- (1.) THIS appeal has been filed by appellant Smt.Noji Devi W/o Shri Himmat Singh aggrieved by the order of the Workmen Compensation Commissioner, Beawar dated 21/3/2003 whereby, claim petition filed by the appellant for grant of compensation on account of death of her son Gopal Rawat due to electrocution while working with the respondent, was rejected.
(2.) SHRI J.P. Gupta, learned counsel for the appellant has argued that deceased Gopal Rawat was working as workman in the hotel of the respondent and he was also doing the domestic work. His salary was Rs.1,000/- per month in addition to having the facilities of diet and residence. He was working with the respondent for 1 1/2 years prior to his death. His age at the time of death was 20 years. While Gopal Rawat was repairing the cooler of the respondent on the direction of the employer on 6/6/2001, suddenly electric current started flowing in the cooler, as a result of which, he got electric shock and died on the spot. Respondent took him to the J.L.N. Hospital and FIR was also lodged with Police Station Beawar Sadar bearing FIR No.13/2001 at the instance of the doctor of JLN Hospital, Ajmer, wherein same reason has been mentioned of his death. Learned Workmen Compensation Commissioner has very hypothetically rejected the claim case of the appellant. Learned counsel invited the attention of the court towards the opinion of the medical jurist quoted in the award, who opined that the "cause of death could not be ascertained though the possibility of death due to convulsion disorders cannot be ruled out". It was argued that this opinion has no meaning because post-mortem of the deceased was conducted on 6/6/2001 in which it was mentioned that cause of death will be given after chemical examination and receipt of the pathological report of the viscera. Learned counsel argued that appellant is a poor lady and that deceased was the only son, who during his life time would have support her. Opinion that has been subsequently expressed by the medical jurist is totally meaningless because in the FIR lodged by the doctor, he has categorically stated that the deceased was brought to the hospital by Rajiv Bhargava and informed that he died while repairing the cooler due to electric shock. This was the first available version and the medical officer cannot be expected to have any bias against the respondent. He would speak the truth, which what has been recorded by the learned Commissioner. Per contra, Smt.Gayatri Rathore, learned counsel for the respondent has opposed the appeal and argued that respondent was not an employee in the hotel but was a domestic servant and that he was not a workman in the meaning of provisions of Section 2(1)(n) of The Workmen Compensation Act, 1923 (Old Act) and denied his salary to be Rs.1,000/- and he was actually being paid Rs.500/- per month. Doctor has categorically opined that cause of death could not be ascertained though the possibility of death due to convulsion disorders cannot be ruled out. In the circumstances, learned Commissioner was perfectly justified. It is, therefore, prayed that the claim petition be dismissed. Upon hearing learned counsel for the parties and perusing the order, I find that the fact about death of Gopal Rawat while in the employment of respondent-Rajiv Bhargava is not denied. He died due to electrocution, which is clearly evident from the first version of the respondent himself when he took Gopal Rawat to the hospital. The FIR at the Police Station Beawar Sadar was lodged at the instance of the doctor of the JLN Hospital, Ajmer on the basis of information of medical jurist of the same hospital to whom this was disclosed by the respondent that Gopal Rawat received electric shock while repairing the cooler as a result of which, he died. It is on that basis, proceedings u/S.174 Cr.P.C. was conducted. No doubt, port-mortem report has stated that exact cause of death will be given after receipt of chemical report and pathological report of the viscera. Though the reports did not appear to have been received/produced before the Workmen Compensation Commissioner but Commissioner has agreed to the subsequent opinion of the medical jurist to the effect that cause of death could not be ascertained though the possibility of death due to convulsion disorders cannot be ruled out. In my considered view, the evidence in the case was sufficient to hold that death of Gopal Rawat was due to electrocution received by him while working with the respondent. The other opinion of the medical jurist cannot be accepted. As regards income, respondent has asserted that deceased was being paid Rs.500/- per month but this cannot be taken as a complete rebuttal of the evidence given by the appellant, who has stated that initially her son was engaged on payment of Rs.800/- per month. Respondent also used to provide him food and facility of residence. Subsequently, his salary was increased to Rs.1,000/-. She has stated that apart from working in the hotel of the respondent, deceased also used to work in the residence of the respondent as a domestic help. Keeping in view the fact that deceased was also working in the hotel, he must be held a workman within the purview of Section 2(1)(n) of the Act of 1923 (old Act). Income of the deceased has to be accepted as Rs.1,000/- per month because evidence of the appellant is inspiring confidence and she has remained unshaken in cross-examination. In view of Section 4(1)(a) of The Employee's Compensation Act, 1923 (new Act), 50% amount of the monthly wages of the deceased has to be multiplied by the relevant factor of 224.00 to determine compensation. Deceased at the relevant time was 20 years of age and an amount of Rs.500/-, which is 50% of the monthly wages and if Rs.500/- is multiplied by the relevant factor of 224.00 given in Schedule-IV appended to the Act of 1923 (new Act) as per computation of 500x224.00, the amount comes to Rs.1,12,000/-. Respondent has so far not made the payment of compensation and rather contested the claim petition on flimsy grounds, which unfortunately found favour with the Commissioner, who has relied on subsequently prepared opinion from the medical jurist, where an absolutely irrelevant cause was assigned to avoid liability of making payment; in that, cause of death could not be ascertained though the possibility of death due to convulsion disorders cannot be ruled out. Respondent must be therefore held responsible for making payment of interest also @6% p.a. from the date of filing claim petition till actual payment is made. Keeping however, in view the fact that this appeal has remained pending before this court for last eight years, respondent is directed to pay a total sum of Rs.1,50,000/- as compensation to the appellant, within a period of two months from the date of receipt of the certified copy of this order, failing which, respondent shall be liable to pay interest @9% p.a. on the aforesaid amount of compensation for the period of delay in making payment till actual payment is made.
(3.) THE appeal thus is allowed. Record be remitted back to the Commissioner Workmen Commissioner, Beawar forthwith.;