AI Structured Summary
Not yet generated for this judgment
Judgment
These appeals arising out of a common award, therefore, they are being heard analogously and disposed of with a common order.
Challenge in these appeals under Section 30 of the Employees Compensation Act, 1923 (for short Act of 1923) is an order/award dated 11.09.2014 passed in Case No. 19/ W.C.Act/2012 (Fatal) passed by learned Commissioner, Employee’s Compensation Act, Labour Court No.1, Raipur, District- Raipur (CG). By the impugned order/award, the learned Commissioner was pleased to award Rs.4,07,700/- as compensation to the claimant with interest @ 12% from 28.04.2010. Parties are referred to their status before the learned commissioner.
The claimant had filed an application under Sections 4, 10 & 22 of the Act of 1923 on account of death of his son deceased Bablu @ Parmatma who died during the course of employment with original respondent No.1/Employer. As per claim application, the claimant is the mother and respondent No.1 was the employer of the deceased. Respondent No.1/employer took the Telibandha Pond on lease and does the work of rearing, producing and selling fish. Telibandha pond is the property of original respondent No.2/Municipal Corporation and an agreement was also executed for that purposes. The deceased Bablu @ Parmatma was employed as a Watchman in Telibandha Pond. On 27.03.2010 while working as a watchman in Telibandha Pond, he suddenly got electrocuted due to which he fell into the pond and drowned. As a result, he died on the spot. The accident was reported in Police Station Telibhandha on the same day. At the time of the accident, the age of deceased Bablu @ Parmatma was 32 years and monthly wage was Rs.4000/-. The claimant was dependent on the deceased and the compensation on account of the death of the deceased has not been paid to her by original respondents. Hence she claimed total compensation of Rs. 4,12,700/- jointly and severally from the original respondents and she is also entitled to receive 12% interest and 50% penalty.
Original respondent No.1 has filed his written statement and denied the averments made in the claim application and pleaded that the deceased was never employed with him. It was further pleaded that in order to obtain the compensation, the present claim application has been filed and the claimant is not entitled to receive the compensation. Original respondent No.2 also filed his written statement except the admitted facts, denied the averments of the claim application and it was pleaded that the deceased was not working under employment of Municipal Corporation and claim application is not maintainable against it, hence prayed for dismissal of the claim application. On the basis of pleadings of both the parties, the learned tribunal framed following issues:-
“1. Whether the deceased Bablu @ Parmatma die as a result of an accident while performing his duty under the original respondents ?
Whether the age of employee was 32 years and monthly salary was Rs.4000/- at the time of accident?
Whether original respondents jointly and severally is liable to pay compensation to the tune of Rs.4,12,700/-?
Whether there was no relationship of employer and employee between original respondent No.1 and deceased Bablu @ Partmatma?
Whether original respondent No.2 is not liable to pay compensation on account of grounds stated in the written statement ?
Whether original respondents are liable to pay penalty and interest?
Whether the claimant is a legal dependent of the deceased/ employee?
Relief and cost?
The issues framed by learned Commissioner have been decided in favour of claimant and against the original respondents. While deciding the issue No.3 the learned Commissioner held that the amount of compensation of Rs.4,07,700/- has to be paid by original respondent No.2 and thereafter the same shall be recovered from original respondent No.1 and also awarded 12% interest from 28.04.2010 one month after the date of incident, the same shall be recoverable from original respondent No.1.
MAC No.1089 of 2015 was admitted for hearing on the following substantial question of law vide order dated 01.04.2016:-
“ Whether the Commissioner, Workman Compensation was justified in fastening liability on the appellant to pay compensation by holding that Bablu @ Parmatma died during the course of employment of the appellant ?”
Mr. H. B. Agrawal, assisted by Mr. Pankaj Agrawal, counsel for respondent No.2 in MAC No.200 of 2016 and counsel for the appellant in MAC No.1089 of 2015 vehemently argued that the learned Commissioner has committed an error of law in awarding the compensation against the appellant/municipal corporation directing to pay the compensation and to recover the same from the original respondent No.1. He further submits that admittedly the deceased was not under the employment of the appellant/original respondent No.2 hence, this finding is absolutely unjustified. Therefore, he submits that the substantial question of law may be decided in favour of appellant/original respondent No.2 and it may be exonerated from payment of compensation including the interest.
On the other hand, Ms. Sareena Khan, Counsel for the appellant in MAC No.200 of 2016 and counsel for respondent No.1 in MAC No.1089 of 2015 supports the award impugned to be just and proper and submits that there is no illegality in passing the award and fastening the liability upon the Municipal Corporation and to recover it from the original respondent No.1 as the Act of 1923 is benevolent legislation.
Ms. Prachi Singh, Counsel for respondent No.1 in MAC No.200 of 2016 and Counsel for respondent No.2 in MAC No.1089 of 2015 also supports the award impugned to be just and proper and needs no interference in the appeal.
After hearing learned counsel for both the parties, going through the pleadings and other material available on record, this Court is of the opinion that following substantial question of law is involved in MAC No.200 of 2016:-
“ Whether the learned Commissioner has committed an error of law in awarding any interest from 28.04.2010 i.e. after one month from the date of accident ?”
From the evidence available on record, it is manifest that as per the pleadings the deceased was under the employment of original respondent No.1. Though respondent No.1 denied the same, however, from the evidence available on record, particularly from the Panchnama, the learned Commissioner came to a categorical conclusion that in the Panchnama, it has come on record that the deceased was working as a Watchman in the Telibandha Pond which is being used for purposes of rearing, producing and selling fishes and employment of the deceased with original respondent No.1 was found to be proved. The original respondent No.2 filed his written statement and admitted the fact that Telibhandha Pond is the property of Municipal Corporation and for the purposes of fishing, the same is being leased by tender to various cooperative societies and no evidence was led by the Commissioner to substantiate that the Telibandha pond was not leased to respondent No.1 for the purposes of fishing. Therefore, from the evidence available, it appears that pond was leased by appellant/ original respondent No.2 for the purposes of fishing, however the fact remains as per pleadings and evidence available on record that the deceased was not under the employment of appellant/original respondent No.2, hence, it cannot be held liable for payment of compensation. From the record, it appears that the entire amount of compensation has been paid by the appellant/municipal corporation. The learned Commissioner has granted liberty and passed an order of pay and recover in favour of appellant in MAC No.1089 of 2015 and being a benevolent legislation, this Court is not inclined to disturb that finding. Hence substantial question is decided in favour of the appellant and it is held that appellant is not liable for payment of any compensation in MAC No.1089.2015 maintaining the order of pay and recover. So far the interest part is considered, the appellant is not liable to pay the interest awarded by learned Commissioner which shall be paid by original respondent No.1/Prathmik Macchuwa Sahkari Samiti from the date of accident in view of judgment of Hon’ble Supreme Court in case of Saberabibi Yakubbhai Shaikh and others v. National Insurance Company Limited and others reported in (2014) 2 SCC 298. The substantial question of law in MAC No.200/2016 is answered accordingly in favour of appellant.
Appeals are partly allowed.
No order as to cost.