GAMMON INDIA LTD. Vs. TUSHYA DEVI
LAWS(HPH)-1997-4-15
HIGH COURT OF HIMACHAL PRADESH
Decided on April 04,1997

GAMMON INDIA LTD. Appellant
VERSUS
Tushya Devi Respondents


Referred Judgements :-

PRATAP NARAIN SINGH DEO VS. SRINIVAS SABATA [REFERRED TO]


JUDGEMENT

KAMLESH SHARMA, J. - (1.)APPELLANT Gammon India Limited has assailed award dated 27.9.1986 passed by Commissioner Workmen's Compensation, Shimla, Solan and Bilaspur Districts at Shimla (hereinafter called 'the Commissioner') whereby the respondents were awarded the following compensation:
(i) Compensation : Rs. 45,968.17 (ii) Simple interest percent per for at the rate of 6 annum : Rs. 5,742.87 (iii) Penalty : Rs. 11,492.04 ______________ Total : Rs. 63,203.08
Since the appellant had deposited an amount of Rs. 19,200/ on 6.6.1986, it was directed to make payment of an amount of Rs. 44,003.10 to the respondents within a period of two months from the date of the award, failing which it would be liable to pay interest at the rate of 6 per cent per annum. The amount of award was apportioned amongst the respondents in equal shares.
(2.)RESPONDENT Nos. 1 to 3 are widow and sons of deceased workman Jaman Sada. Admittedly, he was working as a daily waged labourer with the appellant w.e.f. October, 1983. On 8.5.1984 he was performing the excavation work of pier P 2 of Sirhali Khad Bridge when at 10.15 a.m. due to sudden fall of muck bucket (drum full of gravel and sand) on his head he received serious injuries. He was first removed to Civil Dispensary, Barthin and thereafter to Civil Hospital, Bilaspur, where he was declared dead. The report of the accident was made by the Assistant Engineer, Barthin Sub Division, H.P. P.W.D. on 10.5.1984. On receipt of a copy of the report the Commissioner called for copies of F.I.R., post mortem report and names and addresses of the legal representatives of deceased workman Jaman Sada and thereafter sent notices to the appellant as well as the respondents.
In the meantime, the respondents filed application for compensation along with application for condonation of delay on 16.8.1986, on which notices were sent to the appellant as well as Assistant Engineer, Barthin Sub Division, H.P. P.W.D. for 2.9.1986. The Assistant Engineer raised no objection to condonation of delay and stated in his written reply that amount of Rs. 19,200/ deposited by the appellant may be paid to the respondents. Hence, delay was condoned. However, the representative of the appellant took time to consult the record of the appellant in order to give statement on its behalf on the next date of hearing. The Commissioner adjourned the case to 26.9.1986 for reply to the claim petition by the appellant and also for recording statements of the parties. On 26.9.1986 the Assistant Engineer, Barthin Sub Division, H.P. P.W.D. was not present and he was proceeded ex pane. However, respondent No. 1 Tushya Devi along with her counsel as well as Bhal Chand, Ex. Subedar Major, Supervisor of the appellant were present and their statements were recorded besides the statements of Sarju, CW 2 and Laxmi Narayan, CW 3. In the order of 26.9.1986 it is recorded that the appellant failed to file reply to the claim petition, rather Bhal Chand, who was present as representative of the appellant, stated that as per the directions of A.K. Mirchandani, the then Resident Engineer of the appellant, he was there to give all informations within his knowledge. Though he showed his inability to state whether the appellant wanted to produce evidence in its defence, yet he raised no objection to the release of the amount of compensation deposited by the appellant. He did not object to recording of his statement as RW 1 and production of relevant record in respect of engagement of deceased Jaman Sada as labourer on daily wage of Rs. 10.25. He had admitted that Jaman Sada had died as a result of injuries suffered by him by fall of muck bucket on his head. He had placed on record police report Exh. R 1 and post mortem report Exh. R 2. He has further stated that report of accident was sent to the Head Office of the appellant, wherefrom an amount of Rs. 19,200/ was received for payment as compensation to the legal representatives of the deceased, which was deposited before the Commissioner. In his cross examination he had admitted that he had not brought the muster roll of the deceased and had given statement in respect of his wages on the basis of claim form but he had admitted that the appellant used to provide free accommodation of the value of Rs. 150/ per month and free' medical aid to deceased workman. He had again said that under the free medical aid the workmen get 75 per centre imbursement of their medical expenses on the basis of actual receipts. According to him deceased Sada Ram used to be given Rs. 300/ as travelling expenses for going to his home town. On the other hand, Tushya Devi, CW 1, Sarju Sada, CW 2 and Luxmi Narayan, CW 3, had stated that deceased Jaman Sada was earning about Rs. 700/ p.m., out of which he was remitting Rs. 500/ to his home for respondents.

(3.)ON the basis of this evidence the Commissioner has assessed the monthly wages of the deceased workman as under:
(1) Wages at the rate of Rs. 10.25 per day : Rs. 307.50 (2) Over time one hour per day at the rate of Rs. 1.28. : Rs. 36.43 (3) Medical aid : Rs. 10.00 (4) Accommodation : Rs. 50.00 (5) Water & electricity charges : Rs. 20.00 (6) Travelling expenses at the rate of Rs. 300/ per year : Rs. 25.00 ___________ Total : Rs. 448.93 ____________
(Wrongly calculated as Rs. 450.93) which is rounded off to Rs. 451/ . Accordingly, half the monthly wages are calculated as Rs. 225.50, to which the relevant factor 203.85 has been applied and the compensation amount of Rs. 45,968.17 is arrived at. The Commissioner has also awarded interest on this amount from the date of accident, i.e., 8.5.1984 to the date of pay ment. Further, holding that the amount of compensation was not deposited within one month from the date it fell due, penalty at the rate of 25 per cent which comes to Rs. 11,492.04 has also been awarded. As the amount of Rs. 19,200/ stood deposited on 6.6.1986, the remaining award amount of Rs. 44,003.10 was deposited on 17.12.1986, which was sent for by this Court and put in fixed deposit. The interest accruing on fixed deposit was ordered to be remitted to respondent Tushya Devi after every six months and an amount of Rs. 10,824/ was sent to her by way of bank draft as interest.


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