HIGH COURT OF ORISSA: CUTTACK F.A.O. No.424 of 2012 From judgment dated 30.06.2012 passed by the Commissioner for Employees’ Compensation, Ganjam, Berhampur in W.C. Case No.48 of 2011. -------Executive Engineer (Electrical), SOUTHCO, At/P.O./P.S. Phulbani, Dist: Kandhamal and others … Appellants … Respondents -VersusSmt. R. Wara Laxmi and others For Appellants : M/s. P. Mohanty, D.N. Mohapatra, J.Mohanty, P.K. Nayak & S.N. Dash For Respondents : M/s. B.N. Samantaray, N. Ch. Tripathy, R.K. Parichha, D. Pattnaik & P. Jena [For Respondent Nos.1 to 4]. ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment :
23. 08.2013 B.N. Mahapatra, J.This appeal has been directed by the appellants under Section 30 of the Employees’ Compensation Act, 1923 challenging correctness of the judgment dated 30.06.2012 passed by the Commissioner for Employees’ Compensation, Ganjam, Berhampur (for short, “Commissioner”.) in W.C. Case No.48 of 2011.
2. The case of the claimant-respondents before the Commissioner in a nutshell is that the husband of respondent No.1, namely, late R. Nagaraja was working as a Helper under opposite party No.3-Junior 2 Engineer (Electrical), SOUTHCO, At/P.O./P.S. K. Nuagaon, DistrictKandhamala. On 28.05.2010 at about 4.30 P.M. while her husband was assisting the Lineman in an electric pole for repairing 33/11 KV supply electric line of Daringibadi at K. Nuagaon sub-station, all of a sudden he got electric shock and fell down from the electric pole. As a result of such accident, the deceased sustained burn injuries all over his body. The deceased was immediately shifted to K. Nuagaon hospital for treatment. Thereafter, he was referred to Baliguda hospital and then he was shifted to M.K.C.G. Medical College & Hospital, Berhampur for better treatment. The deceased died next day, i.e., on 29.05.2010 at about 7.30 A.M. during treatment. Further case of the claimant-respondents is that the deceased was getting Rs.18,000/- per month and was aged about 53 years at the time of his death. With these averments, the claimant-respondents filed claim petition before the Commissioner claiming compensation of Rs.10,00,000/- (rupees ten lakhs) 3. Being noticed by the Commissioner, opposite parties, who are the present appellants, filed their written statement. Opposite party No.1 filed Form II stating therein that the deceased while working as a Helper in K. Nuagaon Electric Section, Baliguda met with an accident on 28.05.2010, as a result of which he died on 29.05.2010. The deceased was getting salary of Rs.10,030/- per month. The deceased was electrocuted while he was replacing 33 KV horn gap fuse (Y phase) without knowledge and consent of the Lineman and without isolating 33 KV AB switch in a careless 3 and negligent manner. The Helpers are No.authorized to replace the Horn gap fuse. The duty of a Helper is only to assist the lineman. The deceased had No.used the discharge rod and gloves at the time of attempting to replace 33 KV Horn gap fuse.
4. On the rival pleadings of the parties, the Commissioner framed the following issues: “Issue No.1:Whether the deceased R. Nagaraja @ R.Nagaraju was a workman within the meaning of E.C. Act, 1923 & died in an accident arising out of & in course of his employment ?. Issue No.2:Whether the quantum of compensation claimed is due or any part thereof & if so by whom payable ?.”.
5. The Commissioner taking into consideration the argument advanced by both the parties and the evidence of witnesses produced before him, came to the conclusion that the deceased R. Nagaraja @ R. Nagaraju was a workman within the meaning of Employees’ Compensation Act, 1923 and died in an accident arising out of and in course of employment. Placing reliance upon the judgment of the Hon’ble Supreme Court in the case of M. Parameswaran Pillai Vs. Union of India & Another, 2002(2) T.A.C. 359 (SC), the Commissioner accepted the wages of the deceased at Rs.12,931/- per month and limited the same to Rs.8,000/- for the purpose of calculating the compensation amount. Accordingly, he determined the amount of compensation at Rs.5,70,720/- along with interest @ 7.5% per annum for the period from 16.09.2011 to 28.06.2012, i.e., 9 months 12 days which was calculated at Rs.33,530/-. Accordingly, 4 the Commissioner directed the opposite party No.1-Executive Engineer (Electrical), SOUTHCO to deposit the awarded amount before him within one month from the date of the judgment, failing which 50% penalty with 12% interest per annum shall be charged on the awarded amount from the date it fell due. Being aggrieved by the judgment and order of the Commissioner, the appellants have filed the present appeal.
6. Mr. P. Mohanty, learned counsel appearing on behalf of the appellants-Executive Engineer (Electrical) submitted that the impugned judgment passed by the Commissioner is contrary to law and evidence on record. The Commissioner is No.correct to hold that the deceased had done the work with the direction of appellants herein. Computation of compensation taking the wages at Rs.8,000/- per month in view of the amendment to the quantum which was brought into force to the Act with effect from 31.05.2010 while the death occurred on 29.05.2010, is bad in the eye of law. Placing reliance upon the judgment of the Hon’ble Supreme Court in the case of Kerala State Electricity Board v. Valsala K., AIR 199.SC 3502.it was submitted that the amended provision has no retrospective effect since the workman was attempting to replace 33 KV horn gap fuse on 29.05.2010. The deceased died in the accident for his own negligence as he was replacing 33 KV horn gap fuse without instruction of the superior/competent authority. Therefore, the appellants are No.liable to pay any compensation to the claimant-respondents in view of Section 3(1) (b)(iii) of the Workmen’s Compensation Act, 1923”
7. Mr. B.N. Samantaray, learned counsel appearing on behalf of the claimant-respondents submitted that respondent No.1, in order to prove the case has been examined as P.W.1 and filed certain documents in respect of their stand. The appellants could No.prove that the deceased died due to his own negligence. The appellants have examined one witness through the Lineman, Man Mohan Bastia, as O.P.W.1 under whom the deceased was working as Helper who admitted the employment of the deceased under the present appellants. It is further stated that he does No.kNo.whether the deceased had put on the hand gloves and discharge rod while shifting 33 KV Horn Gap Fuse. Mr. Samantaray emphatically argued that even if for the sake of argument it is accepted that the deceased died due to his own negligence, the claimants canNo.be deprived of getting compensation, because the death of deceased occurred/arose out of and in course of his employment. Placing reliance upon the judgment of the Hon’ble Supreme Court in the case of Pratap Narin Singh Deo vrs. Srinivas Sabata and Another, 1975 STPL (LE) 7986 SC, Mr. Samantaray submitted that the Hon’ble Supreme Court has awarded compensation where the appellant had pleaded that the accident had taken place solely because of the own negligence of the deceased. Further, placing reliance upon the judgment of the Hon’ble Supreme Court in the case of Rathi MeNo.vs. Union of India, 2001(2) T.A.C. 250 (S.C.) : (2001) 3 SCC 714.it was submitted that the Rules prevailing at the time of making order for payment of compensation should be considered. It is further submitted that in the case of M. Parameswaran Pillai (supra), the Hon’ble Supreme Court 6 has observed that the claimants are entitled to the benefit of amendment raising quantum of compensation. Therefore, the Commissioner has rightly applied the amended provisions while accepting the monthly wages of the deceased. Placing reliance on the cases of Pratap Narin Singh Deo (supra) and National Insurance Co. Ltd. vs. Musabir Ahmed and Another, 2007 (2) TAC 3 (SC), Oriental Insurance Co. Ltd. vs. Mohd. Nasir and another, 2009(3) TAC 598(SC) and Oriental Insurance Co. Ltd. vs. Siby George and others, 2012 (4) TAC 4 (SC), it was submitted that interest is to be awarded from the date of filing of the claim petition till the date of payment.
8. On the rival contentions of the parties, the following questions fall for consideration by this Court: (i) Whether the deceased was replacing 33 KV Horn gap fuse without instruction of the Superior/Competent Authority for which he died due to his own negligence and thus, the appellants are No.liable to pay compensation to the claimants ?. (ii) Whether the Commissioner is justified to accept the salary of the deceased at Rs.12,961/- per month and limited it to Rs.8,000/- for the purpose of calculating compensation amount which was brought into force by way of amendment of the Act w.e.f. 31.05.2010 while the death of the deceased occurred on 29.05.2010 ?.
9. So far question No.(i) is concerned, undisputedly the appellants have No.proved by way of adducing any evidence that the workman was replacing 33 KV Horn gap fuse (Y Phase) without instruction of the superior/competent authority. No evidence/document was also produced either by the respondents or OPW 1 before the Commissioner that on the 7 date of accident, the Lineman under whom the deceased was working as a Helper had gone to Mahasingi to take meter reading which is 6 KMs away from the place of accident.
10. At this stage, it is appropriate to extract the relevant portion of the impugned judgment: “………The O.Ps admitted in their W/S as well as in written argument that the deceased R. Nagaraju was working as a helper under SOUTHCO in K. Nuagaon electrical section & while he was attempting to replace 33 KV Horn gap fuse, he got electric shock & sustained electrical burn injuries on 28.05.2010 at about 4.30 P.M. & succumbed to injuries on 29.05.2010 at about 7.30 A.M. while undergoing treatment at M.K.C.G. Medical College & Hospital, Berhampur. The O.P.W.1 also stated that the deceased R. Nagaraju was working as a helper on the date of accident & he was attached with him to assist the work. the O.P.W.1 came to kNo.after enquiry that the deceased while shifting the 33 KV Horn gap fuse had No.used the hand gloves & discharge rod & by which he was electrocuted & died due to his own fault. On the date of accident the O.P.W.1 had gone to Mahasingi to take meter reading which is 6 kms far from the accident spot. In this connection neither the O.Ps No.O.P.W.1 submitted any document before this Court that the O.P.W.1 had been directed by the O.Ps for taking electrical meter reading at Mahasingi. It clearly speaks that the lineman was present at the spot on 28.05.2010 at about 4.30 P.M. & as per the direction of the lineman, the deceased R. Nagaraju was replacing the 33 KV horn gap fuse & while doing so, he got electric shock & fell down & sustained electrical burn injuries. No subordinate staff will do the abovesaid hazardous work without any directions/instructions of their higher authorities. Perhaps for hiding of the truth, the O.P.W.1 deposed falsely before this Court. Further after hearing the news about the electrical accident of R. Nagaraju, the O.P.W.1 could have informed/lodged the F.I.R. before the concerned police, but the O.P.W.1 did No.do that & remained silent. It was the duty of the lineman (Man Mohan Bastia) to inform his higher authorities as well as to the police regarding the electrical accident of R. Nagaraju, Helper. 8 It is seen from the police report, W/S of O.Ps & Form-II that the deceased R. Nagaraju was working as a helper under SOUTHCO at K. Nuagaon Electrical Section. On 28.05.2010 at about 4.30 P.M. as per the directions of the lineman, the deceased R. Nagaraju, helper was replacing the 33 KV Horn gap fuse & got electric shock as a result of which he sustained electrical burn injuries in all over his body & died on 29.05.2010 at about 7.30 A.M. while undergoing treatment at M.K.C.G. Medical College & Hospital, Berhampur. In the above facts and circumstances, it is of my opinion that the deceased R. Nagaraja @ R. Nagaraju was a workman within the meaning of E.C. Act, 1923 & died in an accident arising out of in course of his employment. Hence, issue no.1 is answered accordingly.”
11. that Nothing has been brought to the notice of this Court to show the above findings/observations of the Commissioner are wrong/perverse.
12. In view of the above, this Court is of the considered view that the appellants are liable to pay compensation to the claimants.
13. So far question No.(ii) is concerned, the facts which are No.in dispute are that the accident took place on 28.05.2010 and the deceased died on 29.05.2010. Section 4 of the W.C. Act, 1923 provides that for the purpose of computation of compensation where monthly wages of the workman exceeds Rs.4,000/- his monthly wages for the purpose of Clauses (a) and (b) of Section 4 of the Act, 1923 shall be deemed to be Rs.4,000/only. However, ceiling of Rs.4,000/- has been enhanced to Rs.8,000/- w.e.f. 31.05.2010, i.e., after two days of the death of the deceased. It is also No.in dispute that the monthly wage of the deceased is more than Rs.8,000/-. In this background, the Commissioner relying upon the 9 judgment of the Hon’ble Supreme Court in the case of M. Parameswaran Pillai (supra), limited the wages of the deceased at Rs.8,000/- per month for the purpose of calculating the amount of compensation.
14. At this juncture, it is relevant to refer to the judgment of the Hon’ble Supreme Court in the case of Valsala K (supra), wherein the Hon’ble Supreme Court has held as under: “ORDER
:- The neat question involved in these special leave petitions is whether the amendment of Ss. 4 and 4A of the Workmen's Compensation Act, 1923, made by Act No.30 of 1995 with effect from 15-9-1995, enhancing the amount of compensation and rate of interest, would be attracted to cases where the claims in respect of death or permanent disablement resulting from an accident caused during the course of employment, took place prior to 15-9-1995?.
2. Various High Courts in the country, while dealing with the claim for compensation under the Workmen's Compensation Act have uniformly taken the view that the relevant date for determining the rights and liabilities of the parties is the date of the accident. xx xx xx 5. Our attention has also been drawn to a judgment of the Full Bench of the Kerala High Court in United India Insurance Co. Ltd. v. Alavi, 1998 (1) Ker LT 95.(FB) wherein the Full Bench precisely considered the same question and examined both the above noted judgments. It took the view that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable on the date of the accident and No.the amount of compensation payable on account of the amendment made in 1995, which is relevant. The decision of the Full Bench of the Kerala High Court, to the extent it is in accord with the judgment of the larger Bench of this Court in Pratap Singh Narain Singh Deo v. 10 Srinivas Sabata (AIR 197.SC 22.:
1976. Lab IC 222.(supra) lays down the correct law and we approve it.
6. Having answered the question posed in the earlier part of the judgment in the negative, we shall take up this batch of special leave petitions for consideration.
7. Insofar as these special leave petitions are concerned, we find that the accident took place long time back. Compensation became payable to the workmen, as it is No.disputed that the accidents occurred during the course of employment, as per the law prior to the amendment made in 1995. Keeping in view the peculiar facts and circumstances of these cases, pettiness of the amounts involved in each of the cases and the time that has since elapsed, we are No.inclined to interfere with the impugned orders, decided on the basis of the 1995 amendment, in exercise of our jurisdiction under Art. 136 of the Constitution of India and, therefore, dismiss the special leave petitions, but, after clarifying the law, as noticed above.”
. [underlined for emphasis].
15. Rathi Menon’s case (supra), which has been followed by the Hon’ble Supreme Court in the case of M. Parameswaran Pillai (supra) was under the Railways Accidents and Untoward Incidents (Compensation) Rules, 1990 where as the present dispute is under the Workmen’s Compensation Act, 1923. Valsala K’s case (supra) is under the Workmen’s Compensation Act, 1923. The Hon’ble Supreme Court in the case of Valsala K (supra) taking note of its earlier judgment in Pratap Narin Singh Deo (supra) approved the law laid down by the Full Bench of the Kerala High Court in United India Insurance Co. Ltd. vs. Alavi, 1998 (I) Ker LT 95.(FB) as correct law in which the Kerala High Court held that it is the amount of compensation payable on the date of accident and No.the 11 amount of compensation payable on account of the amendment made in 1995.
16. In Rathi Menon’s case (supra), the Hon’ble Supreme Court has taken note of its earlier judgment in Pratap Narin Singh Deo (supra) and Valsala K. (surpa) and observed as follows:
“32. In the other two decisions referred to by the Division Bench the claims made under the Workmen’s Compensation Act, 1923 (“WC Act”. for short) were the subject-matter. In Pratap Narain Singh Deo1 the claimant workman sustained injuries and one of his arms was amputated in the course of his employment on 6-7-1968. The Commissioner under the Act passed an order on 6-5-1969 directing the employer to pay compensation together with penalty and interest for delayed payment. The employer challenged the said order before the High Court contending that penalty and interest could No.be awarded as his liability to pay had arisen only when the Commissioner passed the order and No.earlier. The High Court repelled such a contention. Against this the employer approached this Court by special leave. A four-Judge Bench of this Court held thus: (SCC p. 291, para
7) “The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did No.fall due until after the Commissioner’s order dated 6-5-1969 under Section 19.”
. On the aforesaid order this Court further held that the Commissioner under the Act was fully justified in making the order for payment of interest and penalty. In Maghar Singh v. Jashwant Singh3 the claim made under the WC Act was dealt with and the findings or the observations therein have no bearing on the question involved in this appeal”
33. The scheme of the provision under the WC Act is materially different from the scheme indicated in Chapter XIII of the Railways Act. In the former, compensation payable is fixed in the Act itself through the Schedule incorporated thereto. Section 4 of the WC Act shows that such compensation is to be linked with the monthly wages of the workman concerned. It also provides that the liability to pay compensation on the employer would arise No.when the Commissioner passes the order but on the date of sustaining the injury itself. A provision is made in Section 4-A of the WC Act that where any employer is in default of paying the compensation due within one month the Commissioner shall direct the employer to pay No.only interest but in appropriate cases a penalty ranging up to 50% of the amount payable. The said scheme canNo.be equated with the scheme in Chapter XIII of the Railways Act, as the principles involved have differences. [underlined for emphasis].
17. In view of the above, this Court is of the view that the Commissioner is No.justified in taking the wages of the deceased at Rs.8,000/- per month as per the amendment brought to Section 4 w.e.f. 31.05.2010 i.e. two days after the death of the deceased. The Commissioner should have taken the wages of the deceased at Rs.4,000/- which was prevalent on the date of the accident since amendment brought to Section 4 of the Act has no retrospective effect.
18. The Commissioner has calculated the amount of compensation at Rs.5,70,720/- taking the monthly wages at Rs.8,000/- and also accordingly calculated the interest at Rs.33,530/- on the amount of compensation for the period from 16.09.2011 to 28.06.2012. Since for the reasons stated above, the monthly wages is to be taken at Rs.4,000/-, accordingly, the amount of compensation and interest shall be reduced by 50%. Thus, the appellants are liable to pay 50% of the amount of 13 compensation as well as interest to the respondent which comes to Rs.2,85,360/- and Rs.16,765/- respectively totaling to Rs.3,02,125/-.
19. So far payment of interest on the compensation amount is concerned, the Commissioner directed opposite party No.1-Executive Engineer (Electrical) to deposit the awarded compensation and interest before him within one month from the date of his order, failing which 50% penalty with 12% interest per annum would be charged over the awarded amount from the date it falls due. Admittedly, the claimant-respondents have No.filed any appeal or cross appeal challenging the order of the Commissioner. In the fact situation, this Court does No.think it proper to interfere with the order of the Commissioner with regard to payment of interest.
20. This Court vide order dated 31.08.2012 passed in Misc. Case No.528 of 2012 directed that the compensation amount deposited by the appellants before the Commissioner in W.C. Case No.48 of 2011 shall No.be disbursed without leave of this Court.
21. In view of the above, learned Commissioner is directed to pay the compensation amount of Rs.3,02,125/- along with interest accrued thereon to the claimant-Respondents and the balance amount along with interest shall be refunded to the appellants within a period of one month from the date of production of certified copy of this judgment.
22. In the result, the appeal is allowed to the extent indicated above. ……………..………... B.N.Mahapatra, J.14 Orissa High Court, Cuttack Dated 23rd August, 2013/skj