1. This is an appeal under Section 30 of the Workmen Compensation Act being aggrieved by the order dated 11.2.2004 passed by the Commissioner for Workmen Compensation by which he has allowed the claim and has also allowed the penalty up to the extent of 50% as enumerated under Section 4-A of the Workmen Compensation Act.
2. This Court by an order dated18.12.2009 admitted the appeal on the following substantial questions of law:-
"1. Whether the employee's death due to dog bite can be termed as arising out of and in the course of employment and if not, whether the employer can be forced to pay compensation?
2. Whether in absence of the notice u/ s. 10 of the workmen Compensation Act, 1923 from the claimant/claimants the non-awareness of the employer can be penalized by a penalty to the tune of 50% of the amount of award u/s 4A(3) Workmen Compensation Act, 1923.
3. On the factual scenario when the dog bite two people including the deceased employee, the deceased employee did not take any diligent precaution which resulted in his death while the other persons took precaution and is still surviving. In this scenario the action of the deceased for not taking the treatment can be termed as "willful negligence" on his part or not?"
3. With reference to first question, it is to be seen that claimant has examined herself. She has specifically stated in her statement that on 20.1.93, her husband deceased Raghunath was on duty along with Lineman and other persons, a mad dog entered in the office and has bitten the deceased. He was admitted in Hospital wherein during treatment he expired on 15.3.93. She has further stated that on the same day, another person Dhannalal Dasore was also bitten by the said dog but he has not expired.
4. The next witness is Dhannalal Dasore who has been examined by the claimants who also suffered with the dog bite. He has corroborated the statement given by the claimants and submitted that on the relevant date, the said dog has bitten him and thereafter he entered in the M.P.E.B. Office and also bitten deceased Raghunath. He has further stated that he has taken treatment but deceased Raghunath has not taken any treatment, as a consequence of the same, he died.
5. The next witness is Ismial Khan who was also an employee of M.P.E.B. and at the relevant time he was also on duty along with deceased Raghunath. He has stated that deceased was employed as a Helper with the appellants. He has further stated that on the relevant date, suddenly a mad dog entered in the office and has bitten the deceased. This witness states that deceased died because of dog's bite.
6. In the present case, the appellants have not examined any witness to controvert the aforesaid facts. Keeping in view the questions of law on which the appeal has been admitted, it is to be seen that the factum of death of the deceased due to dog bite is not disputed. The only question on which the appeal has been admitted is whether the employee's death due to dog bite can be termed as arising out of and in the course of employment and if not, whether the employer can be forced to pay compensation?
7. In the present case, there is ample evidence in the statement of witnesses which I have discussed in earlier paragraphs. Deceased was require to remain present in the office. There is no dispute of the same that at the time when he was performing his duties in the office along with his colleagues, suddenly, a mad dog entered in the office and bitten the deceased resulting into hydrophobia and subsequently death has occurred. In the present case, as I have discussed earlier the employer has not adduced any evidence to prove that death of deceased was not due to dog bite. The question as such has not been framed while admitting the appeal.
8. In view of the aforesaid, since the deceased was require to remain present in the office and while performing the work, suddenly a mad dog entered in the office and has bitten the deceased, that itself shows that in the present case, a mad dog entered in the office and bitten the deceased during the course and arisen out of employment. It is not the case of the employer that on the relevant date the deceased was not require to remain present in the office and thus he was not on duty so that it could have been concluded by this Court that dog bite has not resulted in any accident which arouse during the course and arisen out of employment.
9. It is also not the case of the employer that there were safety measures provided to the employees even thereafter the incident in question took place and deceased sustained injuries by dog bite.
10. In view of the aforesaid, the first question is answered against the appellant.
11. The next question in the present case on which the appeal is admitted is whether in absence of the notice u/s. 10 of the workmen Compensation Act, 1923 from the claimant/claimants the non-awareness of the employer can be penalized by a penalty to the tune of 50% of the amount of award u/s 4A(3) Workmen Compensation Act, 1923.
12. In the present case, Commissioner for Workmen Compensation while allowing the claim has also imposed a penalty up to the extent of 50%. The question in the present case is as per the question so framed, this Court is required to look into the aspect whether the award passed by the Commissioner for imposing penalty to its maximum up to 50% is proper. The question as such in the present case is whether no notice is required to be given under Section 10 to the claimants.
13. Section 10 only contemplates that Commissioner shall not entertained the claim unless notice of the accident has been given in the manner provided under Section 10. The aforesaid Section further stipulates that claim application as such can also be entertainable if the employer had knowledge of the accident from some source and is only with respect to control of the jurisdiction to entertain an application by the Commissioner of Workmen Compensation and thus this will have no effect on the scope of Section 4-A (3) of the Workmen Compensation Act, 1923.
14. Section 4-A(3) provides for imposition of penalty if the claim amount is not paid or deposited by the employer within 30 days from the date the amount is due.
15. In the present case, on the date of alleged accident, the amount was not due i.e. when the deceased was biten by the dog on 20.1.93, the said compensation was not due as there was no death on that date. The amount can be said to be due on 15.3.93 when the deceased expired. Ex. P/1 is the death certificate which has been proved by the claimant. There is nothing on record that after the death of the deceased, the claimant has submitted any application to the employer requesting to pay compensation because of dog bite and injuries suffered by the deceased on 20.1.93. In view of the aforesaid, it cannot be said that the amount was taken immediately after 30 days either on 20.1.93 or on 15.3.93 so that the employer was under an obligation to deposit the amount to compensate before the Commissioner for Workmen Compensation and terms of Section 8 of the Act.
16. Apart from the aforesaid, the Commissioner of Workmen Compensation Act has not given any reason for imposing maximum penalty as provided under Section 4- A of the Act. Before imposing the penalty, some findings are required to be given by the Commissioner for imposition of either the maximum penalty or some penalty whatever the facts and circumstances permit to impose the percentage of penalty. Under the circumstances, I hold that Commissioner for Workmen Compensation was not justified in imposing a maximum penalty up to the extent of 50% and accordingly direct that 20% penalty shall be the adequate penalty keeping in view the facts and circumstances of the case.
17. With regard to question no.3 on which the appeal is admitted, merely because one person received treatment of dog bit who was also suffering with the injuries and is survived, that by itself is enough to prove the willful negligence on the part of the deceased in not receiving the treatment.
18. The employer has not appeared in the witness box to state that no sufficient treatment was given to the deceased and, for this reason, he could not be saved.
19. Apart from this, merely because no sufficient treatment was taken by the deceased that by itself would not be sufficient to dislodge the claim of the claimants on the ground of negligence in obtaining treatment.
20. The employer did not adduce any evidence to show that death has no nexus with the dog bite i.e. the injuries which deceased suffered which resulted into his death.
21. In view of the aforesaid, the question no.3 on which the appeal is admitted does not arise in the present case even though the appeal is admitted on the said question.
22. Accordingly, keeping in view the facts and circumstances of the case, the present appeal is partly allowed and out of the 50% of the amount deposited by the present appellants towards compensation, 30% shall be refunded by the Commissioner, Workmen Compensation forthwith.
23. Appeal stands partly allowed.