Arun Kumar Goel, J.
1. It is proposed to dispose of both these appeals by a common judgment since they arise out of the same order passed by the Commissioner under Workmen's Compensation Act at Theog, District Shimla in Case No. 2 of 1993 on 24.9.1996.
2. Respondent No. 1, is the widow and respondent Nos. 2 and 3 are minor daughters of deceased Himmat Singh. He was employed with the respondent No. 4 as a driver on truck No. HIR 308. This truck while on way to Solan met with an accident at Khachi curve near Theog. Himmat Singh died as a result of the accident during the course of his employment with respondent No. 4. This accident took place on 23.4.1993. Up to this extent case is clearly made out from the evidence on record and learned counsel for the parties were not at variance.
3. Application for grant of compensation was filed before the Commissioner at Theog. Respondent No. 4 being the owner/employer, admitted the factum of accident and pleaded that since the truck in question was insured with the appellant, insurance company for all intents and purposes, as such whatever amount was payable, was to be paid by the insurance company. Otherwise, claim of respondent Nos. 1 to 3 was admitted subject to strict proof of wages and age of the deceased.
4. On the other hand, appellant insurance company contested the claim of respondent Nos. 1 to 3 because the deceased driver was not holding a valid driving licence as it was found to be fake, as such their entitlement was disputed. In rejoinder, pleas to the contrary urged by owner as well as the insurance company were controverted and averments made in the application were reiterated.
5. On the pleading of the parties the following issues were framed by the Commissioner:
(1) Whether the deceased was employed as driver with respondent No. 4 at the monthly wages of Rs. 1,600? OPP
(2) Whether the deceased died during the course of employment with respondent No. 4? OPP
(3) Whether the deceased was 30 years of age on the date of death? OPP
(4) Whether the deceased held a valid driving licence and its effect? OPP
(5) Whether the applicants are entitled for the compensation as alleged? OPP
(6) Relief.
6. Issue Nos. 1, 2, 4 and 5 were held in affirmative and thus while allowing compensation, interest and penalty has been levied. A total sum of Rs. 1,06,601 has been made payable by the respondents and insurance company has been ordered to deposit this amount.
7. Appellant insurance company has filed this appeal on two grounds, namely, that the driving licence of Himmat Singh was fake and its subsequent renewal in District Kinnaur does not make it valid; and alternatively without conceding it was urged that it is not liable for payment of penalty as assessed by the Tribunal.
8. On the other hand, in F.A.O. (WCA) No. 250 of 1997, claimants have prayed for enhancement of compensation as according to them after the date of accident, the amendment has been made to Workmen's Compensation Act and they are entitled to compensation as per amended provisions.
9. So far owner of the vehicle, respondent No. 4, is concerned, it has been fairly stated on its behalf, that in view of the law as it stood on the date of accident, it is liable to pay penalty only and rest of the amount as assessed by the Commissioner or as may be assessed by this court is payable by the insurance company.
10. So far liability to pay interest and penalty is concerned, it is no more res Integra in view of the decision of the Hon'ble Supreme Court of India in Wed Prakash Garg v. Premi Devi 1998 ACJ 1 (SC), wherein while dealing with liability to pay interest, it was held as under:
Thus so far as interest is concerned it is almost automatic once default, on the part of the employer in paying the compensation due, takes place beyond the permissible limit of one month. No element of penalty is involved therein. It is a statutory elongation of the liability of the employer to make good the principal amount of compensation within permissible time-limit during which interest may not run but otherwise liability of paying interest on delayed compensation will ipso facto follow. Even though the Commissioner under these circumstances can impose a further liability on the employer under circumstances and within limits contemplated by Section 4-A (3) (a) still the liability to pay interest on the principal amount under the said provision remains a part and parcel of the statutory liability which is legally liable to be discharged by the insured employer. Consequently, such imposition of interest on the principal amount would certainly partake the character of the legal liability of the insured employer to pay the compensation amount with due interest as imposed upon him under the Compensation Act. Thus the principal amount as well as the interest made payable thereon would remain part and parcel of the legal liability of the insured to be discharged under the Compensation Act and not dehors it.
11. Similarly, regarding who is liable to pay interest, it was held as under:
But similar consequence will not follow in a case where additional amount is added to the principal amount of compensation by way of penalty to be levied on the employer under circumstances contemplated by Section 4-A (3) (b) of the Compensation Act after issuing the show-cause notice to the employer concerned who will have reasonable opportunity to show cause why on account of some justification on his part for the delay in payment of the compensation amount he is not liable for this penalty. However, if ultimately, the Commissioner after giving reasonable opportunity to the employer to show cause takes the view that there is no justification for such delay on the part of the insured employer and because of his unjustified delay and due to his own personal fault he is held responsible for the delay, then the penalty would get imposed on him. That would add a further sum up to 50 per cent on the principal amount by way of penalty to be made good by the defaulting employer. So far as this penalty amount is concerned it cannot be said that it automatically flows from the main liability incurred by the insured employer under the Workmen's Compensation Act. To that extent such penalty amount as imposed upon the insured employer would get out of the sweep of the term 'liability incurred' by the insured employer as contemplated by the proviso to Section 147 (1) (b) of the Motor Vehicles Act as well as by the terms of the insurance policy found in provisos (b) and (c) to Sub-section (1) of Section II thereof. On the aforesaid interpretation of these two statutory schemes, therefore, the conclusion becomes inevitable that when an employee suffers from a motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the Compensation Act along with interest thereon, if any, as imposed by the Commissioner under Sections 3 and 4-A (3) (a) of the Compensation Act will have to be made good by the insurance company jointly with the insured employer. But, so far as the amount of penalty imposed on the insured employer under contingencies contemplated by Section 4-A (3) (b) is concerned as that is on account of personal fault of the insured not backed up by any justifiable cause, the insurance company cannot be made liable to reimburse that part of the penalty amount imposed on the employer. The latter because of his own fault and negligence will have to bear the entire burden of the said penalty amount with proportionate interest thereon if imposed by the Workmen's Commissioner.
12. This decision was followed subsequently by Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Shiv Singh 2000 ACJ 1434 (SC) and Kashibhai Ram-bhai Patel v. Shahabhai Somabhai Par-mar 2000 ACJ 1435 (SC).
13. In view of the authoritative pronouncement by the Supreme Court, it held that so far interest component along with amount of compensation under Workmen's Compensation Act, 1923 is concerned, it is payable by the insurance company and so far liability to pay penalty is concerned, it is that of the insured, i.e., Kinnaur District Co-operative M&C; Federation Ltd., Tapri, District Kinnaur.
14. So far plea of the appellant that the licence held by deceased Himmat Singh was fake, as such insurance company is not liable is concerned, for the reasons to be recorded hereinafter it cannot be accepted.
15. Appellant could only succeed if the owner as well as the claimants conceded that the deceased was holding a fake licence. This is not the situation in the present case. Otherwise, since defence had been specifically taken by the appellant, onus was upon it to have proved the said fact by leading reliable, trustworthy and legal evidence. This could be done by summoning the record from the concerned Registration and Licensing Authority and proving the same under law.
16. By referring to RW 2/1, Mr. Lalit Kumar Sharma forcefully urged that on inquiry having been made from the R.T.O., Jhansi it was verified by Chand Parkash Gupta, surveyor, that the licence in question was not issued by the R.T.O., Jhansi, as such it was not genuine. A photocopy of this communication attested by Naresh Kumar Gupta along with written statement of R.T.O. has been placed on record during the course of statement of DW 1 Jagdish Narang, the Assistant Divisional Manager, United India Insurance Co. Ltd., Shimla. When these documents (two pages of Exh. RW 2/1) were being brought on record in the statement of said witness, their production was specifically objected to on behalf of claimants on the mode of proof.
17. Once insurance company was put to notice that objection has been specifically raised, it was not only incumbent, but was expected of it as custodian of public money as well as organ of the welfare State to have taken further action by examining the necessary evidence. No attempt appears to have been made on behalf of the appellant to take the case to its logical end. This demonstrates the seriousness with which those who are responsible as officers of the public sector undertakings are discharging their duties. Leaving the matter here only for the appellant and its functionaries to see how best they can protect their interest, it is observed that for no purpose Exh. RW 1/A can be looked into and simply because it is exhibited will not make it admissible in evidence. It also does not dispense with its proof. Reliance is being placed in this behalf on a decision of Hon'ble Supreme Court in Sait Tarajee Khimchand v. Yelamarti Satyam AIR 1971 SC 1865, where from relevant observation is extracted, which is as under:
(15) The plaintiffs wanted to rely on Exhs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs.
Thus this document cannot be looked into and plea urged by Mr. Lalit Sharma on its basis has no merit, as such rejected.
18. Compensation assessable under the Act is now mathematical, leaving no room for doubt. So far assessment of compensation is concerned, in the present case there is overwhelming evidence. None else, but the witness Anant Ram from the employer's office, i.e., respondent No. 4, while appearing in court admitted the accident and has stated that claim was lodged with the insurance company by respondent Nos. 1 to 3. According to him date of birth of deceased as per record of the employer is 9.9.1963. Date of death is 23.4.1993. It is between 29-30 years. It has come in the statement of Anant Ram Chauhan, working as an assistant in the office of employer respondent No. 4, that salary of the deceased was Rs. 1,740 per month. He has proved on record the salary certificate Exh. PW 3/A.
19. Under Section 4 (1) (a) of the Workmen's Compensation Act amount equal to 40 per cent of the monthly wages of the deceased workman multiplied by the relevant factor (which as per Schedule IV of the Act keeping in view the age comes to 209.92) determines the amount of compensation. Thus total compensation in this case is to be assessed on this basis.
20. What follows from the above discussion based on evidence on record is that deceased Himmat Singh had completed 29 years of age on the last birthday. Thus relevant factor in his case is 209.92. 40 per cent of his monthly wages in view of statement of PW 3 and Exh. PW 3/A comes to Rs. 694. Compensation payable thus comes to Rs. 1,45,684.48. The learned counsel for the appellant insurance company urged that this part of the order assessing compensation passed by the Commissioner does not call for any interference. Suffice it to say that Commissioner was required to work out the compensation in terms of the materials and evidence which were before him.
21. It has come from the official witness, i.e., from the office of employer, respondent No. 4, that what was the age of the deceased and what was the date of death as also his monthly wages. In this behalf we may observe that Commissioner is required to assess the compensation under the provisions of the Act on the basis of the proved facts. We have no doubt that age as well as monthly wages of the deceased stood proved beyond any shadow of doubt, therefore, the plea urged by Mr. Lalit Sharma not to enhance the amount of compensation is hereby rejected.
22. The Workmen's Compensation Act, 1923 is a beneficial legislation aimed at allowing the compensation in its terms wherever it is payable under law. It prohibits contracting out. Object of it is that taking undue advantage of urgent need and/or poverty of a workman, employer may not persuade him to accept a lesser amount. Even in cases where lesser claim is made than what is permissible under the provisions of the Act, it is for the courts to see that the same is assessed and calculated as per law governing the same. In this view of the matter and looking to the evidence on record, particularly date of birth of the deceased, as well as his monthly wages, it is found that respondent Nos. 1 to 3 are entitled to a total compensation of Rs. 1,45,684.48 or say Rs. 1,45,684 when rounded off. They shall be entitled to 6 per cent interest on thus amount from 23.5.93 till the amount is deposited besides penalty of Rs. 5,000 as assessed by the Commissioner below. In case any part of this compensation has already been deposited, either before the Commissioner or in this court, interest on that part will cease from the date of deposit. The appellant insurance company is directed to deposit the balance amount of compensation as well as of interest, as aforesaid in the Registry of this court on or before 31.12.2001 and respondent No. 4, owner of the vehicle, employer, is directed to deposit amount of penalty by or before that date.
23. Plea urged by Mr. Onkar Jairath to assess the compensation in terms of the provisions of Workmen's Compensation Act, as amended by Central Act 30 of 1995 needs now to be dealt with. We are of the view that this plea cannot be accepted. Reason being that so far substantive right of respondent Nos. 1 to 3 (who are appellants in F.A.O. No. 250 of 1997) to claim compensation is concerned, it stood fructified on the date of accident, when cause of action accrued to them.
24. Admittedly, amendment has been made to the Act after the date of accident. Thus the amended provision of law affect the substantive rights of both the parties, claimants, as well as owner/employer and insurance company.
25. It is well-known rule of interpretation that a provision of law unless specifically made applicable retrospectively, would be perspective in its application. With a view to advance his case Mr. Jairath urged that being a beneficent provision of law it needs to be retrospectively applied. He could not bring anything to our notice to advance his this line of argument. So, far enhancement/decrease in the payment of compensation under the Workmen's Compensation Act is concerned, by no stretch of imagination it can be said to be procedural in nature so as to make it applicable retrospectively even in the absence of there being anything in that behalf in the amended provision. In the face of this position we are satisfied that Act as it stood prior to its amendment by the Central Act 30 of 1995 will govern the rights of the parties.
26. In Ramji v. Lalit Kumar Bardiya 1995 ACJ 877 (MP), a learned Judge of Madhya Pradesh High Court while dealing with such situation held as under:
(9) The last question is as to how much amount of compensation can be awarded for the death of the deceased. The deceased was employed on fixed wages of Rs. 140 per month. He died on 4.7.1981 before amendment was introduced to Section 4 of the Workmen's Compensation Act, providing for a minimum compensation of Rs. 20,000 in case of death. The amendment to Section 4 was introduced with effect from 1.7.1984. On the relevant date when the death occurred of the workman, as per Schedule IV under Workmen's Compensation (M.P.) Rules, 1962, for the salary between Rs. 100 and Rs. 150 the amount of compensation provided in the event of death was Rs. 7,000. The claimants are, therefore, entitled to the aforesaid amount of compensation.
27. In Oriental Fire & Genl. Ins. Co. Ltd. v. Bidi 1972 ACT 187 (Orissa), it was held as under:
(11) Admittedly, by the time the Tribunal passed its award, Schedule IV had been amended. Under the amended Schedule, the amount of compensation payable in case of death of one who was in receipt of monthly emoluments of not less than Rs. 200 and not more than Rs. 300, is Rs. 8,000. It is this amount of Rs. 8,000 which is saddled on the appellant company, obviously on the ground that this Schedule as amended is applicable. It is contended on behalf of the appellant that the Schedule which was in force on the date of the death of the driver would govern the case and not the Schedule in force on the date on which the compensation was awarded. The normal rule of construction of statutes is that its operation is prospective unless it is made retrospective either expressly or by necessary implication. The rights and liabilities under the Workmen's Compensation Act get crystallized on the date of death of the workman and the making of the application is only a procedural matter. On the date of death of the deceased, the unamend-ed Schedule was in force and under that Schedule, the driver was entitled only to Rs. 4,000. There is nothing in the amendment Act which makes the amended provision retrospective. The appellant is, therefore, correct in its contention that under the Workmen's Compensation Act, its liability, if any, is limited only to Rs. 4,000.
28. In Oriental Insurance Co. Ltd. v. Kala Devi 1997 ACJ 17 (HP), a Division Bench of this court held as under:
(9) The accident in the present case had taken place on 6.10.1981, that is, before Schedule IV to the Act came to be amended. This Schedule came to be amended on and with effect from 1.7.1984. Therefore, while assessing compensation, the Commissioner could not have adopted the formula laid down in the amended Schedule. A Division Bench of this court in New India Assurance Co. Ltd. v. Malti Devi F.A.O. No. 172 of 1989; decided on 24.7.1995, has held that in case of an accident taking place before the amendment of Schedule IV to the Act, compensation payable to the legal heirs of the deceased workman is to be assessed in accordance with the unamended Schedule.
29. In view of the above discussion as well as the case-law referred to herein-above, the plea urged by Mr. Jairath to assess the compensation in view of the amended provisions supra is hereby rejected.
30. No other point is urged.
31. In view of the aforesaid discussion, F.A.O. No. 185 of 1997 as well as No. 250 of 1997, both are partly allowed in the following terms:
(a) Compensation assessed by the Commissioner is enhanced from Rs. 83,968 to Rs. 1,45,684;
(b) Interest at the rate of 6 per cent per annum is payable on this amount w.e.f. 23.5.1993 till the date of its deposit in the Registry of this court. In case any part of the awarded amount stands already deposited, interest on such amount shall cease from the date of deposit;
(c) The amount of penalty in the sum of Rs. 5,000 is payable by the respondent No. 4 also to be deposited on or before 31.12.2001 by which date the insurance company will deposit the balance amount of compensation as well as the amount of interest, as aforesaid;
(d) Appellant insurance company shall also pay the costs of both these appeals which are quantified at Rs. 3,000. This amount shall also be deposited on or before 31.12.2001.
Registry shall place a copy of the judgment on the file of F.A.O. (WCA) No. 250 of 1997.