State of Rajasthan Vs. Kesu Lal - Court Judgment

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workmen's compensation act, 1923 - sections 3(1)(b), 4 and 4-a(3)--compensation for fatal employment injury--deceased a woman worker of 32 years age getting rs. 32 per day--commissioner awarded compensation of rs. 84,802/- with interest @ 12% per annum and penalty at the rate of 10% a total rs. 1, 29 and 136/--appeal against--plea that deceased died due to her own negligence--held, fact of negligence was considered by commission and held that proviso (b) to sub-section (1) of section 3 of the act were not applicable--commissioner considered all facts before it in right perspective--since appellant defaulted in paying compensation within one month from the date it fell due, the penalty at the rate of 10% was also awarded--no error in impugned judgment.;appeal dismissed - - the appellant has failed to plead and prove the grounds on which it claims exemption as noticed above.h.r. panwar, j.1. this appeal is directed against the judgment and award dated 20.8.1999 passed by learned workmen's compensation commissioner, rajsamand, (hereinafter referred to as 'the commissioner') in w.c. case no. 8/97, whereby the learned commissioner awarded a sum of rs. 1,29,136/- as compensation in favour of respondent-claimant.2. briefly stated, the facts of the case which are relevant and necessary for the decision of this appeal, are that a claim petition was filed by the respondent-claimant claiming compensation on account of death of his wife smt. manaki due to employment injuries sustained by her on 29.2.1996. in the claim petition the respondent claimant specifically pleaded that the deceased smt. manaki wife of the respondent, was working as labourer in the employment of the appellant. she was engaged in raising a wall with the help of stones on 29.2.1996. during the course of her employment, personal injuries were caused to her by an accident, as a heavy stone fell on her and she was crushed under the said stone and succumbed to the injuries. it was also stated that on the relevant date of the accident, she was working with employer state and used to earn rs. 32/- per day and was 32 years of age.3. a reply to the claim petition was filed by the appellant - state, wherein the appellant admitted that the deceased was engaged in the employment of the appellant on the relevant date of the accident and she used to be paid rs. 32/- per day by the employer and she died due to the injuries sustained during the course of employment. it has been established that the deceased smt. manaki sustained employment injuries due to the accident during the course of employment. in the reply, the appellant stated that the deceased died of her own negligence.4. learned counsel for the appellant contended that the learned commissioner fell in error in not framing issues arising out of the pleadings of the parties. he further contended that rule 28 of the workmen's compensation rules, 1924 (for short 'the rules of 1924') provides that after considering any written statement and the result of any examination of the parties, the commissioner shall ascertain upon what material propositions of fact or of law, the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appears to him to depend.5. learned counsel for the respondent claimant contended that the appellant state is not at variance on various material points in their written statement, as the non-applicant appellant in its written statement admitted that the deceased was in employment of the appellant and sustained fatal injuries during the course of the employment. it was further admitted that the deceased was paid rs. 32/- per day as wages. the age of the deceased has not been disputed. thus, it is clear from the pleadings that the state was not at variance and, therefore, no occasion arose for the learned commissioner to frame issues.6. learned commissioner also came to the conclusion that the appellant state admitted in its written statement that the deceased manaki was in the employment of the state as a labour and was paid rs. 32/- per day and died due to employment injuries. the only point raised is that she died due to her own negligence. this fact has been considered by the commissioner and it has been held that the proviso (b) to sub-sections (1) of section 3 of the workmen's compensation act, 1923, (hereinafter referred to as the 'the act') are not applicable.7. learned counsel for the respondent contended that the employer is liable to pay compensation under section 3(1) of the act. the employer can claim exemption from liability to pay compensation only in the cases as provided in clause (b) (i), (ii) and (iii) of sub-section (1) of section 3 of the act. therefore, question of negligence of the deceased is not required to be gone in to. moreso, this cannot be a ground to deny the compensation. the appellant has failed to plead and prove the grounds on which it claims exemption as noticed above.8. it has come on record that the deceased had one son varda and daughter shanti, who have not been impleaded in the claim petition. the learned commissioner after taking into account the dependency of son varda and daughter shanti would make distribution of the compensation under section 8 of the act, after the amount of compensation is deposited with it.9. i have gone through the judgment impugned.10. in my considered opinion, the learned commissioner has considered all the facts before it in right perspective and reached to the conclusion that the deceased manaki sustained employment fatal injuries during the course of employment due to the accident, and she was 32 years of age and used to be paid rs. 32/- per day. accordingly, as per the provisions envisaged under section 4 of the workmen's compensation act, 1923, the learned commissioner awarded a compensation of rs. 84,802/-. sub-section (3) of section 4-a of the act, provides that 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 may direct that in addition to the amount of the arrears, simple interest at the rate of twelve percent per annum on the amount due together with, if in the opinion of the commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty. in the instant case, the learned commissioner has awarded interest @ 12% p.a. from the date of the accident till the date of payment and also awarded penalty at the rate of 10% as the appellant employer defaulted in paying compensation within one month from the date it fell due. in my considered opinion, there is no error in the judgment impugned.11. in view of the aforesaid discussion, i find no merit in this appeal. accordingly, it fails and is dismissed. no order as to costs.