Service Of Notice Presumed Effective Upon Expected Delivery Time Unless Proven Otherwise: Patna High Court

The Patna High Court has affirmed that service of notice is presumed to be effective upon the letter's expected delivery time in the ordinary course of business, unless the addressee can prove otherwise.

Justice Sunil Dutta Mishra, while presiding, reiterated, “Section 114 of the Evidence Act, 1872 enables the Court to presume that in the common course of natural events, the communication sent by the post would have been delivered at the address of the addressee. Further, Section 27 of the General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.”

“Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. In the present case, the appellant has not proved that notice has not been served to the appellant in the fact and circumstances of the case. Accordingly, the contention of the appellant that notice was not served to him cannot be accepted and is accordingly rejected,” Justice Mishra added.

The ruling was issued while dismissing an appeal filed under Section 30(1)(a) of the Employees Compensation Act, 1923, challenging an order by the Deputy Labour Commissioner-cum-Commissioner that awarded Rs. 12,80,890 with 6% interest per annum to the claimants.

The case involved Nasir Ahmad, a driver for Gopal Prasad, who suffered fatal injuries after being struck by another vehicle while checking his truck's tires on the roadside. The Commissioner determined that Ahmad was a workman on the insured truck and died in an accident during employment, based on evidence provided by witnesses, the vehicle owner's statements, and submitted documents.

The Appellant's Counsel argued that the appellant was not served notice and was thus unable to contest the case. He further contended that the applicant failed to establish an employer-employee relationship and presented no evidence showing the employer had paid wages to the deceased.

The respondents' counsel argued that despite notice being served, the appellant Insurance Company did not appear before the Commissioner. He maintained that the Insurance Company cannot benefit from its own neglect. Furthermore, the employer had filed a written statement affirming the employer-employee relationship and the wages and allowances paid to the deceased.

The Court noted that the appellant/Insurance Company, despite service of notice, did not appear in the case, and did not contest the case. The employer had filed his written statement but did not contest the case.

Regarding the assessment of wages for computing compensation, the Court observed that Section 5 of Employees' Compensation Act, 1923, defines the term “monthly wages” to mean an amount of wages deemed to be payable for a month's service.

The Court highlighted, “In exercise of the powers conferred by subSection (1B) of Section 4 of the Employees' Compensation Act, 1923, the Ministry of Labour and Employment vide notification dated 31.05.2010, published in the Gazette of India specifies, for the purpose of sub-Section (1) of the said Section, Rs. 8,000/- as monthly wages.”

The Court upheld the Commissioner's assessment of the deceased, an experienced truck driver's earnings, deeming it appropriate based on sworn statements from the applicant and the employer's written statement, finding the assessment neither excessive nor misaligned with truck driver wages in 2013.

Addressing interest on compensation and employer penalties, the Court observed that statutory interest on the compensation amount due to payment delays is a liability for the insurance company, while any penalty for unjustified delay would be the employer's responsibility under Section 4A(3) of the Act. The Court emphasised that penalties up to 50% may apply only if the employer's delay was found unjustified.

The Court clarified the purpose of Section 12 of the Workmen's Compensation Act while noting, “Section 12 of the Workmen's Compensation Act, the object is apparent, that is to protect the workman and secure compensation for him from persons in a better position to pay, who then are to be indemnified by the contractor, for which the provisions is made in sub-section (2) of Section 12. By Workmen's Compensation (Amendment) Act, 1995 the rate of interest has been enhanced from 6 % to 12 % per annum which came into force with effect from August 19, 1995.”

The Court held that the claimant was entitled to fair compensation, with the High Court empowered under Order XLI, Rule 33 of the CPC to enhance compensation amounts during appeal, even without specific appeals or cross-examinations.

Finding no merit in the insurance company's appeal, the Court dismissed it but modified the interest rate in the initial order to 12% per annum from the date of the accident until payment. The Court directed the insurance company to deposit the due amount with the Commissioner within two months, thereby disposing of the miscellaneous appeal.

Case Title: The IFFCO vs Shamima Khatoon & Ors.

LL Citation: 2024 LiveLaw (Pat) 105

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