S.C. Parija, J.
1. This is an appeal filed by the principal employer under Section 30 of the Workmen's Compensation Act, 1923, (for short W.C. Act) challenging the judgment/award dated 29.6.2005, passed by the Commissioner for Workmen's Compensation, Cuttack, in W.C. Case No. 501-D of 2000, awarding an amount of Rs. 4,50,000/- as compensation together with interest @ 10% per annum to be deposited within 30 days, failing which he appellants will be liable for penalty @ 50% of the awarded amount appellants will
The two questions which falls for consideration in this appeal are:
(a) Whether the law as it stood on the date of the accident would be applicable for the purpose the computation of the compensation amount under the W.C. Act or the subsequent amended law, as it existed on the date of adjudication of the claim by the Commissioner?
(b) Whether the principal employer is liable to pay interest on in, compensation amount awarded and if so, whether the compensation on amount falls due on the happening of the event of accident or when the same is determined, after due adjudication, and award is passed, which would be the starting point for levy of interest?
2. The factual matrix as pleaded by the claimants before the learned Commissioner is that one Binod Kumar Barik, aged about 18 years working as a labourer under one Dillip Bastia, respondent No. 2, for completion of electrical the of the present appellants. On 20.3.2000 at about 5.00 p.m. near the village Jaishola the deceased along with other workmen was engaged by he said respondent No. 2 for reinstallation and restoration of the damage electrical line caused by Super Cyclone. The deceased, Binod Kumar Barik was engaged for electrical restoration work at the top of a cemented poll with the help of the workmen, who were helping him from the ground. At that moment al t electrical pole collapsed as a result of which the workman, Binod Kumar fell down with the pole over him. Due to such accident, the workman Binod Kumar Barik sustained serious bleeding injuries on his head and other limbs of his body. The people nearby along with sub-contractor, respondent No 2 and hat workmen present, immediately carried the injured workman to Raghunathpur Government Hospital where the doctor declare injured workman to as dead. The post-mortem was conducted on 21.3.2000 at the District Medical, Jagatsinghpur. It was pleaded by the claimants that the deceased workman at the time of the accident was working in the premises of the time of the accident was working in the premises of appellants and was engaged in the said work by Dillip Bastia, who was a sub contractor under a registered electrical contractor, whose details were known who-was; executing the work of the principal employer, i.e. the present appellants, for their trade and business purpose Accordingly, the claimant, respondent No. 1, claimed compensation for the death of his son caused to an accident arising out of and in course of his employment under the appellants and respondent No. 2 as weft as the unknown registered electrical contractor.
3. The immediate employer of the deceased-workman, Dillip Bastia respondent NO. 1, in spite of notice, did not appear or file written Statement before the learned Commissioner. The present appellants entered appearance and filed their written statement denying the averments made in the claim petition and that the deceased workman was Commissioner. The present appellants entered appearance and filed their written statement denying the averments made in the claim business workman was never, engaged by them for their
4. On the pleadings of the parties, learned Commissioner framed the following issues:
1. Whether the deceased Binod Kumar Barik was a workman under the Provision of the Workmen's Compensation Act?
2. Whether the accident arose out of and in course of employment of the deceased under the Opp. Parties?
3. Whether the applicant is entitled to get compensation as has been claimed by him or any part thereof?
4. Whether the Opp. parties are jointly or separately liable to pay the compensation amount, if so, by whom it would be payable?
5. Whether the Opp. parties are liable to pay interest and penalty as per Sub-section 1 to 3 of Section 4(A) of W.C. Act of 1923?
5. Willi regard to Issue No. 1 and 2, learned Commissioner on consideration of the materials on record, including documentary and oral evidence adduced by the parties, came to hold that the deceased was a workman within meaning of the W.C. Act and died due to serious injuries sustained by him in an accident which arose out of and in course of his employment under the present appellants and respondent No. 2.
6. With regard to Issue No. 3, learned Commissioner, on considering the evidence of P.W. 1 and P.W. 2 and in absence of any material to the contrary, came to hold that the monthly wage of the deceased-workman was Rs. 4,000/-and accordingly? proceeded to compute the compensation amount at Rs. 4,50,440/-.
7. With regard to Issue No. 4, the learned Commissioner relying on the provisions of Section 12(1) of the W.C. Act, came to hold that Dillip Bastia, the sub-contractor, respondent No. 1 had employed the deceased as a labourer for installation and restoration of electrical works which belongs to the present appellants and therefore they being the principal employer are liable to pay the awarded compensation amount to the claimant.
8. With regard to Issue No. 5, learned Commissioner proceeded to hold that the present appellants, as a principal employer are liable to pay compensation amount of Rs. 4,50,440/-- along with interest @10% per annum from the date of accident i.e. 20.3.2000, till the date of deposit, failing which, they shall be liable to pay the penalty @50% of the awarded amount.
9. Sri B.K. Pattnaik, learned Counsel for the appellants submits that admittedly the accident having occurred on 20.3.2000, the computation of the compensation amount by the learned Commissioner should have been on the basis of the law as it existed at the time of such accident and not as per the amended law, as it stood on the date of adjudication of the claim by the learned Commissioner. In this regard, the attention of this Court is drawn to the provisions of Section 4 of the W.C. Act as it stood on the date of accident i.e. 20.3.2000, and Explanation-II, thereof provided that where' monthly wages of a workman exceed Rs. 2,000/-, his monthly wages for the purposes of Clause (a) and Clause (b) of Section 4 shall be deemed to be Rs. 2,000/- only. This provision contained in Explanation-II to Section 4, was amended by Act 46 of 2000 and instead of 'Rs. 2,000/-', 'Rs. 4,000/-' was substituted, with effect from 8.12.2000. Accordingly, it is submitted by the learned Counsel mat the computation of compensation amount by the learned Commissioner in the impugned award on the basis of the monthly wages of the deceased workman at Rs. 4,000/- is erroneous and misconceived and the same should have been computed on the basis of the monthly wages of the deceased-workman at Rs. 2,000/- per month.
10. In support of his contention, learned Counsel for the appellant has relied on a four Judge Bench decision of the Supreme Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. 1976 (32) FLR 92 (sc) wherein the Hon'ble Court held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident, which arose out of and in course of his employment. Thus, the relevant date of determination of the rate of compensation, is the date of the accident and not the date of adjudication of the claim.
11. In a subsequent decision in the case of Kerala Slate Electricity Board and Anr. v. Valsala K. and Anr. 1999 (83) FLR 508 (SC) the Supreme Court took notice of the Full Bench decision of Kerala High Court in the case of United India Insurance Co. Ltd. v. Alavi 1998 (80) FLR 72 (Ker. F.B.) wherein the Full Bench 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 W.C. Act and it is the amount of compensation payable on the date of the accident and not the amount of compensation payable on the account of the subsequent amendment made to the W.C. Act, which is relevant. The Supreme Court while approving the said decision of the Full Bench of the Kerala High Court affirmed its earlier decision in Pratap Narayan Singh Deo's case (supra).
12. A similar question arose for determination before the Division Bench of the Calcutta High Court in the case of Nezv India Insurance Co. Ltd. v. Ullashini Bhowmick and Ors. 1999 (2) TAC 469 (Cal.) wherein it was held that the claim for compensation in respect of death or injury, arising out of and in course of employment emanate from Section 3(1), Section 4(1) and Section 4-A of the W.C. Act. Such entitlement to claim compensation gets crystallize the moment the event of injury happens. The corresponding liability of the employer to make good such claim also accordingly springs forth simultaneously under the W.C. Act. Concurring with the aforementioned Full Bench decision of the Kerala High Court reported in 1998 (1) K L.T. 951 (FB) : 1998 (2) TAC 330 (Ker)(FB) and following the principles of law laid down by the Supreme Court in Pratap Narayan Singh Deo's case,1976 (32) FLR 92 (SC) the Division Bench of Calcutta High Court held that the provisions of the Amending Act are prospective in nature, in so far as the determination of the quantum of compensation was concerned, and that the enhanced compensation would be available only to such claims where the death or injury occurs in an accident, arising out of and in course of employment after the date of such amendment.
13. Reference in this regard is also made to the decision of this Court in the case of Nezv India Assurance Co. Ltd. v. Kartika Jena and Anr. 89 (2000) CLT 608 wherein this Court while referring to the Division Bench decision of the Calcutta High Court reported in 1999 (2) TAC 469 (Cal) (supra), came to hold that the Law as it stood on the date of the accident would be applicable for the purpose of computation of the compensation amount.
14. Sri Pattnaik, Teamed Counsel for the appellant has also questioned the legality and propriety of the impugned award, imposing interest @ 10% per annum on the awarded amount, payable from the date of the accident till deposit and penalty @ 50% of the awarded amount, in case of default. In this regard, it is submitted that admittedly as the appellants are not the immediate employer of the deceased workman and there being no question of any default on their part to pay the compensation amount due as provided under Section 4-A (3)(a) under the W.C. Act, no interest could have been. awarded as against the present Court while referring to the provisions of Section 4-A(3) of the W.C. Art, no penalty could have been imposed on the present appellants, who are the principal employer witheout giving them a reasonable opportunity to show cause and without proper adjudication and determination in an appropriate proceesing.
15. Interest is payable under Section 4-A(3) of the W.C. Act if there is default in paying the compensation amount due under the said Act, within one month from the date it fall due. In view of the provisions of Section 12(1) of the W.C. Act, the principal employer will be liale to pay the interest imposed on the compensation amount. The question is as to what would be the starting point for levy of accident or when the same is awarded, after due adjudication
16. The aqestion came up for consideration before the Supreme Court in the case of National Insurance Co. Ltd. v. Mubasir Amed and Ors. : 2007 (112) FLR 1033 (SC). The Supreme Court while referring to the prvisions of Section 4-A(3) of the W. C. Act, came to hold as under:
XX XX XX The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it become due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some medical Petitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of Sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent has not used the expression 'from the date of accident'. Unless there is an adjudication, the question of an adjudication, the question of an amount falling due does not arise.
17. Sri D.K. Mohapatra, learned Counsel for the claimant has made a feeble attempt to stultify the impugned aware, with regard to the quantum of compensation awared on the basis of the amended provisions of the W.C. Act, as it stood on the date of adjudication of the amended by relying on a decision of the supreme Court in the case of Rathi Menon v. Union of Indiaa, 2007 (112) Flr 1003 (SC), has observed that nonetheless in appropriate cases, the principle of taking advantage of the made in the said decision is of no assistance to the claimant in view of the law laid down in the aforementioned judicial pronouncements.
18. Applying the principles of law as detailed above to the fatcs of present case, the inrresistable conclusion is that the learned Commissioner erred in computing the compensation amount and passing the impugned award on the basis of the amended provision of the W. C. Act, which came into force with effect from 8.12.2000, which is not permissible in law. The amount of compensation should have been computed on the basis of the monthly wages of the deceased workman at Rs. 2,000/- per month, as provided under Explanation II to Section 4 of the W.C Act/as it existed on the date of accident i.e. 20.3.2000. Accordingly,' the awarded compensation amount is modified and reduced to Rs. 2,25,220/-.
19. As regard imposition of interest on the awarded compensation amount, as per Section 4-A(3)(a) of the W.C. Act, the same becomes payable only when the claim is adjudicated and the amount of compensation is determined and the award is passed. Accordingly, the claimant is entitled to interest only from the date of passing of the impugned award till deposit of the compensation amount with the learned Commissioner.
So far as the imposition of penalty in case of default, in the impugned award, the same can only be imposed after giving reasonable opportunity to the employer to show cause why such penalty should not be imposed, as required under Section 4-A(3)(b) of the W.C. Act. Penalty will not ordinarily be imposed unless the party obliged to perform a statutory obligation is guilty of conduct contumacious or dishonest,, or acted in conscious disregard of its obligation. Penalty will not be imposed merely because it is lawful to do so. In the present case, in view of the fact that the entire awarded amount alongwith interest, as per the impugned award has already been deposited by the appellants with the learned Commissioner since 30.8.2005, the penalty imposed is waived.
20. The impugned award is accordingly modified to the extent indicated above and the learned Commissioner is directed to disburse the modified compensation amount of Rs. 2,25,220/- (Rupees two lakhs twenty five thousand two hundred twenty) alongwith interest @ 10% per annum calculated from the date of the award till the deposit of the modified compensation amount and bank interest accrued thereon to the claimant. The balance deposited amount alongwith accrued interest shall be refunded to the appellants.
The F.A.O. is accordingly allowed to the extent indicated above.