Executive Engineer, Public Works Department and Another Vs. Bhimrao Manikrao Unhale - Court Judgment

Excerpt:
[a] workmen's compensation act (8 of 1923 as amended by the act 30 of 1995), section 4a(3)(a) - compensation - interest - award with 6% interest allowed - appeal pendency of - rate of interest enhanced to 12% - being beneficial provision and because of pendency of appeal - interest at 12% awarded.;the act itself is enacted to consider the welfare of the workmen or their dependents. the amendment to section 4-a(3) of the act enhancing the interest to 12% per annum indicates that whatever was specified before the amending act, was not adequate considering the value of rupee and sky-rocketing prices of the goods. undisputedly, there is no finality to the claim made by the respondent-bhimrao. the appeal is the continuation of the proceedings. therefore, according to me, the amended provision as regard the enhancement of the interest from 6% p.a. to 12% p. a. being in the interest of the workman, is applicable.;[b] workmen's compensation act (8 of 1923), section 4a(3)(b) - penalty for delay in making payment of compensation - delay not found deliberate - imposing of penalty not justified.;the penalty is imposed, if from the record, the negligence or deliberations are shown, in not making the payment. considering the facts and circumstances of the case and the submissions made on behalf of the appellants, difficult to construe the delay as deliberate one in depositing the provisional compensation.;if there is any delay, that delay is in the transit sending the papers from one table to another. such delay cannot be considered as a deliberate or intentional. without considering these aspects, the learned commissioner under workmen's compensation act, held that no sufficient cause or justification is shown. - - on the date of accident precisely on march 1, 1990, was working a driver, driving road-roller. the parliament from time to time has introduced amend merits in the old act as well as in the new act in order to protect the interest of the victims of the accidents and their heirs if the victims die. the deletion of sub-section (3) from section 166 should be given full effect so that the object of deletion of said section b the parliament is not defeated. inderjit, [1966]3scr275 this court observed :if the new law speaks in language, which, expressly or by clear intendrnent, takes in even pending matters, the court of trial as well as the court of appeal must have regard 1(1 to an intention so expressed,.and the court of appeal may give effect to such a law even after the judgment of the court of first instance. 'the general principle indeed seems to be that alterations in the, procedure are always retrospective, un less there be some good reason against it.1. the appellants in the instant first appeal under section 30 of the workmen's compensation act, 1923, questioned the findings recorded by the commissioner, workmen's compensation act, yavatmal, in workmen's compensation case no.6 of 1990 decided on february 11, 1992. 2. the facts in brief are that the respondent bhimrao manikrao unhale at the relevant time i.e. on the date of accident precisely on march 1, 1990, was working a driver, driving road-roller. he was getting fixed salary of rs 1, 3801per month as driver. at the relevant time, the respondent bhimrao was of about 41 to 42 years of age. on march 1, 1990, while on duty, he came under the road roller and his left arm was crushed. immediately, he was removed to the hospital. his left arm above the elbow was amputated. dr. vishnu (p.w.2) - the medical officer who examined the respondent, deposed that his left hand was crushed and the same was amputated. exh. 26 is die medical certificate issued by the doctor. 3. according to doctor, it was found 80% permanent disablement to the patient. further in the cross-examination, he stated that the doctors found permanent/partial disablement of 80% and not permanent total disablement of 80 %. further he deposed that the findings were based on the book namely uniform definitions of the physically handicapped published by government of india, ministry of welfare, shastri bhawan, new delhi, published in gazette of india part-1 no. 4-2/83 h.w. iii, page 23, guidelines for evaluation of permanent physical impairment in amputees dr. vishnu is one of the members of the medical board functioning at yavatmal. exh. 32 is the report of the medical board. 4. the respondent was referred to the medical board, indira gandhi medical college, nagpur. dr. bhole (d.w. 1) is one of the members of the medical board. according to dr. bhole, the members of the board examined the patient on august 8, 1990 and found that the left arm above the elbow was amoutaled. according to the medical board, they found 45 % disability. 5. the respondent-bhimrao, filed the application before the commissioner under the workmen's compensation act, 1923, under section 22(2) of the workmen's compensation act, 1923 read with section 167 of the motor vehicles act, 1988. the learned commissioner after scrutinizing the evidence led by the parties and considering the legal proposition arrived at the conclusion that the respondent claimant was a workman under the provisions of workmen's compensation act, 1923. the learned commissioner held that the claimant is entitled to rs.90, 685/- as compensation. however, the claimant restricted his clan to rs. 87, 770/- the compensation claimed was awarded. the learned commissioner also granted interest at the rate of 6% per amum. besides this, delay as regards making provisional payment based on the extent of liability which lie accepts under section 4a(2) of the workmen's compensation act, not being satisfactorily explained, the penalty was imposed on the appellants. 6. in the instant appeal, smt. wandile, the learned a. g p. raise e' fo lowing grounds : (i) though there is no evidence to arrive at the conclusion that the respondent-applicant is a workman under the provisions of workmen's compensation act, learned commissioner held as such and, thus, committed error apparent. (ii) the quantum of compensation is not in consonance with the gravity of the injuries sustained by the respondent-bhimrao. (iii) the commissioner under the workmen's compensation act, committed an error inusing penalty to the tune of rs. 10 18, 137/- 7. with the assistance of the learned counsel of the parties i perused the evidence, findings recorded by the commissioner under the workmen's compensation act, 1923, and the citations relied upon by the parties. as regards first ground, it is submitted that the respondent-bhimrao being a temporary employee, he was not covered under the provisions of workmen's compensation act, 1923 . the learned commissioner considered the submissions on this count in detail in the impugned judgment. according to me, he has rightly arrived at the conclusion that the respondent is a workman and as such he has rightly invoked the provisions of the workmen's compensation act, 1923. thus i do not find any merit in the submissions on this count. 8. as regards the quantum of compensation, smt. wandile, the learned a.g.p. made a strenuous argument and submitted that the certificate issued by the medical board at yavatmal, calculating 80% disability, has no basis. the claimant, according to learned a.g.p. was at the most entitled to the compensation of rs. 40, 808.21 paise as detailed by the appellants in para 7 of their written reply. shri malvi, the learned counsel for the respondent, placed reliance on the case pratapnarayan singh v. shrinivas 1976 acj 141. this case was cited even before the commissioner under the workmen's compensation act, 1923, which the learned commissioner referred in para 13 while deciding issue no. 5. the facts are more or less similar to the case in hand. in the case before their lordships of the apex court, the left arm above the elbow of the claimant was amputated and thereby the claimant was amputated and thereby the carpenter had become unfit to work as carpenter. because of the total disablement, the work of carpenter could not be done by one hand only. in the case, in hand, the claimant was working as driver on the road-roller. undisputedly, the left arm was crushed under the road-roller. the left arm above the elbow joint was amputated. it is clear that because of the permanent to disablement, the claimant-bhimrao cannot work as driver. ale commissioner relied on the judgment cited supra and considering the guidelines, rightly computed the compensation and granted the claim of rs. 87, 770/-. 9. as regards the imposition of penalty, smt. wandile the learned a.g.p. submitted that the learned commissioner ought not to have imposed penalty when the interest had already been granted at the rate of 6% per annum. according to her, the penalty is imposed if the action as regards, the delay in payment is deliberate or malafide. she further submitted that the appellants were not aware about the percentage of the injury till summons was received by the appellants from the commissioner under the workmen's compensation act, 1923. with the assistance of the learned counsel, i perused the record. from the record it is clear that on september 24, 1990, the appellant received summons from the commissioner under the workmen's compensation act, 1923. the appellants made appearance on september 28, 1990 and thereafter filed reply on march 20, 1991. besides this, according to mrs. wandile, the learned a.g.p., as soon as bhimrao was given fitness certificate, he had been provided with alternative service without any change in the salary and other benefits which he was getting prior to the date of incident. admittedly, there is a delay in depositing the provisional compensation to be paid under section 4a(2) and (3) of the w.c. act. section 4a(3) reads as under : '4-a(3) where any employer is in default in paying the compensation due under this act within one month from the date it fell due, the commissioner shall- (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve percent, per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may he specified by the central government, by notification in the official gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty.' the perusal of this provision makes it clear that the compensation under this act he paid within a month from the date it fell due. if there is no compliance of this provision, the penalty be imposed if there is no justification for the delay. the penalty is imposed if, from the record, the negligence or deliberations are shown, in not making the payment. considering the facts and circumstances of the case and the submissions made on behalf of the appellants, difficult to construe the delay as deliberate one in depositing the provisional compensation. from the record it is clear that a separate application was moved by the respondent/claimant for no fault liability. on this application, the court passed order and the compensation of rs. 12, 000/- was directed to he paid to the claimant vide order dated december 1 1, 1990. the appellants deposited the amount within a period of one month. similarly immediately after the judgment and order passed by the commissioner under the workmen's compensation act, on february 11, 1992, the entire amount of compensation came to he deposited on march 23, 1992. besides this from the submissions made in the reply, it is very clear that immediately after the receipt of the report if medical board in the month of september. 1990 the appellants have submitted that the matter for grant of compensation was referred to the requisite authority, but the amount not being received, could not be paid. it indicates that if there is any delay, that delay, is in the transit sending the papers from (ine table to another. such delay cannot be considered as deliberate or intentional. without considering these aspects the learned commissioner under workmen's compensation act, held that no sufficient cause justification shown. thus, the findings being contrary to the evidence, the order on this count is quashed and set aside. 10. the respondent-bhimrao filed cross-objection claiming the enhanced compensation, interest at the rate of 12 % per annum, in view of the amended provisions of section 4a(3) of the act. by amending act of 1995 which came in act on september 15, 1995, the rate of interest has been increased to 12 % per annum from 6% per annum. shri maivi, the learned counsel for the respondent submitted that the provisions of workmen's compensation act are beneficial and welfare legislation. there being no finality to the clan of the respondent-bhimrao, he is entitled to get interest at the rate of 12 % per annum. the learned counsel further submitted that though it has not been specifically expressed in the amended provisions that the claimants are entitled to get interest at the rate of 12% per annum retrospectively, the provisions being beneficial and enacted for the welfare of the workman or his dependent, the respondent-workman is entitled to get the benefit of the amended provisions. a reliance has been placed on the case of jagdish v. arun perj wmery works 1991(1) tac 296 (m.p.). no doubt, the madhya pradesh high court enhanced the interest from 6% to 12% but there is no discussion at all to consider as basis for the enhancement of interest. therefore, this ruling is of no assistance. 11. the learned counsel further relied on the case of dhannalal v. d. p. yoayvargiya, : air1996sc2155 , wherein it is observed : 'when sub-section (3) of section 166 has been omitted, then the tribunal has to entertain a claim petition without taking noted of the date on which such accident had taken place. the claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when sub-section (3) of section 166 was in force. the parliament from time to time has introduced amend merits in the old act as well as in the new act in order to protect the interest of the victims of the accidents and their heirs if the victims die. the deletion of sub-section (3) from section 166 should be given full effect so that the object of deletion of said section b the parliament is not defeated. if a victim the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay of filing the is claim petition is pending either before the tribunal, high court or the supreme court.' a reliance has also been placed on the case 20 of mithilesh kumari v. prem behari khare, : [1989]177itr97(sc) . in para 21 while interpreting the statute as regard the provisions of penami transaction, it is observed : 'every law that takes away or impairs rights vested agreeably to existing laws as is retrospective, and is generally unjust and may he oppressive. but laws made justly and for the benefit of individuals and the community as 30 a whole, as in this case, may relate to a time antecedent to their commenactment. the presumption against retrospectivity may in such cases he rebutted by necessary implications from the language employed in the 35 statute it cannot he said to he an invariable rule that a statute could not he retrospective unless so expressed in the very terms of the section which had to he construed. the question is whether on a proper construction, the legislature may be said to have so expressed its intention.' their lordships while construing the provisions of west bengal premises tenancy act of 1986, in the case of lakshmi narayan guin v. i niranjan modak, : [1985]2scr202 , observed in para 9 as under : that a change in the law during the pendency t so of an appeal has to be taken into account and will govern the rights of the parties was laid down b this court in ram sarup air 13 sc 5.53 which was followed by'thisi court in mula v. godhu : [1970]2scr129 . we may point out that in dayawati v. inderjit, : [1966]3scr275 this court observed : 'if the new law speaks in language, which, expressly or by clear intendrnent, takes in even pending matters, the court of trial as well as the court of appeal must have regard 1(1 to an intention so expressed,. and the court of appeal may give effect to such a law even after the judgment of the court of first instance.' reference may also be made to the decision of this court in amarjit kaur v. is pritam singh : [1975]1scr605 where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as kristnama chatiar v. mangammal ilr(1902) 26 mad. 91 by bhashyarn lyengar, j., that the hearing of an appeal was under the processual law of this country, in the nature of a rehearing of the suit. in amarjit kaur (supra) this court referred also to lachmeshwar prasad shukul v. keshr lal chaui in which the federal court has laid down that once a decree passed by the court had been appealed against the matter became sub agam and thereafter the appellate court acquired scission of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the court below retained jurisdiction.' smt. wandile, the learned a.g.p. on the contrary, tried to show that the amended provisions cannot be construed retrospectively, except the procedural matters. the workmen's 4o compensation act, 1923 specified the interest at the rate of 6 % p.a. under section 4a(3). by the amending act, it has been enhanced to 12 % 1 per annum. even by the amending act, it has 1 not been specifically expressed that the claimants under the workmen's compensation act, are entitled to get interest at the rate of 12 % per k annum retrospectively, during the pendency of r the appeal. a reliance has been placed on the r case of mahadeo prasad singh v. ram lochan, : [1981]1scr732 , wherein in para 2 1, it has been il, 1 1 ad 1997 observed : 'as a general rule, a statute, which takes 9 away or impairs substantive rights acquired s under the existing law is construed to have a prospective operation unless the language of that statute expressly or by inevitable intendment compel is a contrary construction. but this presumption as to prospective operation of a statute does not apply to an enactment affecting procedure or practice such as the code of civil procedure. the reason is that no person has a vested right in any course of procedure. 'the general principle indeed seems to be that alterations in the, procedure are always retrospective, un less there be some good reason against it.' 12, giving conscious thought to the rival 20 submissions of the learned counsel, undoubtedly, the workmen's compensation act, 1923, is a beneficial and welfare egislation . the act itself is enacted to consider the welfare of the workmen or their dependents. the amendment 25 to section 4a(3) of the act enhancing the interest to 12% per annum indicates that whatever was specified before the amending act, was not adequate considering the value of rupee and sky-rocketing prices of the goods. undisputedly, there is no finality to the claim made by the respondent bhimrao. the appeal is the continuation of the proceedings. therefore, according to me, the amended provision as regard the enactment of the interest from 6 % p.a. to 12 % is p.a. being in the interest of the workman, is applicable. '1'hus, mr. maivi has rightly submitted that the respondent-claimant bhimrao is entitled to be paid interest at the rate of 12 % p.a. from the date the amount of compensation became 10 due. 13. in the result, the appeal is partly allowed.the findings as regard the imposition of penalty are quashed and set aside. 5 the cross-objection is partly allowed. the appellants are directed to pay the interest to the respondent-bhimrao at the rate of 12% per annum on the amount due from the date it became a due till its realisation. smt. wandile, a.g.p. informs that an amount of rs. 1,07,7801 was 140 deposited in the trial court. out of this amount, the respondent-bhimrao has withdrawn rs. 57,7801-. the balance of rs. rs 50,0001is in the fixed deposit in the nationalised bank. the 5 appellants are directed to make fresh calculations in terms of the order above at the earliest. no order as to costs. 5