1. This appeal is preferred by the petitioners questioning the judgment and award dated 13.07.2018 passed in E.C.A. No. 25/2016 by the Court of the Commissioner for Employee's Compensation (Senior Civil Judge) Yadgir (hereinafter referred to as the 'Commissioner' for brevity).

2. Though this matter is listed for admission with consent of both learned counsel, matter is taken up for final disposal.

3. Brief facts of the case are as under :

One Sri Gousuddin was working as driver under respondent No. 1. On 22.03.2016 at about 2.30 p.m. Gousuddin had parked the lorry/Container bearing No. AP-28/TB-4885 in Chandan Compound Lane No. 4, in front of Padmashree road lines, Bhiwandi, District Thane for loading the goods and thereafter Gousuddin slept in the lorry after having dinner, during his sleep at on 23.03.2016 about 2.04 a.m., he accidentally fell down from lorry/Container due to which he sustained grievous injury over the head and died on the spot.

4. It is the case of the petitioners, who are none other than the widow, children and mother respectively, that the deceased was working as a Driver, aged 38 years and was earning monthly income of ` 10,000/-per month and he was contributing to the welfare and maintenance of his family. The petitioners were solely dependent on the income of deceased and due to the sudden and unfortunate death of deceased, the petitioners are put to tremendous difficulty both emotionally and financially, as the sole bread winner of the family died due to the accidental death during the his course of employment. Pursuant to the death the petitioners approached the employer-first respondent seeking compensation for untimely and sudden death of deceased Gousuddin, but since the same was not paid, the petitioners filed claim petition against the respondents seeking compensation.

5. On notice being issued to the respondents, they appeared and filed their statement of objections inter alia denying contentions and the averments urged in the said claim petition. It was pleaded by the first respondent-employer that the employees were insured with the second respondent and that the insurance policy was in force as on date of occurrence of accident. Hence he would not be liable to pay compensation to the petitioners and if at all any compensation is ordered to be paid, same would have to be indemnified by the respondent No. 2.

6. Respondent No. 2 filed separate statement of objection denying all the averments and contentions pleaded in the claim petition including the accident. Further pleaded that accident occurred due to the sole negligence on the part of deceased himself. It further pleaded the deceased was not holding a valid and effective driving licence and there is no relationship between the deceased and the respondent No. 1 in the form of employee and employer. It further pleaded that deceased was not a workman and that the alleged accident has not occurred during the course of his employment. It further pleaded that the deceased was unauthorised passenger in the lorry and the petitioners have made an imaginary and exorbitant claim which deserves to be dismissed.

7. Based on the pleadings the Commissioner framed relevant issues for consideration.

8. In order to substantiate the issues and establish their case petitioner No. 1 entered the witness box as PW.1 adduced the evidence and got marked six documents as per Ex.P.1 to Ex.P.6, whereas the respondents did not adduce any evidence, however got marked the Insurance Policy with consent as Ex.R1.

9. On the basis of material evidence, both oral and documentary the Commissioner allowed the petition partly and directed the second respondent, being the insurer to satisfy the award of compensation of ` 7,83,000/-with interest at 6% per annum after expiry of thirty days from the date of accident till its realization.

10. Being dissatisfied with the impugned order of the Commissioner, the petitioners are before this Court.

11. The appellants/petitioners have questioned the award of compensation as being highly erroneous and opposed to principles of law. The petitioners have questioned the impugned judgment on two substantial question of law. They are ;

"i) Whether the court below was justified in awarding the interest at the rate of 6% per annum after expiry of thirty days from the date of accident till its realisation instead of awarding 12% per annum as per provisions of Section 4A(3)(a) of the Employee's Compensation Act, 1923

ii) Whether the court below was justified in taking the income of the deceased at ` 8,000/-per month instead of ` 10,000/-per month"

12. It is the vehement contention of learned counsel for the petitioners that the judgment and award of the Commissioner is highly erroneous and arbitrary and opposed to principles of law and the same is liable to be set aside and modified, consequently to award higher compensation.

13. Learned counsel further contends that the Commissioner has grossly erred in not assessing the correct and suitable income of the deceased and has committed serious error in assessing the income of deceased ` 8,000/-per month, instead of ` 10,000/-per month.

14. Learned counsel further contends that the Commissioner has fundamentally gone wrong in awarding interest at the rate of 6% per annum whereas the interest ought to have been awarded at 12% per annum.

15. In support of his argument learned counsel relies on the judgment of the Hon'ble Apex Court in the case of Shobha vs. Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Limited, reported in AIR 2022 Supreme Court 1410. Learned counsel more specifically relies on para 4.1 of the said judgment.

16. Though the learned counsel for the petitioners has also questioned the quantum of income assessed by the Commissioner and has sought for enhancement of the same at ` 10,000/-per month, as against ` 8,000/-awarded by the Commissioner, during the course of arguments learned counsel submits that he would not press the said proposition/argument. Hence, the only point that arises for consideration before this Court is whether the Commissioner is right in awarding interest at the rate of 6% per annum instead of 12% per annum.

17. Learned counsel for the petitioners does not dispute the award of compensation at the rate of ` 8,000/-per month as income of the deceased employee. Hence, the narrow point for consideration before this Court is limited to the first substantial question of law raised in this appeal.

18. Per contra, learned counsel appearing for respondent No. 2-Insurer vehemently contends that the judgment and award of the Commissioner is in accordance with the material placed on record both oral and documentary and hence the same does not call for any interference, muchless awarding any higher compensation including enhancement of award of interest from 6% to 12%. He supports the judgment of the Commissioner to be sustainable in law and seeks for dismissal of this appeal.

19. Having heard learned counsel for the petitioners and respondents. The substantial question of law that arises for consideration before this Court is ;-

"Whether the court below was justified in awarding the interest at the rate of 6% per annum after expiry of thirty days from the date of accident till its realisation instead of awarding 12% per annum as per provisions of Section 4A(3)(a) of the Employee's Compensation Act, 1923"

20. Admittedly, the present case on hand the respondents have not filed any appeal questioning the impugned judgment and award. Hence, the award of compensation is not challenged by the respondents, which makes it easier for this Court not to delve into the issues of relationship of employee and employer, the income awarded by the Commissioner and the aspect of occurrence of death out of and in the course of employment.

21. As stated earlier the only substantial question of law is with regard to awarding interest at the rate of 6% per annum after expiry of thirty days from the date of accident till its realisation. It is contention of the learned counsel for the petitioners that the interest ought to have been awarded at 12% per annum as contended in Section 4A(a) of the Employee's Compensation Act.

22. Now let me analyse the law on this aspect of awarding of interest as per the facts and circumstances of the case on hand. Section 4A(3)(a) of the Employee's Compensation Act reads as under :-

"(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

(b) xxxx."

23. There is no ambiguity in the above said provision that the interest component as to be awarded at the rate of 12% per annum unless there is any other rate higher than 12% of any scheduled bank specified by the Central Government by notification in the official gazette. It is not the case of the petitioners that the interest is to be awarded more than 12%, as he claims that the interest requires to be awarded at 12% rather than 6% awarded by the Commissioner.

24. Keeping the above Section in mind with regard to award of interest, there is no ambiguity in the above said provision with regard to awarding of simple interest at the rate of 12% per annum. The question now boils down as to from which date and from when the interest has to be awarded. The Commissioner has awarded interest at the rate of 6% per annum after expiry of thirty days from the date of accident till its realisation. It is the vehement contention and argument of learned counsel for the petitioners that the interest has to be awarded at 12% per annum and the same will have to be awarded from the date of occurrence of accident rather than after expiry of thirty days from the date of accident. I am in agreement with the contentions put-forth by the learned counsel for the petitioners that the award of interest is to be at 12% per annum and the same requires to be granted from the date as soon as it falls due, which is none other than the date of death of the deceased or immediately on the death of deceased. This analysis is fortified by the judgment of the Hon'ble Apex Court in the case of Shobha vs. Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Limited, reported in AIR 2022 Supreme Court 1410. The Hon'ble Apex Court at para 4.1 has held as under :-

"4.1. Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision."

25. The proposition of law and the precedent laid down by the Hon'ble Apex Court in the aforesaid judgment cannot be disputed by the counsel for respondents so also it is not.

26. In the present facts and circumstances of the case the issue of interest and date of awarding interest being the only substantial question of law and having discussed the above based on the proposition of law in Section 4A(3)(a) of the Employee's Compensation Act and the precedent laid down by the Hon'ble Apex Court in the aforestated judgment there is no iota of doubt in my mind that the interest would have to be awarded at 12% per annum and the same will have to be awarded and paid from the date of death of the deceased, which in otherwise means that the liability to pay the interest on the compensation awarded and the arrears of compensation would have to be paid from the date when it falls due which is from the date of accident/death of the deceased employee. The substantial question of law is answered in favour of petitioners.

27. In view of the above discussions and the reasons stated, the appeal succeeds. Accordingly, I pass the following ;-

ORDER

Appeal is partly allowed.

The judgment and award dated 13.07.2018 passed in ECA No. 25/2016 by the Commissioner for Employee's Compensation, Yadgir is modified.

The petitioners are entitled to total compensation of ` 7,83,000/-with interest at 12% per annum from the date of accident/death of the deceased employee till realisation.

All other terms and conditions of the Commissioner stands intact and the same is not interfered.