# Sri Shiv Lal & Anr v. Sri Vivek Shanker Gupta & Anr

- **Citation:** (2020) 12 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-10
- **Case number:** First Appeal From Order No. 1673 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-shiv-lal-anr-v-sri-vivek-shanker-gupta-anr-45443
- **Pages:** 4

## Headnote

A. Workmen's Compensation Act, 1923-
Section
4A-Compensation-Amount
of
Interest-Practice of granting interest less
than 12% -Held, the amount would carry
12% rate of interest from one month from
the date of accident-Once the amount is
deposited, the Tribunal shall disburse the
same and the Insurance company shall
not deduct TDS (Tax Deduction at Source)
. (Para 8 and 9)
B. Interpretation of Statute - Word 'Shall'
used in Section 4A-It has mandatory
effect. (Para 4 and 5)

Appeal allowed (E-1)

Cases relied on :-

## Text

120 INDIAN LAW REPORTS ALLAHABAD SERIES
to deposit the amount within 12 weeks
from today as per the order of the Tribunal
and, if the amount has already been
deposited by U.P.S.R.T.C., the same shall
be refunded to the U.P.S.R.T.C. by the
Insurance Company through owner of the
vehicle.

9.

The
statutory
deposit
of
Rs.25,000/-
shall
be
returned
to
U.P.S.R.T.C.

10. This Court is thankful to Sri
Sanjeev Kumar Yadav, learned counsel for
the appellant and Sri Brijesh Chandra Naik,
learned counsel for the respondent for ably
assisting this court.

11. A copy of this judgment be
circulated to all the Tribunals in the State of
U.P. so that in future where vehicle of
U.P.S.R.T.C. is involved and if there is no
breach of policy conditions as per Section
147 of the Motor Vehicles Act, 1988, the
Insurance Company may be held liable.
----------
(2020)12ILR A120
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

First Appeal From Order No. 1673 of 2020

Sri Shiv Lal & Anr. ...Appellants
Versus
Sri Vivek Shanker Gupta & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Shreesh Srivastava

Counsel for the Respondents:
Sri Radhey Shyam
A. Workmen's Compensation Act, 1923-
Section
4A-Compensation-Amount
of
Interest-Practice of granting interest less
than 12% -Held, the amount would carry
12% rate of interest from one month from
the date of accident-Once the amount is
deposited, the Tribunal shall disburse the
same and the Insurance company shall
not deduct TDS (Tax Deduction at Source)
. (Para 8 and 9)
B. Interpretation of Statute - Word 'Shall'
used in Section 4A-It has mandatory
effect. (Para 4 and 5)

Appeal allowed (E-1)

Cases relied on :-

1. Oriental Insurance Company Vs Siby George
& ors., 2012(4) T.A.C. 4 (SC)
2. Civil Appeal No. 7470 of 2009; North East
Karnataka Road Transport Corporation Vs Smt.
Sujatha decided on 2.11.2018
3. Civil Appeal No. 10018 of 2017; Smt. Surekha
& ors. Vs the Branch Manager, National
Insurance Company Ltd. decided on 3.8.2017
4. F.A.F.O. No. 1538 of 2020; Miskina & 5 ors.
Vs M/s H.D.F.C. Egro General Insurance Ltd. &
anr. decided on 26.11.2020
5. F.A.F.O. No. 1553 of 2020; Sanju Kushwaha
Vs Vimal Kumar Verma decided on 3.12.2020
6. Smt. Hansagori P. Ladhani Vs The Oriental
Insurance Company Ltd., reported in 2007(2)
GLH 291

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Shreesh Srivastava,
learned counsel for the appellant and Sri
Radhey
Shyam,
learned
counsel
for
respondent-Insurance Company. Owner's
presence is not required, hence, no notice is
issued.

2. This appeal, at the behest of the
claimants, challenges the judgment and
12 All. Sri Shiv Lal & Anr. Vs. Sri Vivek Shanker Gupta & Anr.
121
order
dated
29.10.2020
passed
by
Commissioner, Workmen's Compensation
Act,
1923/Additional
Labour
Commissioner, (hereinafter referred to as
'Commissioner') in E.C. Case No.42 of
2018 awarding a sum of Rs.8,28,852/- as
compensation with interest at the rate of
9%.

3. Fact that the deceased was an
employee is not in dispute; death caused
due to vehicular accident which can be said
to be arising out of his employment is not
in dispute and; the Insurance Company
having insured the vehicle with the
workmen is not in dispute, hence, no facts
are mentioned except that the accident
occurred
on
24.10.2017
and
the
compensation would fall due on 24.11.2017
and
no
technical
pleas
are
raised.
Compensation awarded is not in challenge.

4. The sole question of law which
arises for consideration is whether Assistant
Labour Commissioner can award interest
less than what the statute has legislated,
namely, 12% under provisions 4-A of the
Workmen's
Compensation
Act,
1923(hereinafter referred to as 'the Act')? A
similar issue had arisen before this Court
where this Court has deprecated the
practice of grant of interest less than what
is specified under the statute. The reason
being the word used by the legislation is
'shall' and not 'may'.

5. I am pained to pen down that the
Workmen's Commissioner in Uttar Pradesh
are time and again have to be conveyed that
they are supposed to follow the statute
under which they are functioning. Section
4A of the Act legislates as follows:

"4A. Compensation to be paid
when due and penalty for default.?

1.Compensation under section 4
shall be paid as soon as it falls due.

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 workman, as the case may be,
without prejudice to the right of the
workman to make any further claim.

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.)if, in his opinion, there is no
justification for the delay, direct that the
employer shall, in addition to the amount of
the arrears, and interest thereon pay a
further sum not exceeding fifty per cent of
such amount by way of penalty:

Provided that an order for the
payment of penalty shall not be passed
under
clause
(b)
without
giving
a
reasonable opportunity to the employer to
show cause why it should not be passed.

Explanation.?For the purposes of
this sub-section, ?scheduled bank? means a
bank for the time being included in the
Second Schedule to the Reserve Bank of
India Act, 1934 (2 of 1934)."

6. I am supported in my view by the
judgments rendered by Supreme Court in
the case of Oriental Insurance Company
Vs. Siby George and others, 2012(4)
122 INDIAN LAW REPORTS ALLAHABAD SERIES
T.A.C. 4 (SC); Civil Appeal No. 7470 of
2009
North
East
Karnataka Road
Transport Corporation Vs. Smt. Sujatha
decided on 2.11.2018. Reliance is being
placed by learned counsel for the appellant
also on judgment in Civil Appeal No.
10018 of 2017, Smt. Surekha and others
Vs. the Branch Manager, National
Insurance Company Ltd. decided on
3.8.2017, which holds that Insurance
Company has to be made liable and further
the relevant date from when the interest
would be payable is decided therein,
namely, one month of the date, when the
compensation accrues. Learned counsel for
the appellant has also relied on the decision
of this Court in First Appeal From Order
No.1538 of 2020 (Miskina and 5 others
vs. M/s H.D.F.C. Egro General Insurance
Ltd. and another) decided on 26.11.2020
and First Appeal From Order No. 1553 of
2020
(Sanju
Kushwaha
Vs.
Vimal
Kumar Verma) decided on 3.12.2020.

7. Learned counsel Sri Radhey Shyam
tried to point out that the judgment and
order impugned is just and proper.

8. In view of the judgments cited
hereinabove,
judgment
and
award
impugned herein is modified to the extent
that the amount would carry 12% rate of
interest from one month from the date of
accident, i.e., 24.11.2017. If the Insurance
Company has not yet deposited the amount,
it shall deposit the amount with interest at
the rate of 12% from one month from the
date of accident till the amount is
deposited.

9. It goes without saying that once the
amount is deposited, the Tribunal shall
disburse the same and the Insurance
company shall not deduct TDS. I am
supported in my view by the ratio laid
down by Hon'ble Gujarat High Court, in
the case of Smt. Hansagori P. Ladhani v/s
The Oriental Insurance Company Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

10. The appeal is allowed. Question
of law is answered in favour of the
appellant
and
against
the
Insurance
Company.

11. This Court is thankful to both the
learned Advocates for ably assisting the Court.

12. Despite the orders of the Apex
Court and this Court, the Workmen
Commissioners are not following the
mandate of the legislation in awarding the
rate of interest and effective date from
when interest would accrue. Hence, the
Registrar General shall send this order
through the Head of the Department of
concerned
Commissioners
for
the
knowledge of Workmen Commissioners.
----------
12 All. Samarjeet Singh Vs. Khursheed Khan Ors.
123
(2020)12ILR A123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 2213 of 2019

Samarjeet Singh ...Appellant
Versus
Khursheed Khan & Ors. ...Respondents

Counsel for the Appellant:
Sri Vidya Kant Shukla

Counsel for the Respondents:
Sri Pawan Kumar Singh, Sri Pawan Kumar
Singh, Sri Vijay Prakash Mishra

A. Civil Law -Motor Vehicles Act (59 of 1988) -
Section 168 - Compensation - Injury & disability
incurred due to the vehicular accident - Tribunal took
over hyper technical stand in not granting any
compensation - Tribunal disbelieved the medical
certificate produced - medical Board opined that
claimant had 50% total disability - Held - Medical
documents which are public document under the
Evidence Act have to be believed - It was no body
case that the document of Medical Board was
fabricated - insurance company or the owner had not
doubted the veracity of the said document - Tribunal
wrongly disbelieved the medical certificate issued in
favour of the claimant by the competent medical
board (Para 18)

B. Civil Law -Motor Vehicles Act (59 of
1988) - Section 166 - Code Of Civil Procedure
(5 of 1908) , O.9 R.13 - Setting aside decree ex
parte against defendant - Accident claim - Motor
Accident Claims Tribunal awarded compensation
holding owner solely liable - Owner of offending
vehicle filed application under O. 9 Rule 13 of CPC
- application was simply filed to show that the
driver of the vehicle had proper driving licence &
exoneration of the insurance company was not call
for - no fresh evidence even after the application
O. 9 Rule 13 of CPC was filed except the xrox copy
of the driving licence of driver of the offending
truck - owner did not challenged the quantum of
compensation awarded to the claimant nor
requested for rehearing or deciding all the issues
afresh - there was no prayer to set aside the entire
award - By the subsequent award, tribunal
fastened liability on owner and insurance company
& reduced the compensation payable to the
claimant - Held - Tribunal could not have reviewed
the compensation awarded without any further
pleadings or contrary evidence led after the order
of under 9 Rule 13 of the Code was passed -
Tribunal wrongly ventured to review the entire
earlier award not even challenged before it nor
any averment was made that entire award
required to be re-answered (Para 26)

C. Civil Law -Motor Vehicles Act (59 of 1988)
- Section 168 - Compensation - Deduction of
TDS from amount of awarded compensation - total
amount of interest, accrued on the principal
amount of compensation is to be apportioned on
financial year to financial year basis - if the interest
payable to claimant for any financial year exceeds
Rs.50,000/-, insurance company/owner is/are
entitled to deduct appropriate amount under the
head of 'Tax Deducted at Source' as provided u/s
194A (3) (ix) of the Income Tax Act, 1961 - if the
amount of interest does not exceeds Rs.50,000/-
in any financial year, claimant allowed to withdraw
the amount without producing the certificate from
the concerned Income- Tax Authority (Para 31)

Appeal allowed. (E-5)

List of Cases cited: -

1. Raj Kumar Vs Ajay Kumar & anr .(2011) 1
SCC 343, 2010 LawSuit(SC) 1081, 2011(1) TAC
page 785 (SC)

2. Hari Babu Vs Amrit Lal & ors. 2019(2) TAC 718 (All.)

3. Mahoora Bano Vs National Insurance
Company & ors. 2020(1) T.A.C. 688 (S.C.)

4. National Insurance Company Ltd. Vs Mannat
Johal & ors. Civil Appeal Nos. 1079-4081 of
2019 dt. 23.4.2019

5. Arun Bajpai Vs Mushir Ahmad & ors. F.A.F.O.
No.3183 of 2009 Dt 13.12.2017