TaxTMI 
TaxTMI 
2016 (2) TMI 1397
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.... he met with an accident while on his way to deliver wheat bags in the truck from Berhampur, Orissa to Paralakhemundi, Andhra Pradesh. He sustained severe injuries on the back of his head and died on the spot. The cleaner of the truck, who was present at the time of the accident, gave information regarding the accident to the Mandasa Police Station, Srikakulam, whose personnel reached the spot and conducted the inquest, prepared the panchnama and sent the body of the deceased for post mortem. The cleaner also informed the father of the deceased (Appellant No. 1 herein), who made arrangements for taking the dead body of his son back to the native village for cremation. On 03.11.2011, the appellants, being the father, mother and younger brother of the deceased, filed claim petition W.C. Case No. 61 of 2011 before the Court of the Commissioner for Workmen's Compensation, Berhampur, Ganjam District. The claim of the appellants was that the deceased was aged around 26 years at the time of death and had died while he was in and during the course of employment of respondent no. 2 herein. They claimed that he was getting monthly wages at Rs. 4,000/- per month, daily bhatta (....
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....her truck bearing No. OR 07B-8791 which was also followed with the offending vehicle had also halted and stopped there along with them. They all had taken rest and slept there and got up early morning at about 4.30 A.M. on 19.07.2011 and started to proceed to Paralakhemundi for unloading the goods. While to proceed, the deceased had started the vehicle but the vehicle did not start. Hence, the deceased and the cleaner got down from the vehicle and checked the battery box and removed the wooden log piece kept for obstructing the right wheel of the said truck. After removal of the wooden log piece, the vehicle moved to run down. The deceased saw that the vehicle was moving ahead, he immediately climbed into the vehicle through the iron stepping of the truck, but unfortunately, he fell down from the truck and sustained severe and grievous bleeding injuries on the back side of the head and died at the spot. The vehicle proceeded few distance on the public road and capsized in the field. Thereafter, he and the cleaner of the vehicle saw the condition of the deceased and had consulted with the village Revenue Officer of Sandigam village and told the fact. They immediately reported t....
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....udge of the High Court held as under: "Considering the submissions made by the learned counsel for the parties and keeping in view the findings of the Commissioner as given in the impugned award with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served, if the awarded compensation amount of Rs. 10,75,253/- is modified and reduced to Rs. 6,00,000/- However the award of 50% penalty with interest @12% per annum is not proper and justified and the same is accordingly waived. Accordingly, the claimants are entitled to modified compensation amount of Rs. 6,00,000/- on which no penalty or interest is payable. The impugned award is modified to the said extent only." 7. The present appeal has been filed by the appellants challenging the correctness of impugned judgment and order passed by the High Court. 8. Mr. Alakh Alok Srivastava, the learned counsel appearing on behalf of the appellants contends that the High Court committed a grave error in entertaining an appeal under Section 30(1) of the E.C. Act, which reads as under: "30. Appeals (1) An appeal shall lie to ....
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....r which needs to be corrected." 10. The learned counsel further places reliance on the decision of this Court in the case of National Insurance Co. Ltd. v. Mastan & Anr. [(2006) 2 SCC 641], wherein it was held that an appeal under Section 30 of the E.C. Act would be maintainable subject to the limitations placed under Section 30 itself. 11. The learned counsel further contends that the High Court patently erred in waiving off the 50% penalty alongwith the 12% interest payable by Respondent No. 1 in case of default without assigning the cogent reason. The learned counsel places reliance on a Four Judge Bench decision of this Court in the case of Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289], wherein this Court held that the amount of compensation is payable from the date of accident and not from the date of award. The same was reiterated by a Division Bench of this Court in the case of Oriental Insurance Company Ltd. v. Siby George & Ors. [(2012) 12 SCC 540], wherein after referring to several decisions of the Court, it was held that: "In the light of the decisions in Pratap Narain Singh Deo and Valsala K., it is not open to contend that the payment of compe....
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....h is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act." 14. The learned counsel contends that the judgment of the High Court thus being wholly and patently erroneous is liable to be set aside and the order of award of compensation passed by the learned Commissioner be restored. 15. On the other hand, Mr. K.K. Bhat, the learned counsel appearing on behalf of the respondent Insurance Company contends that the High Court has been compassionate and reasonable in allowing even the amount of compensation it did award, considering the fact situation of the case on hand. In fact, the appellants are not entitled to any compensation whatsoever when the deceased himself was solely negligent and responsible for the accident which resulted in his death. The learned counsel places reliance on the three judge Bench decision of this Court in the case of Khenyei v. New India Assurance Co. Ltd. [(2015) 9 SCC 273], wherein it was held as under: "In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustai....
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....security which he will enjoy, should render industrial life more attractive and thus increase the available supply of labour. At the same time, a corresponding increase in the efficiency of the average workman may be expected." (emphasis laid by this Court) Thus, the E.C. Act is a social welfare legislation meant to benefit the workers and their dependents in case of death of workman due to accident caused during and in the course of employment should be construed as such. Section 3 of the E.C. Act provides for employer's liability for compensation and reads as: " 3 (1) If personal injury is caused to a workman by accident arising out of and in the course of his employment his employer shall be liable to pay compensation in accordance with the provisions of this Chapter" (emphasis laid by this Court) 19. The liability of the employer, thus, arises, when the workman sustains injuries in an accident which arises out of and in the course of his employment. In the case of Regional Director, E.S.I. Corporation & Anr. v. Francis De Costa & Anr. [1996) 6 SCC 1], a Three Judge Bench of this Court held as under: "In the case of Dover Navigation Company Limited v. Isabella Craig 194....
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....uation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence. It has been held by various High Courts that mere negligence does not disentitle a workman to compensation. Lord Atkin in the case of Harris v. Associated Portland Cement Manufacturers Ltd. [1939 AC 71] observed as under: "Once you have found the work which he is seeking to be within his employment the question of negligence, great or small, is irrelevant and no amount of negligence in doing an employment job can change the workman's action into a non-employment job ... In my opinion if a workman is doing an act which is within the scope of his employment in a way which is negligent in any degree and is injured by a risk incurred only by that way of doing it he is entitled to compensation." The above reasoning has been subsequently adopted by several High Courts. In the case of Janaki Ammal v. Divisional Engineer [(1956) 2 LLJ 233], the High Court of Madras held as under: "Men who are employed to work in factories and elsewhere are human beings, not machines. They are subject to human imperfections. No man can be expected to work without ever allowi....
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.... of Rs. 10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos. 1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: "13-A. Maintenance of registers and records- (1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a peri....