation Act, 1923?
(ii) Whether the Joint Commissioner of Labour-I, is right in not awarding penalty in addition to the amount of the arrears and interest thereon under Section 4-A1(b)?"
5. In support of his case, learned counsel for the Appellants has relied on an Apex Court decision in the case of Jaya Biswal v. Branch Manager, IFFCO Tokio General Insurance Co. Ltd., 2016 (1) TNMAC 289 (SC) : AIR 2016 SC 956 : (2016) 11 SCC 201 : LNIND 2016 SC 54 : 2016-II-LLJ-132 (SC), wherein, it is held as under:
"25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs. 10,000/-. The date of birth of the deceased according to the Driver's License produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the 'completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due', is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:
Rs. 10,000/- x 50% x Rs. 213.57 : Rs. 10,67,850/-.
Funeral expenses to the tune of Rs. 25,000/- are also awarded.
The total amount of compensation payable thus comes to Rs. 10,92,850/-.
26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. 25,000/-."
6. This Court has already dealt with the first Substantial Question of Law raised in this Appeal, in a judgment dated 02.01.2020 rendered in C.M.A. No. 3436 of 2019. Relevant portion of the said judgment is extracted hereunder:
"8. For revision of amount mentioned supra in Explanation-II that was deleted, there should be proper legislation. Whereas, for the purpose of increasing wages under Section 4(1-B), a Notification is suffice. Pursuant to the amendment, a Notification was issued on 31.05.2010, which reads as follows:
NOTIFICATION NO. S.O. 1258(E), dated 31.5.2010
In exercise of the powers conferred by subsection (IB) of section 4 of the Employee's Compensation Act, 1923 (8 of 1923), the Central Government hereby specifies, for the purposes of subsection (1) of the said section, the following amount as monthly wages, with effect from the date of publication of this notification in the Official Gazette namely:
"Eight thousand rupees ".
"11. If the monthly income received by
