{"id":188032,"date":"2009-09-02T00:00:00","date_gmt":"2009-09-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/udhav-rangnathrao-pawar-vs-sheshrao-ramji-jogdand-on-2-september-2009"},"modified":"2016-04-28T04:07:30","modified_gmt":"2016-04-27T22:37:30","slug":"udhav-rangnathrao-pawar-vs-sheshrao-ramji-jogdand-on-2-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/udhav-rangnathrao-pawar-vs-sheshrao-ramji-jogdand-on-2-september-2009","title":{"rendered":"Udhav Rangnathrao Pawar vs Sheshrao Ramji Jogdand on 2 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Udhav Rangnathrao Pawar vs Sheshrao Ramji Jogdand on 2 September, 2009<\/div>\n
Bench: Ravi K. Deshpande<\/div>\n
                                           1\n\n\n                   IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n                              BENCH AT AURANGABAD\n\n\n\n\n                                                                         \n                            FIRST APPEAL NO.1044 OF 2009\n\n\n\n\n                                                 \n     Udhav Rangnathrao Pawar,\n     Age 53 years, Occ. Business,\n     r\/o Sambar, Tq. Parbhani,\n\n\n\n\n                                                \n     District Parbhani.                                        ..Appellant\n\n\n     Versus\n\n\n\n\n                                     \n     1. Sheshrao Ramji Jogdand,\n                     \n     Age 48 years, Occ. Labour,\n     R\/o Gour, Taluka Purna,\n     District Parbhani.\n                    \n     2. The Branch Manager,\n     New India Assurance Co.Ltd.,\n      \n\n     Yashodeep Buioding,\n     Nanalpeth, Parbhani.                                      ..Respondents\n   \n\n\n\n                                         ...\n     Advocates appearing for :\n\n\n\n\n\n     Appellant: Shri Girish Rane,\n     Respondent No.1 : Shri S.B.Ghatol Patil,\n     Respondent No.2 : Served.\n\n\n\n\n\n                                         ...\n\n\n\n                                         CORAM : R.K.DESHPANDE, J.\n<\/pre>\n
                                         Reserved on : August 17, 2009
\n                                         Pronounced on : September 2, 2009.\n<\/p>\n
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\n                                            2<\/span><\/p>\n
     JUDGMENT :-\n<\/p>\n
     1.             This appeal is filed by the original respondent No.1, who is<\/p>\n
     the owner of the Tempo No. MH-22-2167, challenging the judgment and<\/p>\n
     award dt. 7.2.2009 passed by the learned Civil Judge S.D. and Ex-officio<\/p>\n
     Commissioner for Workmen’s Compensation, at Parbhani in N.F.A. No.20 of<\/p>\n
     2007.     By this award the appellant \/ owner is directed, along with<\/p>\n
     respondent No.2 New India Assurance Company Ltd., to pay the amount of<\/p>\n
     Rs.90,000\/- jointly and severally to respondent No.1 claimant. It has further<\/p>\n
     directed the appellant to pay simple interest at 12 per cent per annum on<\/p>\n
     the decretal amount of Rs.90,000\/- from the date of the incident i.e. .\n<\/p>\n
     12.2005 till its full liquidation. It has further directed the appellant to pay<\/p>\n
     Rs.45,000\/- towards penalty.\n<\/p>\n
     2.             The appellant has challenged this award to the extent of<\/p>\n
     directing the appellant to pay simple interest at the rate of 12 per cent per<\/p>\n
     annum on the decretal sum from the date of incident i.e. 2.12.2005 and<\/p>\n
     also to the extent it directs the appellant to pay penalty of Rs.45,000\/-,<\/p>\n
     which is 50% of the total amount of compensation. The order to the extent<\/p>\n
     it holds the appellant and respondent No.2 jointly and severally liable to<\/p>\n
     pay the compensation o the tune of Rs.90,000\/- to respondent No.1, has<\/p>\n
     not been challenged.\n<\/p>\n
     3.             The facts, in brief, leading to the present appeal are as<\/p>\n
     under:-\n<\/p>\n
                    Respondent No.1 \/ claimant filed a petition on 24.4.2007,<\/p>\n
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\n                                            3<\/span><\/p>\n
     under Section 19 read with Section 22 of the Workmen’s Compensation Act,<\/p>\n
     1923 (hereinafter, “the said Act”, for brevity), registered as N.F.A.No. 20 of<\/p>\n
     2007 in which the appellant was added as respondent No.1 and the<\/p>\n
     insurance company was added as respondent No.2. Respondent No.1, in<\/p>\n
     his claim petition, alleged that the appellant is the owner of the Tempo<\/p>\n
     bearing No. MH-22-2167, which was insured with respondent No.2<\/p>\n
     insurance company. Respondent No.1 alleged that he was employed by<\/p>\n
     the appellant as a cleaner \/ labour on the said Tempo.          While the said<\/p>\n
     Tempo was proceeding towards Parbhani, one Balasaheb Pawar, who was<\/p>\n
     driving the said Tempo, lost his control at 1.15 a.m. on 2.12.2005, near<\/p>\n
     Deogaon Phata, as a result, the Tempo toppled down and respondent No.1,<\/p>\n
     who was in Tempo, sustained injuries to his hand, ribs and spinal cord. It<\/p>\n
     was alleged that the report was lodged at Police Station Jintoor, where the<\/p>\n
     offences under sections 279 and 337 of the Indian Penal Code were<\/p>\n
     registered against the driver Balasaheb, vide Cr.No. 218 of 2005. It was<\/p>\n
     alleged that respondent no.1 was admitted at Civil Hospital Parbhani, for<\/p>\n
     two days and thereafter, was shifted to Bhandari Hospital, Nanded.\n<\/p>\n
     4.            The Respondent No.1 claimed that he was aged about 45<\/p>\n
     years on the day of the incident and was earning Rs.4,000\/- per month. He<\/p>\n
     claimed total compensation of Rs.4,06,656\/- inclusive of Rs.50,000\/-\n<\/p>\n
     towards the medical expenses incurred by him.            He alleged that he<\/p>\n
     suffered an injury due to rash and negligent driving of said Balasaheb<\/p>\n
     Pawar. He alleged that he suffered an injury, as a result of accident, which<\/p>\n
     occurred out of and in the course of his employment with the appellant.\n<\/p>\n
     Respondent No.1 further claimed an amount of interest at the rate of 12<\/p>\n
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\n                                           4<\/span><\/p>\n
     per cent per annum on the amount of compensation, from the date of<\/p>\n
     accident i.e. 2.12.2005 and also claimed penalty to the extent of 50 per<\/p>\n
     cent of the total amount of compensation.\n<\/p>\n
     5.            The appellant \/ owner filed his written statement and denied<\/p>\n
     the claim. Appellant denied that the accident occurred out of and in the<\/p>\n
     course of an employment of respondent No.1 as a Cleaner \/ Labour, as<\/p>\n
     alleged.   The appellant denied his liability and also disputed the<\/p>\n
     relationship of master and servant or employer and employee between the<\/p>\n
     appellant and respondent No.1. Alternatively, the appellant submitted that<\/p>\n
     the tempo was insured with respondent No.2 insurance company and if at<\/p>\n
     all any liability to pay compensation arises, it is respondent No.2 company,<\/p>\n
     which is liable to pay the same in terms of the policy, in respect of the<\/p>\n
     vehicle.\n<\/p>\n
     6.            The Commissioner decided the claim of respondent No.1 by<\/p>\n
     his judgment and award dt.7.2.2009. It was held that respondent No.1 was<\/p>\n
     an employee of the appellant and he sustained injuries out of and during<\/p>\n
     the course of the employment. It was also recorded that respondent No.1<\/p>\n
     suffered injuries due to rash and negligent act of the driver of the vehicle.\n<\/p>\n
     The Commissioner, although assessed the compensation payable to the<\/p>\n
     respondent No.1 at Rs.40,665\/- directed to pay the compensation of Rs.\n<\/p>\n
     90000\/- jointly and severally by the appellant and respondent No. 2, in view<\/p>\n
     of the provisions of Section 4(1)(b) of the said Act, to respondent No.1. The<\/p>\n
     Commissioner recorded a finding that the appellant and respondent No.2<\/p>\n
     have neglected to pay the said amount of compensation to the respondent<\/p>\n
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\n                                              5<\/span><\/p>\n
     No.1 and no satisfactory explanation was offered by the appellant about<\/p>\n
     non payment of compensation within one month from the date of incident.\n<\/p>\n
     Hence, the appellant was held liable to pay 50 per cent penalty i.e. Rs.\n<\/p>\n
     45,000\/- and also interest at the rate of 12 per cent per annum on decretal<\/p>\n
     sum of Rs.90,000\/- from the date of incident till its full liquidation.\n<\/p>\n
                    The aforesaid award is the subject matter of challenge in this<\/p>\n
     appeal at the instance of the owner of the vehicle.\n<\/p>\n
     7.             The factual position, which remains un-disputed, as a result<\/p>\n
     of the findings recorded by the Commissioner is that the accident occurred<\/p>\n
     on 2.12.2005, the claim petition was filed on 24.8.2007, the award was<\/p>\n
     passed on 7.2.2009, one month’s period specified in the award to pay the<\/p>\n
     compensation expired on 7.3.2009, the amount of compensation of Rs.\n<\/p>\n
     90,000\/- was deposited in terms of the award on 2.6.2009, the respondent<\/p>\n
     No.1 claimed the interest at the rate of 12 per cent per annum as provided<\/p>\n
     under clause (a) of sub-section (3) of section 4-A of the said Act @ 12 per<\/p>\n
     cent per annum on the amount of compensation awarded from the date of<\/p>\n
     accident i.e. 2.12.2005 and that the respondent No.1 also claimed the<\/p>\n
     penalty of Rs.2,02,328\/-, which is 50 per cent of the total compensation<\/p>\n
     claimed in the petition. The relationship of the employer and employee<\/p>\n
     between the appellant and respondent No.1 is established. It is also true<\/p>\n
     that the accident arose out of and in the course of the employment of<\/p>\n
     respondent No.1 with the appellant. The appellant was the owner of the<\/p>\n
     Tempo and the Tribunal has recorded a finding that it was being driven in<\/p>\n
     the rash and negligent manner by said Balasaheb, as a result of which the<\/p>\n
     respondent No.1 sustained the injuries.\n<\/p>\n
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\n                                            6<\/span><\/p>\n
     8.            The learned counsel for the appellant relying upon the<\/p>\n
     judgment of the Apex Court in the case of National Insurance Co.Ltd. Vs.<\/p>\n
     Mubasir Ahmed and another [AIR 2007 SC 1208], urged that in cases,<\/p>\n
     where the employer totally denies his liability to pay compensation, the<\/p>\n
     expression “fell due” occurring in sub-section (3) of section 4-A of the said<\/p>\n
     Act has to be construed in relation to the date of adjudication of claim or<\/p>\n
     determination of liability by the Commissioner, under Section 19 of the<\/p>\n
     said Act. It is urged that in the instant case, the employer has totally<\/p>\n
     denied his liability to pay compensation. The Commissioner, for the first<\/p>\n
     time, adjudicated the claim or determined the liability by the impugned<\/p>\n
     award dated 7.2.2009 and hence the Commissioner was wrong in directing<\/p>\n
     the payment of interest at the rate of 12 per cent per annum with<\/p>\n
     retrospective effect from 2.12.2005 i.e. the date of incident, more<\/p>\n
     particularly when claim petition itself is filed after about one year and eight<\/p>\n
     months. According to learned counsel, at the most, the interest under sub<\/p>\n
     clause (a) of sub-section (3) of section 4-A of the said Act could be levied<\/p>\n
     only from the date of expiry of one month, from the date of passing of the<\/p>\n
     award.   In support of this plea learned counsel also relied upon the<\/p>\n
     judgment of this Court delivered on 5.8.2009 in First Appeal No.1562 of<\/p>\n
     2009 in the case of The Nandi Sahakari Sakhar Karkhana Vs. Dnyanoba.\n<\/p>\n
     Relying upon another judgment of the Apex Court in the case of Oriental<\/p>\n
     Insurance Co. Ltd. Vs. Mohd. Nasir and another [2009 AIR SCW 3717],<\/p>\n
     learned counsel for the appellant, alternatively urged that the provision<\/p>\n
     regarding higher rate of interest as contemplated by sub-section (3) of<\/p>\n
     section 4-A of the said Act would be attracted only from the date of passing<\/p>\n
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\n                                            7<\/span><\/p>\n
     of the award and the       Commissioner could, at the most, have levied<\/p>\n
     interest at the rate of 7.5 per cent per annum from the date of filing of the<\/p>\n
     application till the date of award.\n<\/p>\n
     9.             So far as the challenge to imposition of penalty is concerned,<\/p>\n
     it is the contention raised by the learned counsel for the appellant that no<\/p>\n
     order imposing penalty could have been passed under sub-clause (b) of<\/p>\n
     sub-section (2) of section 4-A of the said Act, without issuing a show cause<\/p>\n
     notice and giving the appellant reasonable opportunity of being heard in<\/p>\n
     the matter. According to the learned counsel, the appellant was entitled to<\/p>\n
     have an opportunity to furnish an explanation to satisfy the Commissioner<\/p>\n
     about the delay caused in making the payment and it is only upon the<\/p>\n
     Commissioner finding the explanation to be un-satisfactory, the order<\/p>\n
     imposing penalty could have been passed. In support of his contention,<\/p>\n
     learned counsel for the appellant relies upon the decision of this Court<\/p>\n
     delivered on 5.8.2009 in First Appeal No.1562 of 2009 – The Nandi Sahakari<\/p>\n
     Sakhar Karkhana Limited Versus Dnyanoba Kashinath Aare and others.\n<\/p>\n
     Learned counsel submitted that this Court has taken a view that it is only if<\/p>\n
     the appellant fails to make the payment within the period of one month, a<\/p>\n
     show cause notice calling upon the appellant to explain the delay, is<\/p>\n
     required to be issued and thereafter, the Commissioner can pass an order<\/p>\n
     imposing the penalty. Learned counsel also relies upon the decision of this<\/p>\n
     Court in the case of State of Maharashtra Vs. Aarti Ashok Kapshikar and<\/p>\n
     others reported in [2008(1) Bom. C.R. 919].\n<\/p>\n
     10.            On the contrary, learned counsel for respondent No.1 relying<\/p>\n
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\n                                           8<\/span><\/p>\n
     upon the provisions of section 4-A read with sections 3 and 4 of the said<\/p>\n
     Act, contended that the amount of compensation “falls due” on the date of<\/p>\n
     an accident, which arises out of and in the course of employment. He<\/p>\n
     further submitted that the mere adjudication of the claim by the<\/p>\n
     Commissioner on a future date would not absolve the appellant from<\/p>\n
     paying the amount of interest with effect from the date of incident (or even<\/p>\n
     the penalty). According to learned counsel for respondent No.1 \/ claimant,<\/p>\n
     the employer becomes liable to pay the compensation as soon as the<\/p>\n
     personal injury is caused to the workman as a result of an accident which<\/p>\n
     arises out of and in the course of an employment. Learned counsel, in<\/p>\n
     support of his contention, relied upon the decisions of the Apex Court in the<\/p>\n
     cases of Pratap Narain Singh Deo Vs. Shrinivas Sabata and another [AIR<\/p>\n
     1976 SC 222] and Ved Prakash Garg Vs. Premi Devi and others [AIR 1997<\/p>\n
     SC 3854]. Learned counsel urged that even in a cases where the employer<\/p>\n
     totally disputes his liability to pay the compensation, upon determination of<\/p>\n
     the compensation by the     Commissioner, it should be deemed that the<\/p>\n
     compensation so determined had “fallen due” on the date of accident and<\/p>\n
     hence the interest was liable to be paid with effect from the date of the<\/p>\n
     accident. Learned counsel further relied upon the unreported decision of<\/p>\n
     the learned Single Judge of this Court delivered in First Appeal No.1030 of<\/p>\n
     2007 M\/s Muley Brothers Pvt. Ltd. Vs. Samindrabai, dated 25.6.2002 and<\/p>\n
     another judgment of the learned Single Judge of this Court in the case of<\/p>\n
     Danial Nana Pathare Vs. M\/s Tilaknagar Industries Ltd. [2009 (4) ALL MR<\/p>\n
     787. In support of his contention that no show cause notice was required to<\/p>\n
     be given, the learned counsel relies upon the reported decision of this<\/p>\n
     Court in the case of United Insurance Co. Ltd. Vs. Sarsabai Kishanrao<\/p>\n
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\n                                           9<\/span><\/p>\n
     Sontakke and others [2006 (3) Mah.L.R.438].\n<\/p>\n
     11.           In order to deal with the rival submissions made by the<\/p>\n
     parties, it is necessary to reproduce the provisions of section 4-A of the<\/p>\n
     said Act, which reads as under:-\n<\/p>\n
                   “4A. Compensation to be paid when due and penalty for
\n                   default. –<\/p>\n
                   (1)    Compensation under section 4 shall be paid as soon
\n                          as it falls due.\n<\/p><\/blockquote>\n
                   (2)      In cases where the employer does not accept the
\n                   liability for compensation to the extent claimed, he shall be<\/p>\n
                   bound to make provisional payment based on the extent of
\n                   liability which he accepts, and, such payment shall be
\n                   deposited with the Commissioner or made to the workman,
\n                   as the case may be, without prejudice to the right of the<\/p>\n
                   workman to make any further claim.\n<\/p><\/blockquote>\n
                   (3)     Where any employer is in default in paying the
\n                   compensation due under this Act within one month from the
\n                   date it fell due, the Commissioner shall –\n<\/p><\/blockquote>\n
                          (a) direct that the employer shall, in addition to the
\n                          amount of the arrears, pay simple interest thereon at<\/p>\n
                          the rate of twelve per cent per annum or at such
\n                          higher rate not exceeding the maximum of the
\n                          lending rates of any scheduled bank as may be
\n                          specified by the Central Government, by notification
\n                          in the Official Gazette, on the amount due; and<\/p>\n<\/blockquote>\n
                          (b) if, in his opinion, there is no justification for the
\n                          delay, direct that the employer shall, in addition to
\n                          the amount of the arrears, and interest thereon pay a
\n                          further sum not exceeding fifty percent of such
\n                          amount by way of penalty :<\/p><\/blockquote>\n<\/blockquote>\n
                          Provided that an order for the payment of penalty
\n                   shall not be passed under clause (b) without giving as
\n                   reasonable opportunity to the employer to show cause why it
\n                   should not be passed.\n<\/p><\/blockquote>\n
                   Explanation.- For the purposes of this sub-section,
\n                   “scheduled bank” means bank for the time being included in
\n                   the Second Schedule to the Reserve Bank of India Act, 1934
\n                   (2 of 1934).\n<\/p><\/blockquote>\n
                   (3A) The interest payable under sub-section (3) shall be
\n                   paid to the workman or his dependent, as the case may be.”<\/p><\/blockquote>\n
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\n                                           10<\/span><\/p>\n
                    The first question, in this context, which arises is regarding<\/p>\n
     the day\/date on which, the compensation under section (1) of section 4-A<\/p>\n
     of the said Act “falls due”.    The second question, which arises is the<\/p>\n
     day\/date on which the interest under clause (a) of sub-section (3) of section<\/p>\n
     4-A of the said Act would start running on the amount which fell due. The<\/p>\n
     answer to both these questions are not simple and for that purpose the<\/p>\n
     scheme of the relevant provisions of the said Act will have to be<\/p>\n
     understood.\n<\/p>\n
     12.<\/p>\n
                   Section 3 of the said Act deals with the employers liability for<\/p>\n
     compensation. Sub-section (1) of section 3 of the said Act states that if<\/p>\n
     personal injury is caused to a workman by an accident arising out of and in<\/p>\n
     the course of his employment, his employer shall be liable to pay the<\/p>\n
     compensation in accordance with this chapter. What is the amount of<\/p>\n
     compensation, which is required to be paid by the employer to the<\/p>\n
     workman under sub-section (1) of section 3, is specified under section 4.\n<\/p>\n
     Section 4-A of the said Act deals with the compensation to be paid when<\/p>\n
     due and the penalty for default. Sub-section (1) of section 4-A states that<\/p>\n
     the compensation shall be paid as soon as it “falls due”. Sub-section (3) of<\/p>\n
     section 4-A states that where any employer is in default in paying the<\/p>\n
     compensation under this Act, within one month from the date it “fell due”,<\/p>\n
     the Commissioner can direct in terms of clause (a) that the employer shall,<\/p>\n
     in addition to the amount of arrears, pay simple interest thereon, at the<\/p>\n
     rate of 12 per cent per annum.            Clause (b) further empowers the<\/p>\n
     Commissioner to direct the employer to pay, in addition, a further sum not<\/p>\n
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\n                                          11<\/span><\/p>\n
     exceeding 50 per cent of such an amount by way of penalty, if, in his<\/p>\n
     opinion, there is no justification for delay in payment of arrears and<\/p>\n
     interest. However, the only rider on imposition of penalty under clause (b)<\/p>\n
     is that the employer has to be given a reasonable opportunity to show<\/p>\n
     cause why the order imposing the penalty should not be passed.\n<\/p>\n
     13.           In absence of section 4-A (1) of the said Act specifying the<\/p>\n
     date on which the compensation under section 4 “falls due”, what would be<\/p>\n
     date when the compensation under section 4 would “fall due”, is the<\/p>\n
     question to be decided in this case. In this respect, the decision of the<\/p>\n
     Apex Court in the case of Pratap Narain (supra) needs to be considered. It<\/p>\n
     was an appeal preferred by the owner of the vehicle challenging the<\/p>\n
     imposition of penalty as well as the interest on the amount of<\/p>\n
     compensation determined by the Commissioner under section 19 of the<\/p>\n
     said Act.   The Apex Court found no force in the argument that the<\/p>\n
     Commissioner committed a serious error of law in imposing the penalty on<\/p>\n
     the appellant, under section 4-A(3) of the said Act for the reason that the<\/p>\n
     compensation had “fallen due”, only when it was settled by the<\/p>\n
     Commissioner under section 19 of the said Act.          It was held that the<\/p>\n
     employer became liable to pay the compensation, as soon as the personal<\/p>\n
     injury was caused to the workman by the accident, which admittedly arose<\/p>\n
     out of and in the course of an employment. The Apex Court observed that<\/p>\n
     it is, therefore, futile to contend that the compensation did not “fall due”\n<\/p>\n
     until after Commissioner order. It was further held that there is nothing to<\/p>\n
     justify the argument that the employers liability to pay the compensation<\/p>\n
     under section 3 in respect of the injury sustained arises, only after the<\/p>\n
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\n                                           12<\/span><\/p>\n
     settlement as contemplated by section 19 of the said Act.\n<\/p>\n
     14.           The judgment of the Apex Court in Ved Prakash’s                case<\/p>\n
     (supra) considered the provisions of sub-section (2) of section 4-A of the<\/p>\n
     said Act. It was an appeal preferred by the owner of the vehicle,<\/p>\n
     challenging the judgment and order of the High Court, exonerating the<\/p>\n
     insurance company from payment of interest and penalty, under clauses<\/p>\n
     (a) and (b) of sub-section (3) of section 4-A of the said Act, and holding the<\/p>\n
     owner liable to pay the interest from the date of accident and also the<\/p>\n
     penalty under clause (d) at the rate of 50 per cent on the compensation<\/p>\n
     payable.   It was held that the insurance company is liable to pay the<\/p>\n
     interest, however, it was exonerated from payment of penalty, it being the<\/p>\n
     liability only that of an employer. So far as the imposition of interest was<\/p>\n
     concerned, the owner as well as the insurance company, both were held<\/p>\n
     liable to pay the interest on the amount of compensation determined by<\/p>\n
     the Commissioner under section 19 of the said Act, with effect from the<\/p>\n
     date of occurrence of an accident.\n<\/p>\n
     15.    While construing the provisions of sub-section (2) of section 4-A of<\/p>\n
     the said Act, the Apex Court in Ved Prakash’s case held that it<\/p>\n
     contemplates a situation wherein the employer, though accepted his<\/p>\n
     liability to pay the compensation to his injured workman, disputes the<\/p>\n
     extent of claim of compensation and in such case, sub-section (2) enjoins<\/p>\n
     him to make a provisional payment based on the extent of accepted<\/p>\n
     liability by depositing it, with the Commissioner or paying it directly to the<\/p>\n
     workman. It was observed that it is obvious that such an obligation of the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                            13<\/span><\/p>\n
     employer would not arise under section 4-A(2), if he totally disputes his<\/p>\n
     liability to pay on the grounds like the injured person being not his<\/p>\n
     employee or that the accident was caused to him at the time when he was<\/p>\n
     not in the course of the employment. It was held that if such disputes are<\/p>\n
     raised by the employer, then his obligation to make the provisional<\/p>\n
     payment under sub-section (2) of section 4-A of the said Act would not<\/p>\n
     arise and his liability would depend upon the final adjudication by the<\/p>\n
     Workmen’s Commissioner at the end of the trial.\n<\/p>\n
     16.           It was further held in Ved Prakash’s case that one month’s<\/p>\n
     period, as contemplated under section 4-A(3), may start running for the<\/p>\n
     purpose of attracting interest under sub-clause (a) thereof, in a case where<\/p>\n
     the provisional payment becomes due. But when the employer does not<\/p>\n
     accept his liability as a whole, under the circumstances enumerated<\/p>\n
     earlier, then section 4-A(2) would not get attracted and one month’s period<\/p>\n
     would start running from the date on which the compensation payable by<\/p>\n
     the employer is adjudicated upon by the Commissioner. Significantly, it<\/p>\n
     was held by the Apex Court that in either case, the Commissioner would be<\/p>\n
     justified in directing the payment of interest in such a contingency, not only<\/p>\n
     from the date of the award but also from the date of accident concerned. It<\/p>\n
     was held that such an order passed by the Commissioner would remain<\/p>\n
     perfectly justified on the scheme of section 4-A(3)(a) of the said Act.\n<\/p>\n
     17.           The learned counsel for the appellant has relied upon the<\/p>\n
     judgment of the Division Bench of the Apex Court in the case of Mubasir<\/p>\n
     Ahmed (supra). It was an appeal filed by the insurance company and the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                            14<\/span><\/p>\n
     Apex Court was considering the question of payment of interest under<\/p>\n
     clause (a) of sub-section (3) of section 4-A of the said Act. It was held that,<\/p>\n
     the compensation becomes due only on the basis of the adjudication of the<\/p>\n
     claim and unless such adjudication is done, it was held that the question of<\/p>\n
     compensation becoming due does not arise. It was further held that the<\/p>\n
     Legislature has not used the expression “from the date of accident” but has<\/p>\n
     used the expression “falls due”, and in the light of this, it was held that<\/p>\n
     obviously the interest cannot be charged from the date of accident but it<\/p>\n
     has to be charged from the date of adjudication by the Commissioner. The<\/p>\n
     Apex Court, therefore, set aside the date of accident, as the date, fixed by<\/p>\n
     the High Court for charging the interest. This decision does not refer to the<\/p>\n
     earlier judgments delivered by the Apex Court in cases of Pratap Narain<\/p>\n
     and Ved Prakash cited supra.\n<\/p>\n
     18.            The learned counsel for the appellant, thereafter, relied upon<\/p>\n
     the latest decision of the Apex Court in the case of Oriental Insurance Co.\n<\/p>\n
     Ltd. Vs. Mohd. Nasir and another [2009 AIR SCW 3717]. In this judgment,<\/p>\n
     the Apex Court considered the question with regard to the payment of<\/p>\n
     interest and it was held that there cannot be any doubt, whatsoever, that<\/p>\n
     the interest would be from the date of default and not from the date of<\/p>\n
     award of compensation It was held that the provision of interest, as it<\/p>\n
     appears from the plain reading, is penal in nature. It has been held that<\/p>\n
     the said Act does not prohibit grant of interest at a reasonable rate from<\/p>\n
     the date of filing of the claim petition, till the order is passed. It has been<\/p>\n
     held that only when sub-section (3) of section 4 would be attracted, an<\/p>\n
     higher rate of interest would be payable, where for, a finding of fact as<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                             15<\/span><\/p>\n
     envisaged therein has to be arrived at. The Apex Court opined that the<\/p>\n
     interest will also be payable at the rate of 7.5 per cent per annum from the<\/p>\n
     date of filing of the application till the date of award and the rate of interest<\/p>\n
     thereafter, shall be payable in terms of the order passed by the<\/p>\n
     Commissioner. This judgment, although refers to Mubasir’s case, it does<\/p>\n
     not deal with the point decided in the said case nor it refers to decisions in<\/p>\n
     Pratao Narain or Ved Prakash’s case<\/p>\n
     19.            In respect of the aforesaid view of the Apex Court, it may, be<\/p>\n
     pointed out that the view taken by the Apex Court in paragraph No.23 of<\/p>\n
     this judgment in Mohd. Nasir’s case, to the effect that the provisions<\/p>\n
     regarding interest, as it appears from it’s plain reading, is penal in nature,<\/p>\n
     is exactly contrary to the decision of the coordinate Bench in Ved Prakash’s<\/p>\n
     case (supra), wherein, it has been held that so far interest is concerned, it<\/p>\n
     is almost an automatic, once default on the part of the employer in paying<\/p>\n
     the compensation due, takes place beyond the permissible limit of one<\/p>\n
     month. It has been further held specifically that no element of penalty is<\/p>\n
     involved therein. It was held that the liability to pay the interest on the<\/p>\n
     principle amount under the said provision of section 4-A(3)(a) of the said<\/p>\n
     Act remains part and parcel of the statutory liability which is legally liable<\/p>\n
     to be discharged by the insured employer. It was held that the imposition<\/p>\n
     of interest on principle amount would certainly partake the character of<\/p>\n
     liability of the insured employer to pay the compensation amount with due<\/p>\n
     interest, as imposed upon him under the said Act.\n<\/p>\n
     20.            From the decisions of the Apex Court cited supra, the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                             16<\/span><\/p>\n
     following principles emerge.\n<\/p>\n
                   (a)    Employer’s liability to pay compensation arises<\/p>\n
                   under section 3(1) of the said Act as soon as the
\n                   personal injury is caused to a workman by an<\/p>\n
                   accident which arises out of and in the course of
\n                   employment (Pratap Narain’s case).\n<\/p>\n
                   (b)    Where the question arises in any proceedings
\n                   under the Act as to the liability of any person to pay
\n                   the compensation or as to the amount or the duration
\n                   of the compensation, it has to be settled by the<\/p>\n
                   Commissioner, in default of the agreement. However,<\/p>\n
                   there is nothing to justify the arguments that the
\n                   employer’s liability to pay the compensation under
\n                   section 3(1) of the said Act in respect of the injury<\/p>\n
                   gets suspended or deferred until after the settlement
\n                   by the Commissioner under section 19 of the said Act
\n                   (Pratap Narain’s case).\n<\/p>\n
                   (c)    In case, where the employer accepts his<\/p>\n
                   liability to pay the compensation, but disputes the
\n                   extent of the claim, sub-section (2) of section 4-A
\n                   requires him to make provisional payment based on<\/p>\n
                   the extent of accepted liability by depositing it with
\n                   the Commissioner or paying directly to the workman
\n                   injured (Ved Prakesh’s case).\n<\/p>\n
                   (d)    Where the employer totally denies his liability
\n                   to pay the compensation and does not accept it, then
\n                   his liability to make provisional payment under sub-
\n                   section (2) of section 4-A of the said Act would not
\n                   arise and his liability to pay the compensation would
\n                   depend    upon     the    final   adjudication      by    the
\n                   Commissioner under section 19 of the said Act (Ved
\n                   Prakesh’s case).\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                 17<\/span><\/p>\n
       (e)    Once the compensation due under the Act<\/p>\n
       becomes ascertained, either provisionally under sub-
\n       section (2) of section 4-A or finally on the adjudication<\/p>\n
       by the Commissioner under section 19, the same
\n       would “fall due” immediately after expiry of one
\n       month from the date of adjudication under section 19
\n       of the said Act (Ved Prakash’s case).\n<\/p>\n
       (f)    In Mubasir’s case, it was held that since no
\n       indication is there as to when the compensation<\/p>\n
       becomes due, it has to be taken to be the date of
\n       adjudication of the claim, as it becomes due on the<\/p>\n
       basis of such adjudication of claim and unless the
\n       adjudication is done the question of compensation<\/p>\n
       becoming due does not arise. It has been held that
\n       significantly   the    legislature     has    not   used     the
\n       expression, “from the date of accident”, but has used
\n       the expression, “falls due” under sub-section (1) of<\/p>\n
       section 4-A.\n<\/p>\n
       (g)    So far as the payment of interest under clause\n<\/p>\n
       (a) of sub-section (3) of section 4-A of the said Act is<\/p>\n
       concerned, it has been held in Ved Prakash’s case
\n       that in either case, where the employer does not
\n       accept his liability as a whole or where he disputes
\n       the extent of the claim, the Commissioner would be
\n       justified in directing payment of interest from the<\/p>\n
       date of accident concerned and such order would
\n       perfectly be justified on the scheme of section 4-A (3)\n<\/p>\n
       (a) of the said Act.\n<\/p>\n
       (h).   In Ved Prakash’s case it has been held that
\n       once the compensation “falls due” and within one
\n       month, it is not paid by the employer, then as per<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                 18<\/span><\/p>\n
       section 4-A (3)(a), interest at the permissible rate
\n       gets added to the said principal amount of the<\/p>\n
       compensation as the claimants would stand deprived
\n       of their legally due compensation for a period beyond<\/p>\n
       one month which is statutorily granted to the
\n       employer concerned to make good his liability for the
\n       benefit of the claimants whose bread winner might
\n       have either been seriously injured or lost his life. The<\/p>\n
       interest is almost automatic, once the default is
\n       committed and there is no element of penalty
\n       involved in it. The principal amount as well as the<\/p>\n
       interest made payable thereon would remain part and
\n       parcel of the legal liability of the injured to be<\/p>\n
       discharged under the Compensation Act and not
\n       divorce it.\n<\/p>\n
       (i)    So far as the payment of interest under
\n       section 4-A (3) is concerned, it was held in Mubasir’s
\n       case that the High Court was wrong in granting<\/p>\n
       interest at the rate of 12% per annum from the date<\/p>\n
       of accident. It was held that the interest at the rate of
\n       12% per annum was payable from the date of
\n       completion    of   one    month     from    the    date     of<\/p>\n
       adjudication of the claim for compensation by the
\n       Commissioner, as according to it, the compensation
\n       “falls due” under section 4-A (1) on the date of
\n       adjudication (Mubasir’s case).\n<\/p>\n
       (j)    In Mohd. Nasir’s case, it was held that the
\n       interest under section 4-A (3) of the said Act would be
\n       from the date of default and not from the date of
\n       award of compensation. It was held that the provision
\n       of interest, as it appears from a plain reading is penal
\n       in nature. It was also held that the interest will also be
\n       payable at the rate of 7.5% per annum from the date<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                            19<\/span><\/p>\n
                   of filing of the application till the date of award and
\n                   thereafter, it shall be as per the rate of interest<\/p>\n
                   determined by the Commissioner as per his order
\n                   under section 19 of the said Act.\n<\/p>\n
                   It would be apparent from the principles laid down by the<\/p>\n
     Apex Court as are summarized above that the first decision rendered by<\/p>\n
     the Apex Court in the Pratap Narain’s case is by larger bench whereas the<\/p>\n
     remaining three judgments in Ved Prakash’s case, Mubasir’s case and<\/p>\n
     Mohd. Nasir’s case are rendered by the co-ordinate benches of two judges.\n<\/p>\n
     The employer’s liability to pay compensation under section 3(1) of the said<\/p>\n
     Act arises, as soon as the personal injury is caused to a workman by an<\/p>\n
     accident, which arises out of and in the course of employment, as has been<\/p>\n
     held in Pratap Narain’s case. Even the liability to make provisional payment<\/p>\n
     under sub-section (2) of section 4-A, to the extent of accepted sum arises<\/p>\n
     on the date of occurrence of an accident, as has been held in Ved Prakash’s<\/p>\n
     case. The question arises only in cases of total denial of liability, raised by<\/p>\n
     an employer or in respect of the balance sum, to the extent of disputed<\/p>\n
     liability under sub-section (2) of section 4-A which is required to be<\/p>\n
     determined by the Commissioner under section 19, on a date latter than<\/p>\n
     the date of the accident. The decision of the larger Bench in Pratap Narain’s<\/p>\n
     case states that there is nothing to justify the arguments that the<\/p>\n
     employer’s liability to pay compensation under section 3(1) of the said Act,<\/p>\n
     in respect of the injury gets suspended or deferred until after the<\/p>\n
     settlement by the Commissioner under section 19 of the said Act. However,<\/p>\n
     in Ved Prakash’s case and Mubasir’s case, it has been held that the<\/p>\n
     compensation shall fall due only upon adjudication by the Commissioner<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                             20<\/span><\/p>\n
     under section 19 on a latter date.\n<\/p>\n
     21.            Thus, the decision of the larger bench in Pratap Narain’s case<\/p>\n
     would bind this Court and hence, it is held that the compensation payable<\/p>\n
     in such cases would be on the date of accident, irrespective of any dispute<\/p>\n
     regarding total denial of liability or denial of liability to the extent claimed<\/p>\n
     as against the accepted sum. The expression “falls due” employed under<\/p>\n
     sub-section (1) of section 4-A of the said Act shall have to be, therefore,<\/p>\n
     construed with reference to the date of accident only. Any other<\/p>\n
     construction would defeat the object of sub-section (1) of section 3 of the<\/p>\n
     said Act, which is to make the compensation immediately available for the<\/p>\n
     benefit of the claimants, whose bread winner might have been seriously<\/p>\n
     injured or might have lost his life.\n<\/p>\n
     22.    So far as the payment of interest on the amount of compensation,<\/p>\n
     which has fallen due under sub-section (3) of section 4-A is concerned, Ved<\/p>\n
     Prakesh’s case holds that once the compensation “falls due” and it is not<\/p>\n
     paid within one month, by the employer then the interest as per clause (a)<\/p>\n
     of sub-section (3) of section 4-A, at permissible rate of interest, gets added<\/p>\n
     to the principal amount and it is automatic upon occurrence of default and<\/p>\n
     the principal amount as well as the interest thereon would remain part and<\/p>\n
     parcel of legal liability of the employer. It has been held that the interest is<\/p>\n
     not by way of penalty and hence, the Commissioner would be justified in<\/p>\n
     directing the payment of interest from the date of accident and such an<\/p>\n
     order would be perfectly justified on the scheme of section 4-A(3)(a) of the<\/p>\n
     said Act.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                              21<\/span><\/p>\n
     23.            In view of above, the expression “fell due” employed under<\/p>\n
     sub-section (3) of section 4-A of the said Act will have to be construed with<\/p>\n
     reference to the date of expiry of one month from the date of accident,- (1)<\/p>\n
     where the employer does not deny the liability and (2) where, the dispute<\/p>\n
     raised only to the extent of liability, it shall be in respect of the accepted<\/p>\n
     partial liability. However, where there is total denial of the liability by the<\/p>\n
     employer, or where the dispute is raised in respect of extent of liability, the<\/p>\n
     expression “fell due” employed under sub-section (3) of section 4-A will<\/p>\n
     have to be construed with reference to the date of expiry of one month,<\/p>\n
     from the date of adjudication of claim by the Commissioner under section<\/p>\n
     19 of the said Act. In case of default, in all the aforesaid cases to pay<\/p>\n
     compensation, the interest will start running from the date on which the<\/p>\n
     compensation “falls due” under sub-section (1) of section 4-A of the said<\/p>\n
     Act, which is the date of accident only and not from any other subsequent<\/p>\n
     date, much less the date either of the adjudication of the claim or of filing<\/p>\n
     of the claim petition.\n<\/p>\n
     24.            What is postponed or deferred in case of total denial in<\/p>\n
     respect of the liability to pay the compensation, is the determination or<\/p>\n
     ascertainment of the amount of compensation payable by the employer<\/p>\n
     and not the date of incurring the liability. The liability to pay compensation<\/p>\n
     is either incurred or not at all incurred. If it is incurred, it is incurred on the<\/p>\n
     date of accident and if it is not incurred, it is not incurred on any date.\n<\/p>\n
     Where the Commissioner determines the liability on any future date under<\/p>\n
     section 19 of the said Act, it is deemed to have incurred on the date of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                            22<\/span><\/p>\n
     accident and the interest and penalty shall become payable as per Clause<\/p>\n
     (a) and (b) of sub-section (3) of section 4-A of the said Act. If the<\/p>\n
     Commissioner holds that there is no liability at all to pay any<\/p>\n
     compensation, the question of payment of interest and penalty as per<\/p>\n
     Clause (a) and (b) of sub-section (3) of section 4-A will not arise.\n<\/p>\n
     25.            Where the employer does not accept the liability for<\/p>\n
     compensation to the extent claimed, he is bound to make provisional<\/p>\n
     payment based on the extent of liability which he accepts, in the manner<\/p>\n
     stated in sub-section (2) of section 4-A of the said Act and in that event<\/p>\n
     also such accepted liability, he incurs or accrues to him, on the date of<\/p>\n
     accident. If he does not deposit the amount of accepted liability within one<\/p>\n
     month from the date of accident, he will have to pay interest from the date<\/p>\n
     of accident, as contemplated by clause (a) and penalty as contemplated by<\/p>\n
     clause (b) of sub-section (3) of section 4-A. What is postponed, suspended<\/p>\n
     or deferred, is the ascertainment of liability by the Commissioner under<\/p>\n
     section 19 to the extent it is disputed. If the Commissioner accepts the plea<\/p>\n
     of the employer that he has incurred the liability only to the extent he has<\/p>\n
     accepted, then the liability to pay further amount of compensation or<\/p>\n
     interest or penalty thereon does not arise. Where the Commissioner holds<\/p>\n
     the employee liable under section 19 of the said Act, to pay compensation<\/p>\n
     to the extent of disputed liability, and if he fails to make the payment of<\/p>\n
     determined sum, within a period of one month from the date of the order of<\/p>\n
     Commissioner under section 19 of the said Act, then the employer would<\/p>\n
     be liable to pay interest on such determined amount from the date of<\/p>\n
     accident.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                            23<\/span><\/p>\n
     26.           The decision of the Apex Court in Mubasir’s case that since<\/p>\n
     no indication is there as to when the compensation becomes due, it has to<\/p>\n
     be taken to be the date on which the adjudication is done by the<\/p>\n
     Commissioner under section 19 of the said Act and construing the<\/p>\n
     expression “falls due” under sub-section (1) of section 4-A with reference to<\/p>\n
     such date, is contrary to the view taken by the larger bench of the Apex<\/p>\n
     Court in Pratap Narain’s case where it has been held that there is nothing<\/p>\n
     to justify the argument that the employer’s liability to pay compensation<\/p>\n
     under sub-section (1) of section 3 of the said Act gets suspended until after<\/p>\n
     the settlement by the Commissioner under section 19 of the said Act, in<\/p>\n
     case of denial of liability to pay the compensation. This view in Mubasir’s<\/p>\n
     case is also in conflict with the view taken by the Apex Court in Ved<\/p>\n
     Prakash’s case wherein it has been held that in either case of default, the<\/p>\n
     Commissioner would be justified in directing payment of interest from the<\/p>\n
     date of the accident. There exists such conflict in between the two<\/p>\n
     judgments of the Apex Court namely Ved Prakash’s case and Mubasir’s<\/p>\n
     case, is also noted by the learned Single Judge of this Court (Mr. A.S. Oka,<\/p>\n
     J.) in his unreported judgment delivered in first appeal No. 1030 of 2007,<\/p>\n
     Mrs. Mule Brothers Private Limited Vs. Sou. Samindarabai, decided on<\/p>\n
     25.6.2008. Following the ratio of the full bench of this Court in case of<\/p>\n
     Kamleshwar Vs. Union of India, reported in 1994 Mh.L.J. 1669, it has been<\/p>\n
     held that it is not necessary to follow the decision rendered later in point of<\/p>\n
     time.\n<\/p>\n
     27.           In the present case, the accident occurred on 2.12.2005, on<\/p>\n
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\n                                           24<\/span><\/p>\n
     which date the liability of the employer to pay the compensation arose.\n<\/p>\n
     The period of one month from the date of occurrence of the accident<\/p>\n
     expired on 2.1.2006.      The employer did not accept the liability for<\/p>\n
     compensation and he totally denied the claim as contemplated by sub-\n<\/p>\n
     section (2) of section 4-A of the said Act. The Commissioner passed an<\/p>\n
     award on 7.2.2009. In view of the judgments of the Apex Court in Ved<\/p>\n
     Prakash’s case (supra) so also Mubasir’s case (supra), it is on the date of<\/p>\n
     the order of the   Commissioner i.e. 7.2.2009, the amount of arrears of<\/p>\n
     compensation “fell due” under sub-section (3) of section 4-A of the said Act.\n<\/p>\n
     The period of one month as specified in sub-section (3) of section 4-A<\/p>\n
     expired on 7.3.2009 but the employer did not make the payment on\/or<\/p>\n
     before the said date. Hence the simple interest at the rate of 12 per cent<\/p>\n
     per annum became payable by the employer on the amount of arrears of<\/p>\n
     compensation with effect from the date of accident \/ incident on 2.12.2005.\n<\/p>\n
     The Commissioner in the instant case was, therefore, right in directing<\/p>\n
     payment of interest on the sum of Rs.90,000\/- adjudicated towards<\/p>\n
     compensation payable to the claimant from the date of incident i.e.<\/p>\n
     2.12.2005.\n<\/p>\n
     28.           It is the contention raised by the learned counsel for the<\/p>\n
     appellant that although the accident occurred on 2.12.2005, the claim<\/p>\n
     petition was filed on 24.8.2007 and it was adjudicated upon by the<\/p>\n
     Commissioner on 7.2.2009 and therefore, it would cause great hardship to<\/p>\n
     the employer if the interest at the rate of 12 per cent per annum is directed<\/p>\n
     to be paid with effect from 2.12.2005. According to the learned counsel for<\/p>\n
     the appellant, it was the fault of the respondent No.1 \/ claimant in not<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                           25<\/span><\/p>\n
     preferring the claim petition for the period of almost one year and eight<\/p>\n
     months from the date of the accident and he is also not responsible for<\/p>\n
     pendency of the proceedings before the Commissioner from 24.8.2007 to<\/p>\n
     7.2.2009.   Relying upon the decision of the Apex Court in Mohd. Nasir’s<\/p>\n
     case (supra), it is urged by the learned counsel that the provision of<\/p>\n
     interest is penal in nature and therefore, various aspects are required to be<\/p>\n
     taken into consideration in respect of the changeability of interest including<\/p>\n
     the aspect of delay in filing the claim petition by the respondent No.1 and<\/p>\n
     adjudication of the claim by the     Commissioner.      The learned counsel,<\/p>\n
     therefore, contended that at the most the interest at the rate of 7.5 per<\/p>\n
     cent per annum from the date of filing of the application till the date of<\/p>\n
     award would be levied and the rate of interest payable thereafter, shall be<\/p>\n
     in terms of the order passed by the Commissioner.\n<\/p>\n
     29.           The contention as raised aforesaid is also required to be<\/p>\n
     rejected for the reason that the Apex Court in Ved Prakash’s case has in<\/p>\n
     clear terms held that there is no element of penalty involved in imposition<\/p>\n
     of interest and it is automatic once the default is committed by the<\/p>\n
     employer in payment of compensation within the permissible limit of one<\/p>\n
     month. No doubt, the view taken by the two coordinate Benches of the<\/p>\n
     Apex Court in Ved Prakash’s case and Mohd. Nasir’s case to that extent is<\/p>\n
     in conflict with each other.   The judgment of the Apex Court in Mohd.\n<\/p>\n
     Nasir’s case does not take into consideration the view taken by the larger<\/p>\n
     Bench in Pratap Narain’s case and also the earlier view taken by the<\/p>\n
     coordinate Bench in Ved Prakash’s case. In view of this, relying upon the<\/p>\n
     Full Bench decision of this Court in the case of Kamaleshkumar (supra), it is<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                             26<\/span><\/p>\n
     not necessary to follow the view taken by the Apex Court in the later<\/p>\n
     judgment. It is open for the High Court to follow the view taken by the<\/p>\n
     coordinate Bench of the Apex Court, which it deems fit and more in<\/p>\n
     conformity with the provisions of law. In view of this, the claim of the<\/p>\n
     appellant that the interest at the rate of 7.5% per annum be granted from<\/p>\n
     the date of filing of the petition till its adjudication and expiry of period of<\/p>\n
     one month therefrom, at such higher rate as has been specifically under<\/p>\n
     clause (a) of sub-section (3) of section 4-A of the said Act, cannot be<\/p>\n
     accepted.\n<\/p>\n
     30.<\/p>\n
                    Now, turning to my own judgment delivered on 5.8.2009 in<\/p>\n
     First Appeal No.1562 of 2009 (supra), upon which the reliance is placed by<\/p>\n
     the learned counsel for the appellant to urge that the interest at the rate of<\/p>\n
     12 per cent per annum has to be calculated upon failure of the employer to<\/p>\n
     deposit the amount of compensation within the period of one month from<\/p>\n
     the date of the award passed by the Commissioner. It has to be stated<\/p>\n
     that the larger Bench view of the Apex Court in Pratap Narain’s case<\/p>\n
     (supra) was not brought to my notice, which is a binding precedent under<\/p>\n
     Article 141 of the Constitution of India. The law laid down in the said<\/p>\n
     judgment shall prevail over the decisions given by the smaller Benches of<\/p>\n
     the Apex Court, which delivered the judgment in the cases of Ved Prakash,<\/p>\n
     Mubasir and Mohd. Nasir (supra) and none of these three Judgments refer<\/p>\n
     to the view taken by the larger Bench in Prakash Narain’s case (supra).\n<\/p>\n
     Hence, the view taken by me in First Appeal No.1562 of 2009 to that extent<\/p>\n
     it runs contrary to law laid down in Prakesh Narayan’s case, and the same<\/p>\n
     is therefore, rendered per incuriam.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                           27<\/span><\/p>\n
     31.           Now, turning to the question of imposition of penalty under<\/p>\n
     sub-clause (b) of sub-section (3) of section 4-A of the said Act, the Apex<\/p>\n
     Court has held in Ved Prakash’s case (supra) that the penalty is required to<\/p>\n
     be levied under the said provision after issuing show cause notice to the<\/p>\n
     employer concerned who will have a reasonable opportunity to show cause<\/p>\n
     why, on account of some justification on his part for the delay in payment<\/p>\n
     of the compensation amount, he is not liable for this penalty. It has further<\/p>\n
     been held that if ultimately, the   Commissioner after giving reasonable<\/p>\n
     opportunity to the employer to show cause, takes a view that there is no<\/p>\n
     justification for such a delay on the part of the insured employer and<\/p>\n
     because of his unjustified delay and due to his personal fault he is held<\/p>\n
     responsible for the delay, then the penalty would be imposed on him. It<\/p>\n
     has further been observed that so far penalty is concerned, the same is not<\/p>\n
     automatic flowing from the main liability incurred by the insured employer<\/p>\n
     under the said Act.\n<\/p>\n
     32.           This judgment in Ved Prakash’s case has been followed in<\/p>\n
     un-reported judgment of this Court in F.A.No. 1562\/2009, Nandi Sahakari<\/p>\n
     Sakhar Karkhana’s case (supra). It has been held that a show cause notice<\/p>\n
     was required to be issued to the employer calling upon him to furnish the<\/p>\n
     explanation for the delay caused in making the payment of arrears. Upon<\/p>\n
     receipt of the explanation from the employer, if the Commissioner is not<\/p>\n
     satisfied then the penalty to the extent of maximum 50 per cent of the<\/p>\n
     amount of compensation determined is required to be paid by the<\/p>\n
     employer. The order impugned in the present case is a composite order<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                           28<\/span><\/p>\n
     determining the compensation payable by the employer imposing the<\/p>\n
     interest on the arrears of the amount of compensation and imposing<\/p>\n
     penalty for failure to furnish the satisfactory explanation. The show cause<\/p>\n
     notice contemplated by clause (b) of section 3 of section 4-A of the said Act<\/p>\n
     is with reference to the arrears of the amount of compensation determined<\/p>\n
     to be payable by the employer along with the interest payable thereon.\n<\/p>\n
     This finding would arise only upon determination of the compensation by<\/p>\n
     the Commissioner under section 19 of the said Act. Hence, the show cause<\/p>\n
     notice contemplated is after passing of the order by the Commissioner<\/p>\n
     determining the compensation. In view of this order imposing penalty of<\/p>\n
     Rs.45,000\/- to the extent of 50% of the amount of compensation of Rs.\n<\/p>\n
     90,000\/- determined by the Commissioner, needs to be quashed and set<\/p>\n
     aside with a direction to the Commissioner to issue a show cause notice<\/p>\n
     providing the appellant \/ employer a reasonable opportunity of being heard<\/p>\n
     in the matter and to furnish the explanation for the delay caused in making<\/p>\n
     the payment of arrears of compensation and interest, and thereafter to<\/p>\n
     pass an appropriate order.\n<\/p>\n
     33.           The learned counsel for the respondent No.1, however, relied<\/p>\n
     upon the another decision of the learned Single Judge of this Court in<\/p>\n
     Sarsabai’s case (supra), wherein, it was held that no separate show cause<\/p>\n
     notice was required to be issued and the pleadings in the application gives<\/p>\n
     reasonable opportunity to the employer to defend the question of<\/p>\n
     imposition of penalty.   The learned counsel for the respondent No.1 \/<\/p>\n
     claimant invited my attention to the pleadings in paragraph No.4 of the<\/p>\n
     claim petition and mere denial to it submitted in the written statement by<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:58:37 :::<\/span>
\n                                              29<\/span><\/p>\n
     the appellant. In my view, the judgment of the Apex Court in Ved Prakash’s<\/p>\n
     case on this aspect of imposition of penalty upon issuance of separate<\/p>\n
     show cause notice has not been taken into consideration by the learned<\/p>\n
     Single Judge in the said judgment. The binding precedent in this respect of<\/p>\n
     the Apex Court, under Article 141 of the Constitution of India, in Ved<\/p>\n
     Prakash’s case is clear and unambiguous. Hence, the submission made by<\/p>\n
     the learned counsel for the respondent No.1 is rejected.\n<\/p>\n
                     In the result, this first appeal is partly allowed.\n<\/p>\n
     (i)             The impugned judgment and award dated 7.2.2009 passed<\/p>\n
     in N.F.A.No. 20 of 2007 to the extent of imposing penalty of Rs.45,000\/- on<\/p>\n
     the appellant is quashed and set aside.\n<\/p>\n
     (ii)            The appellant is directed to appear before the Commissioner,<\/p>\n
     Workmen’s Compensation at Parbhani and to show cause in respect of the<\/p>\n
     penalty of Rs. 45,000\/- proposed to be levied by the Commissioner. Upon<\/p>\n
     receipt of explanation, the Commissioner for Workmen’s Compensation<\/p>\n
     shall hear the appellant and pass an appropriate orders in accordance with<\/p>\n
     law.\n<\/p>\n
     (iii)           Rest of the order passed by the Commissioner for Workmen’s<\/p>\n
     Compensation at Parbhani on 7.2.2009 in N.F.A.No. 20 of 2007 is<\/p>\n
     maintained.\n<\/p>\n
     (iv)            There shall be no order as to costs.\n\n\n\n\n                                                    (R.K.DESHPANDE, J.)\n     ssc\/fa1044.09\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:58:37 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Udhav Rangnathrao Pawar vs Sheshrao Ramji Jogdand on 2 September, 2009 Bench: Ravi K. Deshpande 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1044 OF 2009 Udhav Rangnathrao Pawar, Age 53 years, Occ. Business, r\/o Sambar, Tq. Parbhani, District Parbhani. ..Appellant Versus 1. Sheshrao Ramji Jogdand, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-188032","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUdhav Rangnathrao Pawar vs Sheshrao Ramji Jogdand on 2 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/udhav-rangnathrao-pawar-vs-sheshrao-ramji-jogdand-on-2-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Udhav Rangnathrao Pawar vs Sheshrao Ramji Jogdand on 2 September, 2009 - 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