# The Oriental Insurance Co. Ltd., Sadar Bazar Shahjahanpur v. Smt. Haseen Bano @ Booti & Ors

- **Citation:** (2023) 7 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-02
- **Case number:** First Appeal From Order No. 655 of 2005
- **Bench:** Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-co-ltd-sadar-bazar-shahjahanpur-v-smt-haseen-bano-booti-50490
- **Pages:** 4

## Headnote

A. Civil Law - Employee's Compensation
Act, 1923 Section 4A-Commissioner has
awarded compensation @ 7% rate of
interest - The claimants have filed cross
objection challenging the grant of interest
at the rate of 7% which is against the
mandate of statute namely, Employee's
Compensation Act, 1923-deceased died
out of gunshot injury- he was an helper on
the truck.- murder while on job is an
employment
accident-Hence,
the
said
7 All. The Oriental Insurance Co. Ltd., Sadar Bazar Shahjahanpur Vs. Smt. Haseen Bano @ Booti
 & Ors.
101
question
is
answered
against
the
insurance company - The awarded amount
shall carry 12% simple interest which is
statutory rate of interest from the date of
accident till deposit of difference in
interest is made by insurance company-
The
cross
objection
of
claimant
is
allowed.(Para 1 to 12)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

100 INDIAN LAW REPORTS ALLAHABAD SERIES
1/3rd is deducted towards the personal
expenses and rounding it off to Rs. 2, 100/-
per month, then the net income would be
[Rs. 6,250-2,100] Rs. 4,150/- per month.
Adopting a multiplier of 15 as per decision
of the Apex Court in Sarla Verma (supra),
the compensation amount would be Rs.
7,47,000/- to which the amount towards
consortium and loss of estate and funeral
expenses, if added at Rs. 70,000/-, would
finally rest the award at 8,17,000/-.

45. Once again if it is recapitulated, it
would be found that the Tribunal without
making deduction for personal expenses yet
awarded a sum of Rs. 7,45,000/-. If
deduction would have been made then the
amount of the Tribunal would get deescalated to around Rs. 5,20,000/-. On the
other hand upon re-computation on the
enhanced income, the amount determined
is Rs. 8,17,000/-.

46. Now, this Court is poised to
determine the delicate task of assessing the
just and fair compensation. Whether
mathematical
calculations
should
be
preferred or considering the facts and
overall
circumstances
including
the
evidence and adopting the correct and
settled methodology with a pragmatic and
realistic approach and also keeping in mind
that the difference between the amount
already awarded and which could be
awarded is only about Rs. 72,000/-
Whereas the respondents did not seek
enhancement of the award and upon
accepting the contention of the appellant
and at the given base income adopted by
the Tribunal and if deduction is made the
amount would be hugely disproportionate.

47. Thus, in the aforesaid facts and
circumstances
and
for
the
detailed
discussions and reasons, this Court is not
inclined to interfere in the quantum of the
award as awarded by the Tribunal but for
different reasons as recorded hereinabove.
The award dated 07.08.2019 passed in
Claim Petition No. 81 of 2018 is affirmed.
Accordingly, the appeal is dismissed. In the
facts and circumstances, there shall be no
order as to costs. Any amount deposited
before this Court or before the Tribunal in
pursuance of the order of this Court, if any,
shall be remitted to the Claims Tribunal
expeditiously to be released in favour of the
claimants-respondents.
----------
(2023) 7 ILRA 100
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2023

BEFORE

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

First Appeal From Order No. 655 of 2005

The Oriental Insurance Co. Ltd., Sadar
Bazar Shahjahanpur ...Appellant
Versus
Smt. Haseen Bano @ Booti & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Viqar Ahmad Ansari, Sri Ashutosh Vaish

Counsel for the Respondents:
Sri B.B. Jauhari

A. Civil Law - Employee's Compensation
Act, 1923 Section 4A-Commissioner has
awarded compensation @ 7% rate of
interest - The claimants have filed cross
objection challenging the grant of interest
at the rate of 7% which is against the
mandate of statute namely, Employee's
Compensation Act, 1923-deceased died
out of gunshot injury- he was an helper on
the truck.- murder while on job is an
employment
accident-Hence,
the
said
7 All. The Oriental Insurance Co. Ltd., Sadar Bazar Shahjahanpur Vs. Smt. Haseen Bano @ Booti
 & Ors.
101
question
is
answered
against
the
insurance company - The awarded amount
shall carry 12% simple interest which is
statutory rate of interest from the date of
accident till deposit of difference in
interest is made by insurance company-
The
cross
objection
of
claimant
is
allowed.(Para 1 to 12)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Rita Devi Vs New India Assr. Co. Ltd. (2000)
LAWS SC 499

2. Sunita Mishra & anr. Vs M.T.G. Infra Power
Pvt. Ltd & anr. FAFO No. 2126 of 2019

3. Oriental Ins. Co. Vs Siby George & ors.
(2012) 4 TAC 4 SC North East Karnataka Road
Trans. Corp.Vs Smt. Sujatha Civil Appeal
No.7470 of 2009

4. Golla Rajanna Etc. . Vs Div. Manager & anr.
(2017) 1 TAC 259 SC

5. Mayan Vs Mustafa & anr. (2022) ACJ 524

6. Sri Chanappa Nagappa Muchalagoda Vs Div.
Manager, New India Ins. Co. Ltd (2019)0
SSC1347 Shakuntala Chandrakant Shreshti Vs
Prabhakar Maurti Garvali & anr. (2006) 0 SSC
1105

7. Mohd. Yaqub Vs UPSRTC thru Reg. Manager,
Moradabad (2003) 97 FLR 224

8. UK HC in Ravindra Singh Negi Vs Workmen's
Compensation Commr & ors. (2005) 106 FLR
808

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

1. Heard, learned counsel for the
appellant and learned counsel for the
respondent.

2. By way of this appeal, the
insurance company has challenged the
judgment and award dated 25.1.2005
passed
by
Workmen
Compensation
Commissioner/Assistant
Labour
Commissioner, Shahjahanpur in W.C.A.
No.5/WCA/2003.

3. The award passed by the
Commissioner has been challenged by the
claimant raising the following substantial
question of law:

"a)
Whether,
the
learned
Workmen
Compensation
Commissioner
was justified in awarding the compensation
when the cause of murder has no nexus
with the course of employment of arising
out of such employment ?

b)
Whether
there
being
no
proximate
connection
between
the
employment and the incidents of murder,
can it be deemed to be an accident as
provided under Section 3 of Workmen
Compensation ?

c) Whether the learned Workmen
Compensation Commissioner / Assistant
Labour Commissioner, was justified in
awarding 7% interest on the awarded
amount of compensation ?

d)
Whether
the
Workmen
Compensation Commissioner was justified
in awarding the interest against the insurer
as the insurer who under took the liability
to indemnify the employer was not himself,
the employer as Section 4A(3) could be
invoked only against an employer, as
against any person in section 31 of
Workmen Compensation Act ?"

4. The claimants have filed cross
objection challenging the grant of interest
at the rate of 7% which is against the
mandate of statute namely, Employee's
Compensation Act, 1923. The question of
law is whether Commissioner can award
interest against the provisions of Section
102 INDIAN LAW REPORTS ALLAHABAD SERIES
4A of Act, 1923. Learned counsel for the
claimants had relied on the decision of
Uttarkhand High Court in Ravindra
Singh
Negi
Versus
Workmen's
Compensation Commissioner and others,
2005(106) FLR 808.

5. So as to appreciate the questions of
law the accident did not occur due to
employment and during the employment.
The factual scenario as it sculled out form
the record is that on 20.11.2002 when the
truck was plied, some miscreants came
with a L.P. Car, they saw dead the driver
and the owner of the truck whereby the
driver and the owner of goods died on the
spot and the son of the claimants Irfan died
out of the gun shot injury while being
treated in the hospital. The deceased Irfan
was serving as a helper. The postmortum
report shows that the deceased died out of
gun shot injury. The evidence shows that he
was an helper on the truck. The finding of
fact on issue nos. 1 , 2 & 3 are findings of
fact and, therefore, the so called substantial
question of law at a and b is covered by the
judgment of Apex Court in Rita Devi Vs.
New India Assurance Company Limited,
LAWS(SC)2000 499 that murder while on
job is an employment accident. Hence, the
said question is answered against the
insurance company.

6. As far as question (c) is concerned
both the insurance company and claimants
have
raised
objection
therefore
the
submission of both the counsel will have to
be considered.

7. It is submitted by learned counsel
for appellant that the learned Commissioner
could not have granted interest lower than
the statutory interest as per Section 4A of
Employee's Compensation Act, 1923. The
Commissioner
cannot
grant
such
conditional order. The same is bad in the
eye of law.

8. The only ground pressed by the
claimant is that the Commissioner could
not have granted interest dehors the
provisions of Section 4A of the Employee's
Compensation Act, 1923 which reads as
under :

"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 plrejudice 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,
play simiple interest thereon at the rate of
twelve per cent. per annum or at such
higher rate not exceedign the maximum of
the lendign 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
7 All. Pathiram & Ors. Vs. The United India Insurance Co. Ltd. & Anr.
103
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 inicluded in the
Second Schedule to the Reserve Bank of
India Act, 1934 (2 of 1934).

[(3A) The interest and the penalty
payable under sub-section (3) shall be paid
to the workman or his dependant, as the
case may be.]]"

9. The above question of law is no
longer res integra in view of the decision of
the Apex Court in Oriental Insurance
Company Vs. Siby George and Others,
2012 (4) T.A.C. 4 (S.C.) which is later in
point of time, wherein it is held that
liability to pay interest is on Insurance
Company. All other grounds mentioned in
the memo of appeal are in the realm of
question of facts and the finding of the
Commissioner on these issues are not
perverse, hence, are not disturbed by this
Court as this Court is fortified in its view
by the decision of the Apex Court passed in
Civil Appeal No.7470 of 2009 North East
Karnataka Road Transport Corporation
Vs. Smt. Sujatha decided on 2.11.2018,
Golla Rajanna Etc. Etc. Vs. Divisional
Manager and Another, 2017 (1) TAC 259
(SC) & Mayan vs. Mustafa and another,
2022 ACJ 524 wherein the Apex Court has
held that under Section 30 of Workmen
Compensation Act, the High Court cannot
enter into the arena of facts unless they are
proved to be perverse and unless there is a
question of law involved.

10. The Tribunal granted interest only
if there is no payment within one month
this finding is against the mandate of this
Court. This Court is fortified in its view by
the decision of this Court passed in First
Appeal From Order No.2126 of 2019
(Sunita Mishra and another Vs. M.T.G.
Infra Power Pvt. Ltd and another)
decided on 13.9.2019.

11. The appeal is dismissed as a
question of law are answered against the
appellant. The cross objection of claimant
is allowed.

12. The awarded amount shall carry
12% simple interest which is statutory rate
of interest from the date of accident till
deposit of difference in interest is made by
insurance company.

13. The claimants be paid the amount
forthwith.

14. Record be transmitted to the
Commissioner.
----------
(2023) 7 ILRA 103
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

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

First Appeal From Order No. 757 of 1998

Pathiram & Ors. ...Appellants
Versus
The United India Insurance Co. Ltd. & Anr.
 ...Respondents

Counsel for the Appellants:
Sri R.K. Porwal

Counsel for the Respondents:
Sri Shashi Kant Srivastava

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of