P. Vishwanatha Shetty, J.
1. Though this appeal is posted for admission with the consent of the learned Counsel appearing for the parties, this appeal is taken up for final hearing and disposed of by this order.
2. This appeal is filed on behalf of the State by the Assistant Executive Engineer and Executive Engineer, challenging the judgment and order made by the Commissioner for Workmens' Compensation, Bijapur, (hereinafter referred to as 'the Commissioner') awarding compensation of Rs. 61,483/- with interest at 6% p.a. to the respondent on account of the death of her son one Sri Mellappa in an unfortunate incident that had taken place when he went to measure water level of Krishna River. The only submission made by Sri Singri learned Government pleader challenging the judgment passed by the Commissioner is that the said Mellappa having become a government servant, the application filed by the respondent under Section 22 of the Workmen Compensation Act of 1923 (hereinafter referred to as 'the Act') was not maintainable as the said Mellappa was not a workman within the meaning of Section 2(n) of the Act.
3. I am unable to accept the submission made by the learned Government pleader in view of the undisputed facts. It is not in dispute that the said Mellappa was appointed on daily wage basis in the year 1991 and continued in service on daily wages till the date of his death on 7th July, 1991.
Section 2(n) of the Act reads as follows:
'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is-
(i) a railway servant as defined in Section 3 of the Indian Railways Act, 1890 (9 of 1890), not permanently employed in any administrative, district or sub-divisional office of railway and not employed in any such capacity as is specified in Schedule II or
ii) employed in such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or writing; but does not include any person working in the capacity of a member of (the Armed Force of the Union); and any reference to a workman who has been injured shall, where the workman is dead includes a reference to his dependants or any of them.'
Though the said Mellappa was employed on a daily wage basis was in continuous service from the year 1981 to 7th of July, 1991 on which date he died during the course of his employment Under these circumstances, the employment of late Sri Mellappa cannot be claimed as a casual employment. Therefore, having regard to the period of employment and nature of the employment, I am of the view that the said Mellappa was a workman within the meaning of Section 2(n) of the Act. However, the Learned Government Pleader points out that since the said Mellappa had completed ten years of service on 19th June, 1991, his services having been regularised he cannot be treated as a workman and he should be treated as a Government servant. I am not impressed with this submission. The learned Government Pleader is not able to show to me from any of the documents produced by the appellants before the Commissioner during the course of the enquiry that the services of the said Mellappa was regularised. The Commissioner after appreciating the material placed before him has found that the deceased Mellappa was a workman. I do not find any infirmity in the said finding. At any event of the matter, it is also not possible to take the view that the said finding suffers from any substantial error of law which alone enables this court to interfere against the said finding recorded by the Commissioner. However at 'the hearing of the appeal, the learned Government Pleader relied upon the circular, dated 17th August, 1993, issued by the State notifying that the services of the said Mellappa was regularised by the government, with effect from 20th June, 1991.
4. I am of the view that the circular, dated 17th August, 1993, relied upon by the learned Government Pleader is of no assistance to the appellants in support of their claim that the said Mellappa had become a government servant. As stated earlier, the said Mellappa had expired on 7th July, 1991. The application for claim under Section 22 of the Act was made by the respondent on 25th July, 1992. The impugned judgment was passed by the Commissioner on 21st December, 1992. This appeal against the said judgment was filed before this court on 31st May, 1993. Therefore, it is clear that the circular, dated 17th August 1993, relied upon by the learned Government Pleader, was issued only after the passing of the judgment by the Commissioner. It is not permissible for the State to issue the said notification dated 17th August, 1993 regularising the services of said Mellappa who was dead long before the issue of the notification and also long after the passing of the judgment impugned in this appeal with a view to nullify the benefit accrued to the respondent pursuant to the impugned judgment. For the reasons best known to the Authorities an attempt is being made to deprive the respondent of her legitimate right to recover compensation for the death of her son while he was under the employment of the appellants as a Watchman. It is unfortunate that State which is expected to act in a fair and reasonable manner and act in furtherance of the object of the Act, has proceeded to issue the circular in question, after the passing of the judgment awarding compensation by the Commissioner, and also after the filing of the appeal, notifying that the services of said Mellappa was regulairsed.
In this connection, it is necessary to refer Section 4A of the Act. The said Section reads as hereunder:
'Compensation to be paid when due and penalty for default -
1) Compensation under Section 4 shall be paid as soon as it falls due
2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim
3) 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 arrears, simple interest at the rate of six percent per annum on the amount due together with, if in the opinion of the Commissioner 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.'
Sub-section (1) of Section 4A of the Act mandates the employer to pay compensation to the workman or such other claimant as soon as it falls due. In my view the compensation falls due as soon as the accident takes place causing death or disablement of the workman. Further, Sub-section (2) of Section 4A of the Act makes it obligatory on the part of the employer whenever he does not accept the liability for compensation to the extent claimed, to pay the compensation to the extent of the liability he accepts.
5. In view of what is stated above I do not find any error in the judgment and order passed by the Commissioner. Therefore, this appeal is liable to be dismissed. However, at this stage, Sri Kulkarni submits that since the respondent is deprived of the benefit of the order passed by the Commissioner awarding compensation, till now, the appellants must be directed to pay penalty as provided under sub-section (3) of Section 4A of the Act, or higher rate of interest than the one awarded by the Commissioner. He pointed out the hardship to which the respondent was put, on account of the unreasonable stand taken by the appellant and non-payment of the amount due to the respondent as per the order passed by the Commissioner till now. However, the learned Government Pleader seriously objected for awarding of either penalty or higher rate of interest as claimed by Sri Kulkarni. He submitted that the appellants bonafide believed that they have a good case on merits and have preferred this appeal and this court, while dismissing the appeal, cannot either impose penalty or award higher rate of interest.
6. Sub-section (3) of Section 4A of the Act confers power on the Commissioner to award interest at 6% per annum to a victim of the accident or his legal heirs in the event of his death, if the employer commits default in paying compensation due under the Act, within one month from the date it fell due. The same sub-section further confers power on the Commissioner to award penalty not exceeding 50% of the compensation awarded if there was no justification for the employer to cause delay in payment of the compensation due. Therefore from the scheme of the Act, it is clear that the employer should pay the compensation to the victim of the accident or his legal heirs in the event of his death, as soon as it falls due or any event of the matter not later than a month from the date if falls due. Though the language employed in sub-section (3) of Section 4A of the Act is imposition of penalty, in my view, the amount, which is required to be awarded by way of penalty, is only in the nature of an additional compensation to be awarded to the victim or his legal heirs in the event of his death, for the delayed payment of the compensation which the employer was required to pay.
7. But the question that would arise for consideration in this appeal is whether the power to impose penalty conferred on the Commissioner under sub-section (3) of Section 4A can be exercised by this court for the undue delay in settlement of the claim after an order is made I am of the view that the answer must be in the affirmative for the reasons which I shall state hereunder.
8. As stated earlier, the Act is a beneficial legislation, intended to protect the victims of the accident or their legal heirs, who sustain injuries in the course of their employment or they die on account of the accident. Further, Section 4A. referred to above, makes it imperative on the employer to pay the compensation fixed under the Act as soon as it falls due and at any event of the matter, not later than one month from the day it falls due, without there being liability to pay interest, Sub-section (3) of Section 4A of the Act. as stated earlier provides that if the Commissioner is of the opinion that there was no justification for the delay in making the payment, he can award penalty. Under these circumstances, if the Commissioner has the power to impose penalty, if there was delay on the part of the employer in making payment of the compensation due to the victim or his legal heir, as the case may be, and there is no Justification for the said delay, I do not find any justifiable ground not to impose penalty for the unjustifiable delay caused on the part of the employer for not satisfying the order of the Commissioner directing payment of compensation by the employer. Merely because at the stage of passing an order fixing the liability of the employer, interest has been awarded cannot be a ground to deprive the victim of the accident or his legal heirs, as the case may be, to claim penalty for the unjustifiable delay caused in satisfying the order of the Commissioner and paying the amount ordered to be paid by the Commissioner. The rate of interest fixed under the Act is only 6%. Under these circumstances, having regard to the object of the legislation and the status of the beneficiaries of the legislation, it is fair and reasonable to take the view that the power to award penalty for unjustifiable delay in making the payment after the order passed by the Commissioner, is with the Commissioner, and the Commissioner can make appropriate orders in that behalf after hearing both the employer and the claimant. Under the Act, no such power is specifically conferred on the appellate Court. But, if the employer, without any justification, after the order is made by the Commissioner for payment of the compensation to the victim or his legal heirs, fails to make the payment or obtains an interim order thereby preventing the claimant from realising the benefits of the order of the Commissioner and ultimately if he fails in the appeal, preferred, I am of the view that this Court, while dismissing the appeal, will be fully justified in making appropriate orders to pay either higher rate of interest than the one awarded by the Commissioner or such reasonable amount by way of compensation to the claimant for the claimant being put to hardship or injury and not able to realise the fruits of the order of the Commissioner immediately. The principle underlying sub-section (3) of Section 4A of the Act in the matter of power conferred on the Commissioner, could be taken as a guidance for awarding the higher rate of interest or compensation. However, whether, in a given case, higher rate of interest or compensation should be awarded to the claimant in an appeal when the employer-appellant fails in the appeal, is a. matter on which the appellate Court, having regard to the facts and circumstances of each and the conduct of the appellant, the diligence and the bonafides shown by the appellant and his financial position, has to decide. In so far as the facts of the present case is concerned, it is necessary to point out the lack of concern on the part of the Authorities of the Slate to respond to the hardship faced by the respondent, who is a very poor woman and who has lost her son in the accident in question. The judgment under appeal was passed by the Commissioner on 21st of December 1992. The appeal was preferred by filing an application praying to condone the delay on 31st of May 1993 and the amount was deposited before the Commissioner only on 25th of June 1993. There is absolutely no explanation offered for the inordinate delay in depositing the amount before the Commissioner even after the passing of the impugned judgment by the Commissioner on 21st of December 1992. Further, am of the view that the loss of dependency sustained by the respondent has to be compensated by either awarding higher rate of interest or some reasonable amount by way of compensation not exceeding 50% of the amount awarded as compensation by way of penalty. In the instant case, if the interest to be awarded to the respondent on the compensation awarded is calculated at 12% per annum from 21st of January 1993 i.e., one month after the order passed by the Commissioner, till this date, it would be around Rs. 29,000/-. Since the interest at the rate of 6% has -already been awarded, if the interest is awarded at 12%, an additional amount the respondent would be getting, will be around Rs. 14,500/-. Further, in the circumstances of the case, I am also of the view that if the levy of penalty or award of compensation for the delayed payment is calculated at the rate of 20% of the compensation awarded, it will be around Rs. 12,000/- Having regard to the facts and circumstances of the case, I am of the view that interest of justice would be met if the appellants are directed to pay interest at 12% as against 6% awarded by the Commissioner, from 21st of January 1993 till the date of payment.
9. The respondent is also entitled for the costs of this appeal payable by the appellants, which is fixed at Rs. 2,000/-.
10. The appellants are given five weeks' time from today to deposit the balance of the compensation awarded and also the costs. The Commissioner shall take steps to disburse the amount to the respondent, which has already been deposited by the appellants, in accordance with law.
11. The appeal is dismissed in terms stated above.