J.N. Bhatt, J.
1. By this appeal, under Section 30 of the Workmen's Compensation Act, 1923 ('Act for short, hereinafter), the appellants, who are heirs of the deceased victim of employment injuries, have challenged the judgment and award passed by the learned Commissioner for Workmen's Compensation ('Commissioner' for short, hereinafter), at Nadiad, on 5.5.1981, in Workmen's Compensation Case No. 25 of 1978. In order to appreciate the merits of this appeal and challenge against it, it would be necessary to set out matehal and relevant facts giving rise to the present appeal.
2. The present appellants are the original applicants and the present respondent is the original opponent. They are, hereinafter, referred to as the 'applicants' and 'opponent' for be sake of convenience and brevity.
3. The applicants, who are the parents of the deceased victim of an employment accident, claimed compensation of Rs. 18,000/-, stating that their son died on account of injuries sustained by him out of and in the course of employment with the opponent-employer. The applicants, inter alia, contended that their deceased son was working as a labourer with opponent at the monthly salary of Rs. 195/-.Thus, the deceased was working as a 'workman' with opponent. Opponent was working as a contractor. The deceased was working as a labourer with opponent along with other labourers in execution of the contract work of the opponent which was going on near village Kuni, in Thasara Taluka, District kheda. The labourers were engaged for digging mud and earth. The deceased was also en-aged in the same work. The unfortunate accident occurred on 14.10.1978, between 6 to 9.30 a.m. The deceased was engaged in digging earth at the relevant point of time. On the day of the accident, on account of sliding of heap of earth, the deceased was crushed under he same and he sustained serious injuries to which he succumbed on the spot. Deceased was the only son of his parents and he was the only bread-winner. The applicants served the opponent with a notice. Opponent replied the notice but did not comply with it. With the result, the applicants had to knock the door of justice for getting compensation for the un-fortunate demise of their son in an employment accident by invoking the provisions of Section 3 of the Act.
4. Opponent appeared and resisted the application for compensation. Opponent, inter alia, denied that the deceased was a workman and that the deceased was the only son and the only bread-winner in the family. The opponent also contended that the deceased was doing employment not with the opponent but was doing the work which was going on the site on the day of the accident was of one partnership firm M/s. Rajanikant J. Shah ('the firm' for short, hereinafter). Therefore, the opponent denied the liability for payment of compensation.
5. In view of the facts and circumstances and pleadings of the parties, issues came to be settled, at Exh. 12.
6. The learned Commissioner, at Nadiad, on appreciation of the evidence on record, was pleased to dismiss the application for compensation, on 5.5.1981. It appears from the impugned award that the learned Commissioner dismissed the application for compensate on as it was filed only against one of the partners and not against all the partners and the firm. He was also pleased to hold that though deceased Kasha was a workman, opponent, being only one partner of the firm, is not alone liable for the payment of compensation. In other words, his conclusion is that the application for compensation was not in proper and legal form.
7. Being aggrieved by the said judgment and award, the present applicants, who are the unfortunate parents of deceased Kasha, have now come up before this Court under Section 10 of the Act challenging its validity and legality.
8. It would be interesting to note certain material facts emerging from the record of the present case.
9. The applicants filed the application for compensation under Section 3 of the Act against the opponent, Rajanikant J. Shah. The written statement was filed by sole opponent Rajnikant J. Shah, at Exh. 11, wherein one of the contentions was that the partnership firm known as 'M/s. Rajanikant J. Shah' is a necessary party and the work at site was of the partnership firm and, therefore, the application for compensation, without joining the firm is not maintainable. The written statement was filed on 2.1.1980. After filing of the written statement, the applicants preferred an application, Exh. 13, on 22.2.1980, requesting the learned Commissioner to direct the opponent to disclose the name of the partners of the partnership firm. The learned Commissioner was pleased to pass order below that application that the other side should reply or comply. Pursuant to the said order, the opponent disclosed the names of the partners of the firm, which arc seen below application Exh. 13, Thereafter the applicants preferred an application, at Exh. 17, on 18.7.1980 requesting the learned Commissioner to permit them to implead the partnership firm and the partners as opponents in the said application for compensation. Unfortunately, without there being any order below Exh. 17, the partnership firm and all the partners of the said firm were imp leaded as opponents in the main application for compensation, on 18.7.1980 Later on, the opponent, Rajanikant J. Shah, preferred an application, at Exh, 48, of 17.2.1981, requesting the learned Commissioner to delete the names of the partners and the partnership firm from the main application for compensation, as they came to be impleaded without following proper procedure and without obtaining the order of the learned Commissioner. Unfortunately, the learned Commissioner was pleased to allow this application. Thereafter, in order to see that there is not any technical defect and to put the things in right order, the applicants gave an application, on 20.2.1981, at Exh. 52, whereby the learned Commissioner was requested to permit them to implead partnership firm and other partners and to proceed the matter against them. Again, after hearing the parties, the learned Commissioner was pleased to reject that application, on 6.4.1981. It appears front the order, below Exh, 52, that it came to be rejected on hyper technical grounds. Be as is may. The factual aspect is highlighted so as to appreciate the approach of the learned Commissioner, which is not only hyper technical and pedantic but highly illegal.
10. The learned Counsel for the appellants/original applicants has contended that the application under Section 3 of the Act for compensation is maintainable even against one partner of the firm. This contention is seriously opposed by the learned Counsel for the respondent original opponent. As observed hereinbefore, the learned Commissioner has failed to appreciate that the strict principles of evidence and technical rules of Civil Procedure Code ('Code' for short hereinafter) arc not strictly applicable to the courts dealing with the matters under the Act. Strictly speaking, a court dealing with the proceedings of the Act is not a court under the Code, which is bound to follow the said principles. The court dealing with civil disputes and the Commissioner for compensator under the Act are two district forums. The Commissioner under the Act is invested with powers and also given higher duties and responsibilities under the Act. Unlike a civil Judge under the Act, he is also required to 'suo motu' initiate inquiry about the factum of accident and resultant injuries. So the position of the Commissioner under the Act is different, who has to sec that eligible victims of employment injuries are awarded proper compensation under the Act. The observations of this Court in the following two judgments are also verypertinent:
(1) Chiman Surakhia Vasva v. Ahmed Musa Ustad 1987 ACJ 161 (Gujarat):II (1986) ACC 9.
(2) Natwarsinh A. Chauhan v. Niranjanbhai K. Shah : (1993)IIILLJ611Guj .
This court has observed in the aforesaid decisions that Section 22(3) of the Act provides that if the applicant is illiterate or for any other reason is unable to furnish the required information in writing, the application shall, if the applicant so desires, be prepared under the direction of the Commissioner. In case of procedural defect, the Commissioner would have been able to cure the defect himself by exercising his powers under the Act. Unfortunately, the learned Commissioner dismissed the rightful claim on a very hyper technical ground. It appears that the learned Commissioner even failed to appreciate the underlying purport in the provisions of Order 1, Rule 9 of the Code, which provides that even no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parlies actually before it. Even in absence of any application for joining other partners of the firm, the learned Commissioner could have decided the merits of the matter, between the original applicants and the original opponent. Though, as observed hereinbefore, strict rules of the Code arc not applicable and higher duty is cast on the Commissioner under the Act, he dismissed the application for compensation on such a technical ground.
11. It is an admitted fact that deceased had sustained serious injuries and he succumbed to the same. He was working as a labourer. So the factum of death is not in controversy. The learned Commissioner has also observed that the deceased Kasna was a 'workman' as defined under Section 2(1)(n) of the Act. However, compensation was refused to the applicants, who are the parents, on the ground that the opponent alone was not the employer. This finding of the learned Commissioner is not only hyper technical but totally illegal. There is a special provision in the Act, defining 'employer'. The definition of 'employer' given in Section 2(l)(e) is very wide. It includes any body of persons whether incorporated or not and any managing agent of an employer and the legal representative of a deceased employer. The definition of the word 'employer' would indicate that it is very broad and wide. As such, the definition of the word 'employer' is an inclusive definition and, therefore, the enumerated persons only do not constitute the whole body of persons who may be considered to be employers. The learned Commissioner also found that opponent, Rajnikant J. Shah, was one of the partners of the firm. However, since the firm was not impleaded as a party, the application for compensation came to be rejected. In view of the definition of 'employer' under Section 2(l)(c) of the Act, even the managing agent can be sued for compensation. An application for compensation under the Act can be filed against a managing person. 'Managing agent' means any person appointed or acting as the representative of another for the purpose of carrying on such other person's trade or business. Opponent, Rajanikant J. Shah, is one of the partners of the partnership firm. He is not a subordinate employee. This aspect was not at all considered by the learned Commissioner.
12. Apart from that, in so far as third party is concerned, a partner is always an agent of the firm, for the purpose of business of the firm, as provided in Section 18 of the Indian Partnership Act, 1932. Of course, there is evidence to show that the opponent, Rajanikant J. Shah, was one of the partners of the firm M/s. Rajnikant J. Shah. So factually he was working as an agent of the firm. Again, in view of the provisions of Section 18 of the Indian Partnership Act, 1932, a 'partner' is an 'agent' of the firm for the purpose of business of the firm, and even on the analogy of the provisions of Section 43 of the Indian Contract Act, 1872, a partner is liable and, therefore, application for compensation under Section 3 of the Act was maintainable. In Parameswar Lal Shroff v. Syam Sunder Baity 1954(1) LLJ 885, the Calcutta High Court held that an application for compensation by a workman, employed by a partnership firm, against one of the partners is legally maintainable.
13. In the result, in view of the specific provision of Section 2(l)(e) of the Act, provision of Section 18 of the Indian Partnership Act, 1932, and the provisions of Section 43 of the Indian Contract Act, 1872, together with the underlying purport and purpose of the provisions of Order 1, Rule 9 of the Code, this Court has not any hesitation, whatsoever, in holding that an application for compensation by a workman, under Section 3 of the Act, is maintainable against one of the partners or managing person, of a partnership firm, Therefore, the finding of the learned Commissioner on this point is required to be quashed.
14. Next it brings into the sharp focus the question of amount of compensation to be awarded to the parents of the deceased victim. There is clear evidence on record to show that the deceased Kasna was a workman and he was doing labour work at is also found by the learned Commissioner that the deceased, as such, was a workman and there is clear and consistent evidence to show that the deceased had sustained employment injuries which resulted in his unfortunate demise. Thus, it is borne out, explicitly, from the record that the deceased Kasna had died on account of accidental employment injuries sustained by him out of and in the course of employment with opponent. Therefore, the applicants, who are the parents, arc entitled to maintain the application for compensation under Section 3 of the Act against the opponent.
15. What should be the qualification of compensation? In this behalf, it may be noted that there is evidence on record to show that deceased Kasna, who was working as a labourer at the relevant time, was earning Rs. 6.50 per day. It is the case of the applicants that the deceased was earning Rs. 195/- per month as a labourer. The deceased was a 'workman' and the opponent was the 'employer'. Therefore, the parents of the deceased are qualified to claim compensation under the provisions of the Act on account of death of their son arising out of employment injuries. The learned Commissioner has, alternatively, held that the parents of the deceased would be entitled to Rs. 13,500/-. This finding of the learned Commissioner is also erroneous. In fact, in view of the relevant entry in Schedule IV and Section 4 of the Act, as the deceased was earning Rs. 195/- per month, the parents of the deceased would be entitled to a sum of Rs. 16,800/- for the premature death of their son. There is a clear provision that heirs of the person who became the victim of employment accidental death, who was earning Rs. 195/- p.m., would be entitled to a sum of Rs. 16.800/- as compensation. Therefore the applicants, who are the parents of the deceased, are entitled to Rs. 16,800/- by way of compensation. Now the question that falls for consideration is as to whether the applicants would be entitled to penalty as provided is Section 4-A(3) of the Act. Section 4-A(3) provides that where any employer is in default in paying the compensation under the Act within one month from the date of the accident, or when if fell due, the Commissioner is empowered, in addition to the amount of arrears, to award simple interest at the rate of 6 per cent per annum on the amount due together with, if in the opinion of the Commissioner there was no justification for delay, a further sum not exceeding 50 per cent of the said amount as penally. Therefore, it becomes very clear from the provisions of Section 4-A(3) of the Act that the Commissioner is empowered to award interest at the rate of 6 per cent per annum on the amount of compensation and an amount, not exceeding 50 per cent of the amount of compensation, as penalty. It is also very clear from the factual background enumerated hereinbefore that the opponent-employer not only delayed the payment of compensation but also went on resorting to and applying tactics for defeating the rightful claim of the applicants. There was no justification to withhold the due amount of compensation under the Act when it fell due. Therefore, this is a fit case to award 50 per cent of the amount of the compensation by way of penalty. Under these circumstances, applicants would be entitled to Rs. 8,400/- by way of penalty. The applicants arc also entitled to interest at the rate of 6 per cent per annum from the date of accident till! realisation, on the amount of Rs. 16,800/-. In the opinion of this Court, the interest should be awarded from the date of the accident and not from the date of application. From a plair reading of Section 4-A(3) of the Act, it is clear that interest should be awarded from the date when the amount became payable of fell due. That means, it became due and fell due or the very day on which the deceased succumbed to the injuries. The period of one month given in Section 4-A(3) of the Act is by way of grace so that the employer can arrange for making the necessary deposits before the learned Commissioner. If the amount is not paid within a period of one month from the date on which it became payable or fell due, the Commissioner can grant interest from the date of the accident. Therefore, the applicants are entitled to interest al the rate of 6 per cent per annum from the date of the accident till realisation. In fact, unfortunately, this Court is helpless in awarding the rate of interest more than 6 per cent because there is specific provision in Section 4-A(3) of the Act that the maximum rate of interest should be 6 per cent per annum. This court is of the view that substantial higher rate of interest should be awarded in view of the prevalent high rate of interest of nationalised banks and other Government financial institutions but for the inhibition incorporated in Section 4-A(3) of the Act, prescribing the maximum rate of interest at 6 per cent per annum. Be as it may. It is for the concerned legislature to reconsider or revise the poor rate of interest in Section 4-A(3) of the Act. This court is inclined to awan full and maximum rate of interest, which is fixed at 6 per cent per annum, from the date of the accident, i.e., 14.10.1978, till realisation.
16. No other contention is raised.
17. In the result, the judgment and award of the learned Commissioner is required to be quashed by allowing this appeal with costs. The original opponent/respondent shall pa a sum of Rs. 16,800/- by way of compensation to the original applicants/appellants, who are the parents of the deceased, with running interest al the rate of 6 percent per annum front the date of the accident, i.e., 14.10.1978, till realisation. The opponent / respondent shall also pay a sum of Rs. 8,400/- by way of penalty. Therefore, in aggregate, the respondent original opponent shall pay a sum of Rs. 25,200/- with costs throughout. The opponent respondent shall deposit the amount of compensation awarded together with penalty interest and costs, within a period of eight weeks from today before the learned Commissioner, at Nadiad.
18. Before parting with this judgment, it may be mentioned that in order to see that the amount of compensation is not frittered away and also to sec that the object and the purpose for which the amount of compensation is awarded under the Act is sub served, the following directions for disbursing and depositing the amount are given:
(i). An amount of Rs. 30,000/- shall be invested in the joint names of the original applicants in fixed deposit receipt of any nationalised bank or any national security for a period not less than six years and the applicants will be entitled to the interest which shall accrue due thereon periodically ,
(ii)The applicants shall not be entitled to create any charge or encumbrance on the said amount deposited, without the prior permission of the Commissioner for Workmen's Compensation, at Nadiad:
(iii) The remaining amount shall be paid to original applicant No. 1, the father of the deceased, for and on behalf of the applicants, by account payee cheque.
The appeal stands allowed accordingly with costs throughout.