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CA/3685/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR INTERIM RELIEF No. 3685 of 2010
In
FIRST
APPEAL No. 794 of 2010
=========================================================
BHARATBHAI
HIRABHAI PARIKH & 1 - Petitioner(s)
Versus
BECHARBHAI
KARSHANBHAI JOGATIYA & 1 - Respondent(s)
=========================================================
Appearance
:
MR
SHIRISH JOSHI for
Petitioner(s) : 1 - 2.
MS JAYSHREE C BHATT for Respondent(s) :
1,
MS TARAMANI B KHALAS for Respondent(s) : 1,
None for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 10/05/2010
ORAL
ORDER
Rule.
Ms. Bhatt, learned advocate for the opponent, waives service of
notice of admission of appeal and Rule.
Heard
Mr. Joshi, learned advocate for the applicants and Ms.Bhatt, learned
advocate for the opponent No.1.
Mr.Joshi
has raised contention challenging the status of the deceased as a
workman within meaning of Section 2(n) of the Workmen’s Compensation
Act, 1923. Mr.Joshi has also raised challenge with regard to the
imposition of obligation to pay interest from
the date of accident and has also challenged the direction requiring
payment of penalty. He has submitted that until the learned
Commissioner adjudicated the dispute and came to the conclusion
against the applicants, any liability to pay the compensation was not
crystallized, hence, liability to pay interest would not arise.
Having
regard to the contentions raised against the award impugned in the
appeal, ad-interim relief in terms of para-2(a) is granted.
In
view of the condition precedent prescribed under the Act, the award
amount of Rs.2,06,250/- (being the principal amount, interest and
penalty) has been deposited before the learned Commissioner.
Having
regard to the fact that one of the claimants is a widower
and would be entitled to compensation only if he establishes that he
was wholly or in part dependent on the earnings of
the deceased wife/workman, the widower (i.e. original applicant
No.1), would not fall within the purview of the said definition of
the term dependant
under Section 2(d) of the Act. During the hearing, it has been
submitted that the applicant No.2 has also now become major and is in
employment with a hospital.
So
far as the claimant No.1 is concerned, prima facie, there does not
appear to be any evidence on record to show that he was dependent on
the income of the deceased and the claimant No.2, as noted earlier
is, after becoming major, in employment and considering the nature
and scope of challenge against the award, the Court is not inclined
to pass any order regarding disbursement at this stage.
Hence,
the learned Commissioner shall forthwith invest the entire deposited
amount in fixed deposit in the name of Registrar of the Court. The
fixed deposit shall be taken out, initially, for a period of six
months and thereafter, if need be the fixed deposit may be renewed
from time to time. The claimants will not be allowed to create any
charge or raise loan against the FD, in any manner whatsoever. The
interest shall be accrued and will not be disbursed. The Commissioner
shall also independently calculate the payable amount as per the
award and shall find out as to whether the appellant
has deposited the total amount payable as per the award. Differently
put, the Commissioner shall calculate and determine as to whether the
penalty and the interest portion have been properly calculated by the
appellant until the date on which the amount came to be deposited or
not. If there is any shortfall, the applicant shall be asked to make
the payment of the difference amount within a period of one week from
the order of the Commissioner. The applicant shall immediately comply
with such order.
With
the aforesaid clarifications and observations, the application stands
disposed of. Rule is made absolute to the aforesaid extent.
(K.M.
Thaker, J.)
rakesh/
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