Full Judgment
B.R. Arora, J.
1. This special appeal is directed against the judgment dated May 22, 1995, passed by the learned Single Judge, by which the learned Single Judge dismissed the miscellaneous appeal filed by the appellants and maintained the order dated March 2, 1995 passed by the Workmen's Compensation Commissioner, Banswara, by which the Workmen's Compensation Commissioner awarded a sum of Rs. 67,780/- as compensation, imposed the penalty of Rs. 5000/- and awarded the cost of Rs. 100/- alongwith interest @ 6% per anum on the amount of compensation with effect from September 6, 1989.
2. Ratan Singh s/o Shri Gulab Singh-an employee in the Office of the Executive Engineer, Irrigation Division, Banswara, on September 6, 1991 died at Himmata Ki Ghati by electrocution as he was, at that time, working as Pump Driver on the Lift Canal. Smt. Anop Kanwar (mother of the deceased), Chandraveer Singh (son of the deceased) and Smt. Gaind Kanwar (widow of the deceased) filed the claim petition for the award of compensation of Rs. 67,776/-. The claimants, in support of their claim, examined Chandraveer Singh and Lal Singh. The defendants, placed on record the affidavit of Mr. Adesh Kumar Gupta. During the pendency of the claim petition, Smt. Gaind Kanwar (widow of deceased Ratan Singh) breathed her last. The learned Workmen Compensation Commissioner, after trial, awarded a sum of Rs. 67,780/- as compensation, imposed the penalty of Rs. 5000/- and awarded the cost of Rs. 100/- to the claimants alongwith interest @ 6% per annum by his award dated March 2, 1995, which was challenged by the appellants before the learned Single Judge and the learned Single Judge dismissed the miscellaneous appeal filed by the appellants vide judgment dated May 22, 1995 and it is against this judgment that the appellants have filed this appeal.
3. It is contended by the learned counsel for the appellants that the death of Ratan Singh took place not in the course of his employment and, therefore, the appellants are not liable for making payment of the compensation etc., and the Workmen Compensation Commissioner committed an error in awarding compensation in favour of the claimants. It has also been contended by the learned counsel for the appellants that while determining the amount of compensation the learned Workmen Compensation Commissioner has not determined it as required under Section 4 of the Workmen's Compensation Act (for short, 'the Act'). An amount of 40% of the monthly wages of the workman multiplied by the relevant factor can be applied and not the amount equal to 50% of the wages can be awarded by the Workmen Compensation Commissioner. Learned counsel for the respondents, on the other hand, has supported the order passed by the Courts below.
4. We have considered the submissions made by the learned counsel for the parties, perused the judgment passed by the learned Single Judge and the award passed by the learned Workmen Compensation Commissioner, and, also gone through the statements of the witnesses, the copies of which have been produced before us by the learned counsel for the appellants.
5. Chandraveer Singh has stated that his father (Ratan Singh) was working in the Irrigation Department, Banswara as the Pump Driver and his duty was at Himmata Ki Ghati Lift Canal and while he was on duty, due to electrocution, his father died. In the cross-examination, not even a single question was asked to him by the appellants that deceased Ratan Singh was not on duty at the relevant time when he died and his death did not occur during the course of his employment. Lal Singh s/o Amar Singh, whose statement was also recorded in these proceedings, has stated that deceased Ratan Singh was his brother-in-law andhe was working in the Irrigation Division, Banswara as Pump Driver and during his course of employment he died due to electrocution. He was posted at Himmata Ki Ghati Lift Canal. No question was asked even to this witness in the cross-examination that the death of deceased Ratan Singh did not take place during the course of his employment and his place of posting has not been challenged.
6. From the statements of Chandraveer Singh and Lal Singh, it has been established that the death of Ratan Singh occurred during the course of his employment. He was working, on the relevant day, as the Pump Driver at Himmata Ki Ghati Lift Canal and it was on account of the electric current flowing in the motor that Ratan Singh died on September 6, 1991. From the claimant's evidence it has, therefore, been established that the death of Ratan Singh took place during his employment. The contention, raised by the learned counsel for the appellants, is therefore, devoid of any force.
7. The next contention, raised by the learned counsel for the appellants, is that the compensation has not been properly determined by the learned Workmen Compensation Commissioner as per the provisions of Section 4 of the Act. Section 4 of the Act provides that where the death results, from the injury, an amount equal to 40% of the monthly wages of the deceased workman multiplied by the relevant factor, can be awarded. In the present case, deceased Ratan Singh, as per the claimants' case itself, was getting Rs. 2800/- per month as wages and the learned Workmen Compensation Commissioner computed his income as Rs. 2,678/-per month and as per Explanation (2) to Section 4, the monthly wages of the workman shall be deemed to be Rs. 1,000/- per month only. The deceased was aged about 55 years and as per Schedule IV annexed to the Act, the factor for working out the lump sum compensation applicable in the case of the claimants is 135.56.If we calculate 40% of the wages of the deceased, as per Explanation (2) to Section 4, it comes to Rs. 400 and if we multiply it with the factor 135.56 as per schedule then the amount comes to Rs. 54,224/-. The learned Workmen Compensation Commissioner, therefore, wrongly determined the compensation amounting to Rs. 67,780/-. The amount of compensation, therefore, requires modification and the claimants are entitled for a sum of Rs. 54,224/- as per the provisions of Section 4 of the Act.
8. The next question which requires consideration, is: whether the learned Workmen Compensation Commissioner was justified in imposing the penalty of Rs. 5,000/- and in awarding the interest @ 6% per annum According to Section 4 of the Act, the penalty can be imposed to the extent of 50% of the amount due and interest can, also, be awarded @ 6% per annum. Though we are of the opinion that the penalty imposed is much on the lower side but neither any argument has been advanced by the learned counsel for the claimants nor any cross-objection has been filed, therefore, though we are inclined to enhance the amount of penalty but we do not think it proper to enhance it in the absence of any cross-objection or the arguments to this effect. But it may be observed that the penalty imposed by the learned Workmen Compensation Commissioner was on the lower side. So far as award of interest @ 6% per annum is concerned, that does not require any interference. The cost has, also, rightly been awarded to the claimants. The order does not require any interference so far as the costs is concerned.
9. With the above observations, the appeal is allowed; the amount of compensation is reduced from Rs. 67,780/- to Rs. 54,224/- and the award pertaining to the penalty, costs and interest is maintained.