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Judgment
The appellants are dependents of deceased Umakant Narwade, who expired on 05.12.2007. It is not in dispute that while he was in employment with respondent no.1 as a driver, he met with a road accident on 29.07.2007. He was initially admitted to a private hospital named Siddheshwar Multi Facility Hospital Solapur. Thereafter, he was shifted to Civil Hospital at Solapur on 31.07.2007. He was discharged on 04.11.2007. He has suffered following injuries for which he has undergone surgical procedure at Civil Hospital at Solapur :
Neck femur, (rt) cII shaft femur (rt),
CII communited Patala (rt)
CII Tibia (rt) promixmal U3 rd.
The deceased was discharged against medical advice from Civil Hospital on 04.11.2007. A month thereafter i.e. on 05.12.2007, he died at his residential house. The widow, children and mother of deceased preferred an application seeking compensation on account of demise of deceased during course of his employment vide W.C.A. No.16 of 2008. The learned Compensation Commissioner has dismissed the claim petition on the ground that after demise of the deceased, post-mortem was not conducted and as such, there was no evidence to infer that the deceased had expired due to injuries suffered in road accident.
The appeal was admitted vide order dated 22.01.2018 on the following substantial questions of law :
A) Whether, in the facts and circumstances of the present case, the fatal accident can be said to be arising out of and in the course of employment of deceased Umakant?
B) Whether, the Commissioner was justified in refusing to answer the issue numbers 6, 7, 8 and 9, on the ground that the claimants failed to prove that Umakant died in an accident arising out of and in the course of his employment as driver?
In the considered opinion of this Court, learned Compensation Commissioner ought to have considered the evidence on record in its totality. The fact of accident is not in dispute. Similarly, the injuries suffered by the deceased are also not disputed. Even if it is assumed that the deceased did not die on account of injuries suffered by him in the said accident, from the nature of injuries it cannot be disputed, the injuries are sufficient to arrive at a conclusion that the same would result in 100% loss of earning capacity of a driver. The deceased had suffered multiple fracture injuries in his right leg and was incapacitated to perform the said work. If we go by the relevant provisions, even if a claim petition was filed as injury claim during lifetime of the deceased, the compensation awarded would be more than compensation to be awarded against the death claim. In that view of the matter, in the considered opinion of this Court, learned Compensation Commissioner was swayed by irrelevant consideration in rejecting the claim preferred by the appellants. This Court is also of the opinion that having regard to the nature of injuries and prolonged treatment, there would be a presumption that the deceased expired due to injuries suffered in the road accident. In that view of the matter, the appeal deserves to be allowed by answering the substantial question of law no. (A) in favour of the appellants.
Normally, the case should have been remanded to learned Compensation Commissioner for answering the issues relating to computation. However, the accident has occurred in July-2007 and deceased had expired in December-2007. The claim petition was filed in the year 2008. Having regard to the aforesaid, this Court is not inclined to remand the matter for the purpose of computation. The deceased was 30 years and 2 months old at the time of his sad demise. The factor of 207.98 will be relevant factor as per Schedule-IV of the Employees Compensation Act, 1923 for determining the amount of compensation. At the relevant time, the upper limit of income of the deceased employee was fixed at Rs.4,000/-. In view of Section 4(1A) of the Act, 50% deduction will have to be made from monthly wages of the deceased for the purpose of computation of compensation.
In view of the above, total amount of compensation payable will be Rs.4,15,960/-. In addition to this, the appellants will also be entitled for interest @ 12% p.a. in view of Section 4A of the Act. In view of the above, the appeal is allowed in following terms :
Respondent nos.1 and 2 are jointly and severally directed to pay compensation of Rs.4,15,960/- to the appellants along with interest @ 12% p.a. from the date of accident i.e. 29.07.2007 till date of realization of the said amount.
Issue show cause notice to respondent no.1 as to why 50% of penalty as contemplated under Section 4A of the Employees Compensation Act, 1923 should not be imposed against him. Notice is made returnable on 30.09.2026. Learned advocate waives notice for respondent no.1.
Parties are directed to appear before the Compensation Commissioner and Civil Judge Senior Division, Osmanabad/Dharashiv on 30.09.2026.
Parties to note that separate notice for appearance will not be issued.
The learned Compensation Commissioner and Civil Judge Senior Division, Osmanabad/Dharashiv is directed to decide the question of payment of penalty on its own merits in accordance with law.