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Judgment
Matter comes upon application under Order 22 Rule 4 read with Rule 9 CPC for setting aside abatement of appeal qua respondent No.1 and taking his
legal heirs on record.
The application is filed beyond limitation and even after a lapse of one and half years from the date of divulging information about death of first
respondent by his legal heirs.
Be that as it may, learned counsel appearing for respondents has not seriously contested the application.
In view thereof, taking a benevolent view in the matter, the application is allowed. Abatement of appeal is set aside and legal heirs of first respondent
are taken on record.
Learned counsel for the appellant has also filed amended cause title, which is also taken on record.
With the consent of learned counsel for the parties, matter is heard finally at this stage.
The instant appeal is filed by appellant under Section 30 of the Employees’ Compensation Act, 1923 (for short, ‘Act of 1923’) to assail
impugned judgment and order dated 07.03.2007, passed by Employees’ Compensation Commissioner, Pali (for short, ‘learned
Commissioner’). The learned Commissioner, by the judgment and order impugned, adjudicated the claim of workman-Dungar Ram for injuries
suffered by him in an accident arising out of and in the course of employment and awarded compensation to the tune of Rs.1,47,586/- with interest
@12% per annum. Besides, awarding compensation and interest, learned Commissioner also ordered for payment of 50% penalty on the amount of
compensation. The liability to pay compensation and interest was fastened on second respondent-Insurer but regarding penalty part, the appellant
employer was held liable.
The facts, in brief, are that while in employment of the appellant, when the petitioner was working on thresher he suffered injury, which resulted in
amputation of his right hand. As the injury was suffered by workman by accident arising out of and in the course of employment, he laid a claim and
quantified compensation to the tune of Rs.2,21,004/- with penalty of 50% amount and interest @18% per annum. The claim petition was contested by
appellant-employer as well as Insurer. Learned Commissioner, by the impugned order, partly allowed the claim of respondent-workman and awarded
aforementioned compensation, interest as well as penalty. For assailing the impugned judgment and award, many grounds are urged by the appellant
besides urging two substantial questions of law.
I have heard learned counsel for the appellant and perused the impugned judgment and order threadbare on the touchstone of the provisions contained
in the Act of 1923.
There remains no quarrel that under the Act of 1923, statuary appeal is provided under Section 30 but then the said appeal cannot be preferred by an
aggrieved individual as a matter of right and the Legislature, in its wisdom, has put certain riders, more particularly, that such appeal is entertainable
only when there is substantial question of law involved in the matter.
The factum of employment and sufferance of injuries by the workman in accident arising out of and in the course of employment is duly established
before learned Commissioner by the workman with tangible evidence and accordingly the learned Commissioner recorded its affirmative finding on
Issue No.1. The learned Commissioner also noticed that there is no dichotomy about age of the workman as he himself admitted his age as 38 years.
Switching on to wages of the workman per mensum, learned Commissioner relied on the requisite evidence showing wages @Rs.3000/- per mensum.
Taking into account all these facts and relying on some of the decisions of Supreme Court, learned Commissioner fastened liability on insurer to pay
compensation and interest but for delayed payment of the amount of compensation liability to pay penalty was fastened on the employer.
In totality, it is a pure and simple case of findings of fact recorded by learned Commissioner and the substantial questions of law proposed by appellant
are not even questions of law much less substantial questions of law. The law is trite that for delayed payment of compensation amount, liability to pay
penalty has to fastened on the employer. Reliance in this behalf can be profitably made to a judgment of Supreme Court in case of Ved Prakash Garg
Vs. Munni Devi [1997(8) SCC 01]. It is also a matter of serious concern that the appeal is pending since 2007 and during pendency of the appeal the
poor workman has died and now he is represented through his legal heirs and still a legitimate amount of compensation has not been paid to his legal
heirs.
Therefore, considering all these aspects and the fact that instant appeal is bereft of any question of law much less substantial question of law, I find no
reason to interfere with the impugned judgment and order.
Resultantly, the appeal fails and same is hereby rejected.