1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT: S.B. CIVIL MISC. APPEAL NO.761/1999 United India Insurance Company Ltd., Jodhpur Vs. Smt. Meera Kanwar & Ors. Date of Judgment 02nd August, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. J.K. Chanda, for the appellant. Mr. Deelip Kawadia, for respondent-claimants. ---- BY THE COURT: This appeal under Section 30 of the Workmen's Compensation Act, 1923 ('the Act') is directed against judgment and award dated 29.06.1999 passed by the Workmen's Compensation Commissioner, Udaipur ('the Commissioner'), whereby, a sum of Rs.83,192/- alongwith interest @ 12% per annum has been awarded to the claimants. The facts in brief are that respondent Smt. Meera Kanwar alongwith her three minor children filed an application for compensation ('the application') before the Commissioner with the averments that Chaman Singh husband/father of the claimants was employed with respondent No.1 Kishore Bhai on his Truck not MMP-5827 as driver and was receiving Rs.1,000/- as monthly wages and his age was 30 years; on 23.11.1991 the said Chaman Singh started with the truck at 06:00 PM and on account of a sharp curve alongwith a slop, the truck became 2 unbalanced, the brakes failed and it fell into a ditch, resulting in grievous injuries to the driver Chaman Singh, who succumbed to the injuries; the claimants claimed a sum of Rs.83,200/- as compensation alongwith penalty and interest. The appellant Insurance Company filed its reply to the application and disputed the relationship of employer and employee between the insured and deceased Chaman Singh; rest of the averments made in the application were also denied; the employer remained ex parte. The Commissioner framed three issues. On behalf of the claimants two witnesses were examined, which included claimant Smt.Meera Kanwar, who deposed about the income of the deceased; other witness Inder Singh brother of the deceased was also examined, who deposed about the employment of the deceased on the truck as driver and the fact that he lodged FIR on account of death of his brother. On behalf of the appellant Insurance Company one Kuldeep Dembi, Assistant Divisional Manager was examined, who produced the insurance policy. The said witness admitted in his cross-examination that the Insurance Company did not make any inquiry regarding the salary, driving licence and employment of the deceased and stated that notice was given to the owner of the vehicle, who did not respond to the same. It was submitted by learned counsel for the appellant that the accident did not occur during the course of employment, inasmuch, the deceased Chaman Singh had taken the truck to his residence and while going from residence, the accident 3 occurred and, therefore, it cannot be said that Chaman Singh died during the course of his employment and, consequently, the Commissioner was not justified in passing the award impugned. It was further submitted that the accident occurred on 23.11.1991, however, the Commissioner has awarded interest @ 12% per annum, which is contrary to the provisions of Section 4A(3)(a) of the Act as it then existed. The said provision was amended w.e.f. 15.09.1995 and the amended provision providing for interest @ 12% per annum cannot be applied retrospectively. Learned counsel for the appellant relied on the judgment of Hon'ble Supreme Court in the case of Regional Director, E.S.I. Corporation & Anr. v. Fancis De Costa & Anr. : AIR 199.SC 43.and Oriental Insurance v. Smt. Vilas Devi :
2001. (2) RLW 122.in support of his contentions. On the other hand, learned counsel for the respondents submitted that no plea regarding the accident having not occurred during the course of employment was raised by the appellant Insurance Company before the Commissioner and, consequently, no finding in this regard has been recorded by the Commissioner and, therefore, now it is not open for the appellant to raise this issue in this appeal and no substantial question of law is involved in the appeal. I have considered the rival submissions made at the Bar. So far as the contention raised by the learned counsel for the appellant regarding accident not arising during the course of employment of deceased Chaman Singh is concerned, it is 4 apparent that deceased was employed on a truck belonging to an employer at Bombay, which is apparent from the Vehicle not MMP-5827, address of the employer and the fact that the vehicle was hypothecated with Bombay Mercantile Cooperative Bank and insurance policy was issued from the Divisional Office of the appellant Insurance Company situated at Fort, Bombay and the deceased when he started from his place for work in the truck met with the fatal accident. Regarding the fact whether deceased was entitled to take the truck to his place and when he started back for his work, he met with an accident, no question was put in cross-examination to the claimants. Consequently, it is apparent that the accident arose during the course of employment. The Hon'ble Supreme Court in the case of General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes : AIR 196.SC 19.held that the bus driver while undertake journey to his house in the bus does so in the course of his employment and, therefore, it cannot be said in the present case that the deceased was not working in the course of his employment. In the judgment of Hon'ble Supreme Court in the case of Francis De Costa (supra), the above judgment in the case of Mrs. Agnes (supra) was distinguished as it was found that the employee was not travelling in a transport provided by the employer and, consequently, the said judgment has no application to the present case. Coming to the issue of award of interest @ 12% per annum, the issue is no more res integra in view of the Division 5 Bench judgment of this Court in Oriental Insurance v. Smt. Vilas Devi :
2001. (2) RLW 1224.wherein, this Court held as under:- (28) Lastly it was contended by learned counsel for the appellant in connection with D.B. Spl. Appeal No.10/92 and D.B. Spl. Appeal No.25/92 that rate of interest awarded by the Compensation Commissioner and/or learned Single Judge in the two cases is in excess of maximum that was permissible under the Compensation Act at the time the accident took place or the award of interest was made. It could not have exceeded 6% p.a. This contention appears to be justified. Until amendment in Sec. 4A(3)(a) w.e.f. 15.9.95 vide Act No.30 of 1995, the relevant provision was as under:- (3)(a)-Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together, if in the opinion of the Commission there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty. (29). The expression 'simple interest at the rate of 6%' leaves no room of doubt that maximum rate of interest that could be awarded for delayed payment of compensation is 6% with effect from the expiry of one month from the date it became due. The amendment made in 1995 is not retrospective in its operation. At best it can yield to enhancement of the rate of interest from 6% to 12% w.e.f 1.5.95 if the amount of compensation is outstanding on 1.5.95 and thereafter. Accordingly the award of interest in Appeals No.10/92 and 25/92 needs to be modified by reducing the rate of interest awarded from 12% per annum to 6% per annum. (emphasis supplied) Applying the principles laid down in the said judgment in Oriental Insurance (supra) admittedly the amount was outstanding on 01.05.1995 as the award itself has been passed on 29.06.1999, whereas, the accident occurred in the year 1991, as such, the award needs to be modified to the extent that the claimants would be entitled to interest @ 6% per annum from 6 the date of accident to 01.05.1995 and 12% per annum w.e.f. 01.05.1995 to the date of actual payment. It is noticed that the interim order was passed by this Court on 29.09.1999, which was vacated on 08.05.2006. In that view of the matter, the appeal is partly allowed. The award impugned passed by the Commissioner is modified to the extent that the claimants would be entitled to compensation to the tune of Rs.83,192/- alongwith interest @ 6% per annum from the date of accident i.e. 23.11.1991 to 30.04.1995 and @ 12% per annum w.e.f. 01.09.1995 till the date of actual payment. No costs. (ARUN BHANSALI), J.
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