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The Workmen' S Compensation Act, 1923
Section 4A(3) in The Workmen' S Compensation Act, 1923
Pratap Narain Singh Deo vs Srinivas Sabata And Anr on 4 December, 1975
Section 4 in The Workmen' S Compensation Act, 1923
Section 4A in The Workmen' S Compensation Act, 1923
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Dasam China Pappayya Raju vs Sripada Ramachandra Prabhakara ... on 18 September, 1981
Md. Abdul Aziz vs Golla Bhumavva And Ors. on 24 April, 1982

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Andhra High Court
Bangaru Koteswaramma And Others. vs G.Srinivasa Rao And Another on 18 February, 2011

THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR

CIVIL MISCELLANEOUS APPEAL No.99 of 2010

18-02-2011

Bangaru Koteswaramma and others.

G.Srinivasa Rao and another

Counsel for the Appellants: Sri M. Pitchaiah

^Counsel for the Respondents No.Sri R.K. Suri ^

Counsel for the Respondents No.2: Sri K.Rama Krishna

:JUDGMENT:-

The appellants' herein are assailing order dated 15.02.2007 passed in W.C.No.128 of 2004 by the Commissioner for Workmens' Compensation and Assistant Commissioner of Labour, Vijayawada ('the lower authority', for brevity). The first appellant is the wife of Bangaru Madhusudhan Rao (the deceased), who died on 12.07.2004 while driving a trailer bearing registration No.KA 08 B 5279. The second appellant herein is the son of the deceased and the first appellant. The third appellant is the father of the deceased. They filed an application under Section 22 of the Workmen's Compensation Act, 1923 ('the Act', for brevity) claiming a compensation of Rs.3,50,000/- before the lower authority for the death of the deceased. The first respondent is the owner of the said trailer and the second respondent is the Insurance Company with which the trailer was insured during the relevant period.

2. The brief facts of the case are as follows:-

The deceased was working as the driver under the first respondent on a monthly salary of Rs.4,000/-. The said trailer, with 18 tyres and of 40 feet length, was loaded with steel reels at Visakhapatnam. The deceased, another driver - S.K.Basha and one Thota Phanindra - cleaner were in the cabin of the trailer. S.K.Basha had driven he trailer from Visakhapatnam. Before reaching Vijayawada, at about 10:30 A.M., the deceased had taken over the charge of driving of the said trailer. The destination of the trailer was Mumbai and the journey was already delayed by seven to eight hours. The first respondent threatened that if the trailer did not reach Mumbai as per the scheduled time, the drivers would not be paid commission. The deceased got filled the diesel tank at a Petrol Bunk at Jawahar Auto Nagar, Vijayawada. While the deceased was on the steering, at the said Petrol Bunk itself, he fell on the steering. Then, A.W.3 - Thota Phanindra, the cleaner, shifted the deceased to Citi Cardiac Hospital, Vijayawada, wherein, the doctors declared him as brought dead. Then A.W.3 lodged a complaint with the police, Patamata P.S., who registered a case in Crime No.338 of 2009 under Section 174 Cr.P.C. Postmortem examination was done at the University Government Hospital, Vijayawada. The appellants, contending that the deceased died due to massive cardiac arrest - as result of stress and strain caused during the course of his employment and the respondents are liable to pay compensation, claimed compensation. The first respondent filed counter and admitted that the deceased was working as driver under him and that he had instructed the deceased to handover the goods at Mumbai within the stipulated time covering the late caused by another driver and that the deceased was having valid lorry driving license on the date of the incident.

3. The second respondent - Insurance Company filed counter and denied the material allegations contending inter alia that there is no nexus between the employment of the deceased and the death of the deceased. It is also their case that the deceased was suffering from ill health and heart ailment prior to the date of incident and that the compensation claimed is highly excessive, arbitrary and unjust.

4. Before the lower authority, B.Koteswaramma - the first appellant herein was examined as A.W.1. She deposed that her husband was driving the trailer during the relevant time and that there was lot of pressure on him to reach Mumbai within time as directed by the first respondent and that the deceased was under stress and strain and that he was traveling from the long distance from Visakhapatnam and died due to massive heart attack during the course of his employment. She filed notarized copies of FIR, Postmortem Report, Inquest report, Driving License, Bill of Loading and Insurance Policy, which were marked as Exs.A.1 to A.6 respectively. She was cross-examined at length to elicit that she does not know whether the Postmortem Report contain any information with regard to the cause of death of the deceased. The owner of the trailer - Goli Srinivasa Rao was examined as A.W.2. His evidence reveals that the trailer was scheduled to reach Mumbai from Visakhapatnam and it was already delayed by 11 hours and that said S.K.Basha - another driver, who was incharge of the trailer at Visakhapatnam signed in the trip sheet. It is also his case that the deceased has signed against the signature of the carrier in Ex.A.5 - Copy of Bill of Loading. A.W.3 - Thota Phanindra, the cleaner of the trailer, deposed that the deceased fell on the steering of the trailer at the Petrol Bunk itself after filling up the diesel tank and that he shifted him to Citi Cardiac Hospital, Vijayawada, wherein, the doctors declared that the deceased was brought dead. He has also deposed that their journey was already delayed by seven to eight hours and that the owner of the trailer had informed them that they would not be paid compensation in case the trailer fails to reach the destination, i.e., Mumbai within time.

5. The lower authority, holding that the appellants herein failed to prove that the deceased died due to massive cardiac arrest and that the postmortem report does not contain the medical opinion of the doctor, rejected their claim. Aggrieved by the same, present appeal has been filed.

6. Learned counsel for the appellants' submitted that the lower authority ought to have considered the entire evidence on record which clearly establishes that the deceased died due to heart attack. It is also his submission that since the journey was already delayed, the deceased was under stress and strain and that the deceased was traveling from Visakhapatnam and they had already travelled more than six hours and that the evidence of A.W.3 - Thota Phanindra, cleaner of the trailer and the documents filed by the appellants' go to establish that the deceased died due to massive heart attack. It is also his submission that there is no contra evidence in this case and that the Insurance Company has not let in any evidence and, therefore, the lower authority ought to have drawn just and reasonable conclusions with regard to the cause of death. It is also his case that there is nothing on record to show that the deceased was previously suffering from heart ailment. It is also his submission that since it is the summary procedure, the lower authority ought to have given findings basing on the principle of preponderance of probability. In support of his contentions, learned counsel had relied upon judgments in case between Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Gurrapu Anjamma1, Divisional Manager, United India Insurance Co. Ltd., Vs. Shanmuga Mudaliar T. and others2, Kothari Group of Financiers, Hyderabad Vs. K.Muralidhar3, Union of India and others Vs. S.Mariyamma and others4, and Ravindra Singh Negi Vs. Workmen's Compensation Commissioner, Chamoli5.

7. Per contra, learned counsel for the second respondent - Insurance Company submitted that the burden lies on the appellants' to prove that the death comes within the definition of the accident and in the absence of any medical evidence, no presumption can be drawn with regard to the cause of death. It is also his submission that no doctor was examined and the postmortem report does not contain the cause of death. In support of his contentions, learned counsel relied upon judgments in case between Mamtaj Bi Bapusab Nadaf and others Vs. United India Insurance Co. Ltd., and others6 and Ram Dev Puri Vs. Trishla Devi and others7 and contends that the appellants' have to prove that the accident arose out of the employment and there is no proximate or direct connection between the death of the workman and his employer.

8. I have considered the above rival contentions. The only point that arises for consideration in this appeal is whether the deceased died as a result of stress and strain in the course of his employment.

9. It is not in dispute that the deceased and one S.K.Basha - another driver were driving the trailer, which was scheduled to reach Mumbai from Visakhapatam. It was a heavy trailer with 18 tyres and 40 feet length. It appears that they started at about 10:30 A.M. from Visakhapatnam on that fateful day. By the time they reached Vijayawada, their journey was already delayed by seven to eight hours. The deceased took charge of driving of the trailer and he was driving the trailer. After filling diesel at the Petrol Bunk at Jawahar Auto Nagar, Vijayawada, the deceased, while on the driving seat, fell on the steering of the trailer at the petrol bunk itself. He was immediately shifted to Citi Cardiac Centre, Vijayawada by the cleaner of the trailer, wherein the doctors of the said hospital declared that the deceased was brought dead. Admittedly, no treatment was given at the said Citi Cardiac Hospital, Vijayawada. Then the said cleaner went to the Police Station, Patamata, and lodged a complaint. The whole controversy is whether there is any nexus or direct connection between the death of the deceased and his employment.

10. The wife of the deceased, the owner of the trailer and the cleaner of the trailer also did not speak anything whether there was any heart ailment to the deceased or he was hail and healthy prior to the date of incident. Admittedly, the journey was delayed. The cleaner of the trailer had specifically deposed that the owner of the trailer had informed them that if the trailer did not reach the destination on time, they would not be paid compensation. It has to be seen that the deceased was only a driver earning Rs.4,000/- per month and if a workman is informed that he would not be paid any compensation, he would certainly feel stress. The trailer was a heavy vehicle and it was loaded with steel reels at Visakhapatnam. It is nothing but natural that the said trailer cannot move fast as other vehicles move. Therefore, it is clear that the evidence on record proves that the deceased was under stress and strain.

11. According to A.W.3 - Thota Phanindra, the cleaner of the trailer, the deceased, all of a sudden, fell on the steering of the trailer and when he was taken to Citi Cardiac Hospital, Vijayawada, the doctors declared that the deceased died due to cardiac arrest. There seems to be nothing to disbelieve his evidence. Admittedly the deceased was not admitted in the said Citi Cardiac Hospital, Vijayawada, and as such no medical treatment was given to him, the question of issuing any certificate from the said hospital does not arise. But unfortunately, the lower authority had given much importance for not examining any doctor from said Citi Cardiac Hospital, Vijayawada and for not producing any medical certificates from the said hospital, when the doctor who saw the deceased and declared that the deceased was brought dead and when the deceased was not admitted in the hospital, the question of producing any medical report from the said hospital does not arise at all. This important factual situation was not taken into consideration. A.W.1 - the wife of the deceased had categorically deposed that her husband died due to massive cardiac arrest. Mere giving suggestions to the wife of the deceased and the cleaner of the trailer that the deceased had not died due to massive cardiac arrest is not sufficient to disprove their evidence.

12. Admittedly, the incident was reported to the police, postmortem examination was conducted and the appellants' have filed a copy of the postmortem report and a copy of Inquest report, but unfortunately, the doctors who conducted the postmortem examination of the deceased did not give any opinion but just mentioned 'opinion is reserved' in the postmortem report. Unfortunately, no steps were taken to obtain subsequent opinion of the doctors who conducted postmortem over the dead body of the deceased.

13. In the instant case, it is most unfortunate that the lower authority, i.e., the Commissioner for Workmens' Compensation Act, who was dealing with the provisions of a beneficial legislation, failed to read the evidence in proper perspective. In the postmortem report column No.8, which deals with the heart and pericardial sac, it was mentioned as 'SOM occlusion in the interior rescinding branch of left coronary artery' and 'atheromatous changes seen'. Thus, the medical terminology noted down in the postmortem report clearly establishes that the deceased died due to heart attack. Though final opinion of the doctors as regards the cause of death of the deceased is reserved, but it is clear that the lower authority failed to read the postmortem report.

14. Non-reading of evidence will result in incorrect conclusions which ultimately lead to perverse findings. The lower authority seems to have forgotten that he is dealing with a beneficial legislation and his carelessness and non-appreciation of evidence in proper perspective resulted in great injustice to the claimants.

15. Learned counsel for the appellant relied on the following decisions. In Depot Manager, Andhra Pradesh State Road Transport Corporation's case (1 supra), the deceased was working as conductor in APSRTC. While he was on duty, due to bad road conditions, he developed chest pain and subsequently expired in the hospital. The issue that came up for consideration is whether the death of the deceased was due to accident. This Court, after referring to several decisions, came to the conclusion that the deceased was on duty when he developed chest pain and died due to heart attack and that the only conclusion that can be drawn is that due to stress and strain and hard working conditions with which the deceased was working since morning 05:00 A.M., he developed chest pain and his employment is a contributory cause and accelerated injury to the heart and he died due to heart attack which arose due to and in the course of his employment.

16. In Laxmibai Atmaram Vs. Chairman and Trustees, Bombay Port Trust8, Chagla, C.J., observed as follows:-

"...But if the employment is a contributory cause, or if the employment has accelerated the death, or if it could be said that the death was due not only to the disease but the disease coupled with the employment, then the employer would be liable and it could be said that the death arose out of the employment of the deceased."

...Accident means mishap or untoward event not expected or designed, that if a person suffers heart attack and dies, it necessarily means that there has been an injury to the heart and that, that event being a mishap not expected, or designed, is an accident and that, if a workman suffers heart attack out of and in the course of employment, then the employer is liable to pay compensation."

17. In Divisional Manager, United India Insurance Co. Ltd.,'s case (2 supra), the Madras High Court observed that the deceased had halted the bus at the stop, stepped out to have refreshments and succumbed to heart failure. The claimants contended that the death occurred while on duty due to over strain arising out of and in the course of employment. It was further observed as follows:- ...The connection between the accident and the employment may be established if the strain had contributed to or accelerated or hastened the accident. It may not be possible at all times to produce direct employment and the injury, but if the probabilities are more in favour of the applicant, then the Commissioner is justified in inferring that the accident did in fact arise out of and in the course of employment."

"...There can be no dispute that the deceased died in the course of the employment since there was no occasion for him to be at the Tiruvannamalai bus stand unless he had been driving the bus. It is futile to contend otherwise. The evidence of the conductor of the same bus, who had seen the deceased fall and die at the very spot where the bus had stopped cannot be ignored. The objections to the claim based on non-filing of the FIR or post-mortem report deserve no consideration. The claimants had pleaded overstrain as having contributed to the death. The accident, the unlooked for mishap, had happened at a spot, where the deceased would not have been but for the fact he was discharging his duty as a driver. It is capable of being attributed to the strain, ordinarily inherent in the discharge of his duty. So the claim falls squarely within the Act."

"...In Mackinnon Mackenzie and Co. Private Ltd.,k V. Ibrahim Mahommad Issak AIR 1970 SC 1906 : 1969 (2) SCC 607 : 1970-I-LLJ-16, the Supreme Court held that: "To come within the Act, there must be a casual relationship between the accident and the employment. The expression 'arising out of employment' is again not confined to the mere nature of the employment. The expression applies to the employment as such - to its nature, to its conditions, its obligations and its incidents. If by reason of any of those factors the workman is brought within the zone of special danger, the injury would be one which arises 'out of employment'. To put it differently, if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course, the workman has exposed himself to an added peril by his own imprudent act."

"And again in the same judgment, the Supreme Court said: "...In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment a well as in the course of employment. But this does not mean that a workman who comes to Court for relief must necessarily prove it by direct evidence...It may be inferred when the facts proved justify the inference...It is of course impossible to lay down any rule as to the degree of proof which is sufficient to justify an inference being drawn, but the evidence must be such as would induce a reasonable man to draw it."

18. It has to be seen that in the above referred case, neither FIR nor postmortem report were filed.

19. In Kothari Group of Financiers, Hyderabad's case (3 supra), the claimant was working as Branch Manager of Kothari Financiers Corporation at Kunool branch. One Mr.Srinivasa Reddy was the guarantor for Smt.Meenakshamma, who purchased the auto, but said Srinivasa Reddy was riding the auto and paying the installments. When said Srinivasa Reddy failed to pay installments and when the claimant - branch manager insisted him to pay the installments, the said Srinivasa Reddy attacked with a knife and caused injuries to the branch manager who claimed compensation under the provisions of the Workmens' Compensation Act. There seems to be no relevance between this case and the case on hand

20. In Union of India and others case (4 supra), the deceased was deputed for training. He was attending training process from 09:00 A.M. to 12:00 noon and 02:00 PM to 05:00 PM. At about 10:00 PM, he developed chest pain. He was shifted to nearby Railway Hospital. From there, he was shifted to the General Hospital at about 03:00 A.M. and he died at about 03:20 A.M. This Court, referring to several judgments, held as follows:- "Training is more arduous than the routine duties of a workman. Whether the deceased/workman was suffering from heart ailment even before he developed chest pain or not, is not on record. At least it was in the knowledge of anybody, including the deceased workman. When once a workman was deputed for training to a different place than that of his original place of work, one has to necessarily stay at a place where he was asked to undergo training and in the present case, perhaps only residential accommodation was provided to the workman in the premises of the Training School, even though no boarding facility was provided to him, as the training classes were being taken up at regular timings, of course, with intervals. There is no apparent contribution on the part of the workman for developing chest pain. In other words, chest pain cannot, under the above circumstances, be termed as 'expected' or 'designed event', not there was any contribution on the part of the deceased workman in that behalf. Hence, it should mean that it was an accident, as contemplated under Section 3 of the Act."

"...Furthermore, it is nobody's case that the workman was already suffering from heart ailment. Myocardiac infraction is in a way an unexpected, uncalled for and a fatal event, which could not be treated at all as 'designed'. As already pointed out by various Courts, the workman need not necessarily explain that earlier he was not suffering from heart ailment and only because of the stress or additional strain during the course of employment - in the present case, the training camp, not it is the case of the other side that the workman had done something which he was not supposed to do, or in a way peculiar to the work entrusted to him, inviting trouble to his own life on his own accord."

21. The judgments relied upon by the Learned standing counsel for the Insurance Company can be distinguished on facts.

22. In Mamtaj Bi Bapusab Nadaf's case (6 supra), the workmen were engaged in unloading maize from a tractor trailer to an underground storage bin. Both the labourers climbed the grocery pit in order to clean the same for storing the maize and while cleaning, they fell into the grocery pit. They shouted from inside that they were suffocating, a rope was released to them but they did not catch it and they died due to asphyxia. The Apex Court confirmed the order of the High Court, which held that the vehicle was not involved in the accident and that the death of the workmen by no stretch of imagination can be said to have proximate or direct connection with the vehicle. It was further observed that "the mere fact that maize was brought to the spot where the workmen had died would not render the insurance company liable in respect of the death". Admittedly, the facts of that case are entirely different from the facts of the case on hand. In the present case, the deceased died while he was in the steering seat.

23. In Trishla Devi and other's case

(7 supra), the claimant claimed that the deceased was employed as driver and the owner of the vehicle denied the same. Moreover, it came on record that the deceased was suffering from chest disease and previously was treated for the same. The vehicle, in which the deceased died, reached the U.P. border, where the deceased, along with the conductor, ate food and spent the night there. On the next day morning, the deceased returned after answering the calls of nature and he developed stomachache. The conductor went to look for a doctor and he could not find any doctor and by the time he reached the deceased, the deceased died. It has to be seen that the deceased was not working whole night and he was taking rest. But in the case on hand, the deceased travelled from Visakhapatnam to Vijayawada sometime before the incident, he took the steering and was actually driving the vehicle at the time of his death.

24. In NTPC/VSTPP, Vindhya Nagar Vs. Smt.Rajwati Panika9, it was held as follows:-

"Workman dying within the premises of the employer, the inference drawn by the Commissioner that death arose out of and in the course of employment was well- founded. Claimant-widow being rustic and illiterate and the proceedings under the Act being summary in nature, strict construction of pleading to deny justice would not be proper. Challenge by employer on the ground that there was discrepancy in the pleading of the claimant and evidence on record cannot be sustained. Strict rules of evidence are not applicable for the proceeding under the W.C. Act which was summary in nature."

25. In Lipton India LTd., Vs. Kokul Ch.Mandal10, it was held as follows:-

"Act is a piece of Social Security legislation, and it is generally accepted that various provisions of the Act ought to receive a liberal interpretation. Since it is Welfare legislation, made for the interests of the poor workmen, in the case of any provision capable of more than one interpretation that which is more favourable to the workman should be adopted"

26. In National Mineral Development Corporation Vs. Bindi Bai11, it was held thus:-

"It was reasonable to hold that the cause of heart attack was physical stress and strain sustained by the workman while working at the height of 150' on the conveyor and thus the 'casual' link was provided for the event of death, which was contingent though unforeseen. It cannot be argued that 'accident' in S.3 should be confirmed to external causes only for the reason that can be known and that insofar as the internal injuries are concerned, it cannot be said with certainty that a particular reason prompted the result and that death was due to 'natural causes' and not 'accident' covered by S.3(1) of the Act."

27. In Brooch Municipality Vs. Raiben Chimanlal12, it was held as follows:-

"Deceased workman performing duties as tractor driver, died of heart disease, work cannot be said not to involve stress and strain. Such type of work would certainly aggravate the disease. Death can therefore be certainly be attributed to employment injury and would also definitely aggravate heart disease."

28. In United India Insurance Co. Ltd., Vs. Yashodharamma and Another13, a Division Bench of Kerala High Court held as follows:- "Driver developing heart attack while driving en route and consequently dying - Held, Drivers' illness though not an external injury, was serious injury to the heart and therefore death from heart attack was personal injury for which employer was liable to pay compensation."

29. In Usha Bai Vs. Yogendra Singh14, it was held as follows:- "Where the claimant contended that the deceased was employed as a driver on the tractor, the employer contended that he was 'Lagua' (agricultural labourer). IT was not in dispute that the deceased was in employment of the employer but the question was whether he was driving the tractor during the course of employment or on his own as contended by the employer. When evidence showed that deceased was usually driving the tractor in addition to other agricultural work, deceased was held to be a workman who died in the accident arising out of and in the course of employment. The Commissioner's finding that he was not employed or the accident had not arisen out of and in the course of employment was perverse ignoring the material evidence and therefore liable to be set aside."

30. Great responsibility lies on the authorities to read the entire evidence on record. Judges must be conscious about the object of the Act and the provisions stipulated therein. He must honestly and sincerely read the entire material placed before him. If the recitals of important document which clinches the issue is not read and conclusions are drawn without reading the evidence or contra to the evidence on record, then great injustice would be done to the parties. We should not forget that 40% of Indians still come under below poverty line. They may not afford to approach Appellate Courts and many of them may not be knowing about the provisions of the Legal Services Authorities Act, 1987 or any other authority to decide the cases. The way in which a Judicial Officer works reveal his honesty and sincerity. An officer who does not and cannot read the evidence on record in proper perspective will not be a fit person to hold the post. The primary duty of a Judge is to record the evidence honestly and read it completely with great care and caution with analytical approach. He must visualize the situation by stepping into the shoes of the witnesses and visualize what would be the natural conduct and probable reaction of that person present at the place of occurrence, with realistic approach. He should study the socio-economic standard of the witness. He should not expect that a rural artisan or a labourer would react in the same manner as in a case of an I.A.S. Officer or a business man. A Judge must be conscious about human suffering and human feeling. What a pathetic situation it would be when a woman with minor child or a sick person is forced to travel miles together (without money for meeting his minimum charges) is asked to come again and again to the Court just for the sake of recording her presence and ultimately inform to her about adjournment of the case late in the evening. The Apex Court, in case between Peoples Union for Democratic Rights Vs. Union of India15 observed as follows:

"...The time has now come when the Courts must become the Courts for the poor and suffering masses of this country. They must shed their character as upholders of the established order and the status quo. They must be sensitized to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations."

31. The shining of justice will be increased if the Judge rendering justice has humane approach, kind and honest heart. Rejecting the claims of the poor on mere technical grounds without reading and understanding the evidence or relevant provisions of the Act would result in great injustice to the poor. Justice not tendered with mercy cannot be called real and substantial justice. Brain without heart cannot make a complete and perfect gentleman (woman). Time and again, noble judges have been insisting that mere technical approach should not result in denying substantial justice. India does not mean Ratan Tata, Goenka or Sibu Soren, but India includes a minor girl who is a victim of trafficking, a minor boy forced to become a bonded labourer, a wife of a farmer with minor children where husband committed suicide because of spurious seeds or pesticides. India means all those - we should not forget that. It is the responsibility of all the wings - Executive, Legislature and Judiciary to see that JUSTICE - Social, Economic and Political is guaranteed to all the citizens of this country. As observed by the Apex Court, if steps are not taken to unearth the black money lying in the foreign banks, great economic justice can be done to the society. A dare step of unearthing black money would solve many problems being faced by this Country. But alas, except mere promises and pronouncements, nothing substantial has been done and we have to await for a birth of another Mahatma Gandhi or another Bhagat Singh with optimism.

32. In view of the above and for the foregoing reasons, as far as the liability of the respondents is concerned, the point is answered in favour of the claimants holding that the deceased died due to heart attack during the course of his employment.

33. For hearing of both the learned counsel on the point of awarding just and reasonable compensation to the claimants, post on 04.02.2011.

____________________________

JUSTICE B.CHANDRA KUMAR

02nd February, 2011

Bvv

Date:18.02.2011

34. Heard both the counsel.

35. Admittedly, the accident occurred on 12.7.2004. In view of the same, I am not inclined to remand the matter for the purpose of deciding the amount of compensation.

36. The compensation has to be determined in accordance with Section 4 (1) of the Act, which is as follows:

4.Amount of compensation:-- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:--

(a) where death results from the injury.

an amount equal to fifty per cent of monthly wages of the deceased workman multiplied by the relevant factor;

or

an amount of eighty thousand rupees, whichever is more.

(b) where permanent total disablement results from the injury an amount equal to si an amount of equal to sixty percent of the monthly wages of the injured workman multiplied by the relevant factor ; or

an amount of ninety thousand rupees, whichever is more;

37. Therefore, 50% of the monthly wages of the deceased have to be taken into consideration. The salary of the deceased was Rs.4,000/- per month. From this, 50% of the same comes to Rs.2,000/-. According to the postmortem report and inquest report, the age of the deceased is 40 years, the appropriate multiplier is 184.17. The same is multiplied with the half of the monthly wages of the deceased, total amount of compensation comes to Rs.3,68,340/-.

38. In support of his contention, the claimants are entitled for an interest from the date of filing of their application, the learned counsel for the claimants has relied on the judgment of the Supreme in case between PRATAP NARAIN SINGH DEO V. SHRINIVAS SABATA AND ANOTHER16. However, subsequently in case between NATIONAL INSURANCE CO.LTD., VS. MUBASIR AHMED AND ANOTHER17, the Apex Court seems to have taken a different view and held that the interest is payable under Section 4-A (3) if there is default in paying the compensation due under this Act within one month from the date it fell due and that the compensation becomes due on the basis of adjudication of the claim made. Again the Apex Court has considered the issue in case between ORIENTAL INSURANCE COMPANY LIMITED VS. MOHD.NASIR AND ANOTHER18, the Apex held as follows: "No doubt interest would be payable from the date of default and not from the date of award of compensation.

Section 4-A(3) of the Workmen's Compensation Act, 1923 is penal in nature. It, however, does not take into consideration the chargeability of interest or various other grounds including the amount, which the claimant would have earned if the amount of compensation would have been determined as on the date of filing of the claim petition. The Act does not prohibit grant of interest at a reasonable rate from the date of filing of the claim petition till an order is passed. Only when Section 4-A(3) would be attracted, a higher rate of interest would be payable where for a finding of fact as envisaged therein has to be arrived at. Only because in a given case, penalty may not be held to be leviable, by itself may not be a ground not to award reasonable interest. It is held that interest will also be payable at the rate of 71/2% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner."

39. In view of the same, I consider just and reasonable to follow the latest decision of the Apex Court cited above and I award interest at the rate of 7.5% per annum from the date of filing of the application, till the date of award i.e., till 15.2.2007, which is the date of award passed by the Commissioner. The Insurance Company is directed to deposit the entire amount within a period of two months from the date of receipt of a copy of this order. Failing which, the Insurance Company shall be liable to pay 9% interest from the date of the award till the date of realization. Accordingly, the order passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Vijayawada, dated 15.2.2007, stands merged with this order and the award is deemed to have been passed accordingly w.e.f 15.2.2007.

1 2001 ACJ 1885

2 2003 (I) LLJ 776

3 2004 (3) ALD 68

4 2004 (4) ALD 599

5 2005 (III) LLJ 659

6 2010 ACJ 2661

7 2010 ACJ 2230

8 (1954) 1 LLJ 614

9 2006 (IV) LLJ (Suppl) NOC 286 (MP) (DB)

10 1982 (1) LLJ 255 (FB) (Cal.)

11 1998 (1) LLJ 85 (MP)

12 1993 (III) LLJ (Supp) 90 (Guj.)

13 1990 (1) LLJ 387 (Ker.) (DB) = 1989 LLN 125 = 1989 ACJ 1075 14 2002 (III) LLJ 87 (MP) (DB)

15 AIR 198 SC 1473

16 1976 A.C.J. 141

17 (2007) 2 Supreme Court Cases 349

18 (2009) 6 Supreme Court 280