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Judgment
Rakesh Kumar Garg, J.
CM No. 102-CII of 2012
For the reasons mentioned in the application, delay of 36 days in filing the appeal is condoned.
CM stands disposed of.
FAO No. 40 of 2012 (O&M)
The appellants filed a claim application before the Commissioner, Patiala, under the Employee''s Compensation Act, 1923, stating that Lakhbir Singh @ Pappu had died on the intervening night of 2/3.12.2009 during the course of his employment with respondent No. 1 while working as driver. The vehicle in question was insured with respondent No. 2 and the deceased was getting salary of Rs. 12,000/- per month besides Rs. 200/- per night for out station, meal and other expenses. The said claim application was contested by the respondents. The competent Authority vide impugned order dated 29.4.2011 allowed the claim application holding that claimant/appellants were entitled to receive an amount of Rs. 3,68,340/- (taking the maximum monthly wages of the deceased at Rs. 4,000/- and applying a factor of 184.17 taking the age of deceased as 40 years), towards compensation from respondents No. 1 and 2 who were liable to pay jointly and severally. The liability to pay statutory interest u/s 4A(3)(a) for making a default in paying the compensation was also imposed upon the respondents @ 6% per annum from the date of accident till its actual realization on the compensation amount.
Still aggrieved from the aforesaid order, the claimants have filed the instant appeal.
Learned counsel for the appellants has submitted before this Court that compensation granted to the claimants is on the lower side as even the competent authority has held that income of the deceased workman was Rs. 8,000/- per month whereas the same has been restricted to Rs. 4,000/-.
The argument raised is liable to be rejected as under the provisions of Explanation II to Section 4(1) of the Workmen''s Compensation Act, 1923, the maximum wages of a workman are to be taken at Rs. 4,000/- per month while determining compensation under the provisions of the said Act.
At this stage, it may be noticed that the provisions of the Employee''s Compensation Act have come into force w.e.f. 18.1.2010 whereby the limit of maximum income of a deceased workman for determining compensation has been raised from Rs. 4,000/- to Rs. 8,000/-. Since in the instant case, accident has taken place prior to the implementation of the aforesaid provisions and the provisions of the aforesaid Act being substantive cannot be applied retrospectively, no fault can be found with the determination made by the competent Authority.
Faced with this situation, counsel for the appellants has submitted that the claimants were entitled to compensation on the date it fell due i.e. 30 days from the date of accident, however, the respondents have failed to provide the deceased/claimants any financial help promptly. Therefore, they were liable to pay penalty as provided under the Act and thus, a following substantial question of law arises in this case:
As to whether the appellants are entitled to amount of statutory penalty as provided under the Act, 1923.
However learned counsel representing the Insurance Company has vehemently argued that there is no discussion in the impugned order by the competent Authority in this regard and even otherwise, liability to pay such a penalty is upon the employer and not the insurer. He has further brought to the notice of this Court that the penalty can be imposed only after issuing a show cause notice to the employer/respective parties.
Keeping in view the aforesaid submissions made, liberty is granted to the appellants to move an application within 15 days from the date of receipt of certified copy of this order to the competent Authority under the Act for determining the question of penalty payable to them. If any such application is made, as stipulated above, the same shall be decided on merits by the Competent Authority in accordance with law. With the aforesaid observations, this appeal is disposed of.