Branch Manager, National Insurance Company Ltd., Kasaragod v. Sreenivasa and Abdul Khader

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 MFA.No. 156 of 2007(A) ---------------------WCC.75/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISISONER, KANNUR .................... APPELLANT(S): SECOND OPPOSITE PARTY ----------------------------------- THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KASARGOD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP 1 --------------------------------- 1. SREENIVASA, S/O MAHALINGA GATTY, KUDREPDY HOUSE, MAIPADY, POST BELA, KASARGOD. 2. ABDUL KHADER, S/O MOIDEENKUNHI, - 1/66 VORAMBADY HOUSE, POST. YETHADKA. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.PRAVEEN K. JOY FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.F.A. No.156 of 2007** ## **----------------------------------------------Dated 18[th] August, 2011.** ## **J U D G M E N T** ## **K.M.Joseph, J.** The appellant is the second opposite party/insurer in a claim filed under Section 22 of the Workmen's Compensation Act. The Commissioner awarded Rs.12,000/- with 12% interest from the date of accident till the date of deposit. The following are the three substantial questions of law raised by the Commissioner : - “(1) Whether the personal injury caused to the applicant was happened due to an accident arising out of and in the course of his employment as a driver of KL/14B/1821 Autorickshaw ? - (2) Whether the applicant is totally and permanently disabled to do his profession due to injury? - (3) Whether the applicant is entitled to get any compensation under the provisions of the Workmen's Compensation Act for the personal injury caused to him?” 2. But, the learned counsel for the appellant pressed before us substantial questions of law 2 and 3. According to him, the Commissioner has categorically found as follows :- MFA 156/07 2 “Point No.2 : Ext.X1 is a Medical Board Certificate issued by the District Medical Board, Kasaragod in which it is recorded that “We, the members of District Medical Board do hereby certify that, we have carefully examined Sreenivasa, 25 years, who was involved in a road accident on 11.5.2003. He had compound fracture medical mallerus (Lt) and closed fracture lower 1/3 fibula (Lt). Now his fractures united well. There is no wasting or weakness or limitation of movements. He will be able to drive motor vehicles efficiently and his occupational disability is negligible”. The applicant has no plea for further superspecial examination and opinion in this regard. In such circumstances this document is highly authentic and reliable with regard to the disability of the applicant. Hence, I find that the applicant has not sustained total or partial or permanent disability due to the injury. The point 2 is answered accordingly.” ## Thereafter, he complains that the Commissioner has proceeded to hold as follows : “Point No.3 : Since the applicant has no permanent and partial disability, he is not entitled to get compensation under Section 4(1)(b) or 4(1)(c) of the Workmen's Compensation Act. It is proved that the applicant was under treatment as inpatient about one month at Hospital. Considering the nature of injury caused, definitely he would have required continued treatment MFA 156/07 3 and rest for a long period. Here there is no record to prove how long he was absent from duty for treatment. According to the applicant he could not be able to do his vocation even now. It is not believable at any cost. Normally, about 6 months treatment is enough for the recovery of such fracture. In these circumstances, the applicant is entitled to get half monthly payment under Section 4(1)(d) of the Workmen's Compensation Act. In order to determine half monthly payments rate of monthly wages is essential. Here there is no documentary proof of monthly wages, whereas the applicant stated it as Rs.6,000/- per month, while the opposite party II strongly objected it. It is pertinent to note that the accident was happened as early as 2003. At that time, wages of an Autorickshaw deriver in rural area, at any rate would not be above Rs.4,000/- per month. Hence I hold that the monthly wages of the applicant was Rs.4,000/- per month. Based on the above factors half monthly payments under Section 4(1) (d) of the Act, entitled to the applicant is determined as follows : 4000 x 25 x 12 **==> picture [199 x 24] intentionally omitted <==** 3. According to the appellant, after entering the findings in issue no.2, the Commissioner is not justified in awarding compensation under Section 4(1)(d). The appellant MFA 156/07 4 does not dispute that the workman was hospitalised as an inpatient for some time. We find merit in the contention of the appellant. The Commissioner under the Workmen's Compensation Act can order compensation in cases coming under Section 4(1)(a), 4(1)(b), 4(1)(c) and 4(1)(d) of the Act. Section 4(1)(b) provides for compensation in the case of total permanent disablement. Section 4(1)(c) deals with partial permanent disablement. The Commissioner has categorically found that applicant is not entitled to get compensation under Section 4(1)(b) or 4(1)(c). It is thereafter, the Commissioner has proceeded to award compensation on the basis of Section 4 (1)(d). We feel that there is no justification to order compensation and that too, particularly for the period of six months. 4. In fact, the Commissioner has noted that Commissioner did not believe the case of the appellant that he could not do his vocation even now. However, the Commissioner has noted that a period of six month's treatment was enough for the recovery of the injury, which was a compound fracture medial mallerus left and closed fracture MFA 156/07 5 lower 1/3 fibula left. Learned counsel for the appellant does not seriously dispute fixing of three months, in the nature of the injury. Hence, we modify the order and we restrict the compensation to Rs.6,000/- in place of Rs.12,000/-. 5. The next question relates to payment of interest from the date of the accident. Learned counsel would submit that the direction to pay interest from the date of accident is unsustainable. He would submit that only upon adjudication, the liability arises and therefore interest could be ordered only from the date of the adjudication and not from the date of the accident. Learned counsel relied on the judgments of the Supreme Court in **National Insurance Co.Ltd. v. Mubasir Ahmed & Another** [2007 AIR SCW 1265], **Kamla Chaturvedi v. National Insurance Co** . [2008(4) KLT 862 (SC)] and **Palraj v. Divisional Controller, NEKRTC** [2010-JT-10-94]. They are all judgments rendered by two judges benches. No doubt, they tend to support the case of the appellant. However, we notice that the question engaged the attention of the Apex Court and a bench of four judges in **Pratap Narain Singh Deo v. Srinivas Sabata** [(1976)1 SCC 289] held as follows : MFA 156/07 6 “It is wrong to contend that the compensation had not fallen due until it was 'settled' by the Commissioner under Section 19 by his impugned order dated May 6, 1969. The employer became liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which admittedly arose out of and in the course of employment. There was no suspension of the compensation pending settlement. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. So in the present facts and circumstances the Commissioner was fully justified in making an order for the payment of interest and the penalty.” No doubt, it is pointed out that the said case related to a scheduled injury and the facts were different. Thereafter, similar question arose before this Court in **National Insurance Company Ltd. v. Rekha** [2007(4) KLT 386]. Therein also, the decision in **National Insurance Co.Ltd. v. Mubasir Ahmed & Another** [2007 AIR SCW 1265] was considered by the Division Bench and it was interalia held as follows : “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay interest from the MFA 156/07 7 date of award only on the basis of the facts of that case. Wide powers vested in the Hon'ble Supreme Court under Art.142 of the Constitution of India are not available to the Tribunal or even to the High Courts while deciding a statutory appeal. (See the observations in Delhi Development Authority v. Skipper Construction Co.(P) Ltd. (AIR 1996 SC 2005). We are bound by statutory provisions and law declared by the Apex Court as mandated by Art.141 of the Constitution as held in Suganthi Suresh Kumar v. Jagdheesan (2002) 2 SCC 420). When there is conflict between the decisions of the Supreme Court, decision of the larger Bench will prevail (See : Mattulal v. Radhe Lal (AIR 1974 SC 1596). In view of the statutory provisions and larger Bench decision, we see no ground to interfere in that part of the order in awarding interest from the date of accident. We also note that this ground was not raised before the Commissioner or even in the appeal memorandum, but only raised as an additional ground by filing petition dated 7.6.2007 in the appeal filed in the year 1998. However, we see no ground to interfere in the impugned award and hence this appeal is dismissed.” However, it is pointed out that the matter is pending in appeal before the Supreme Court against the aforesaid judgment of the Division Bench of this Court. 6. The same view was taken by another Division MFA 156/07 8 Bench in an employer's appeal in **Harrisons Malayalam Ltd. v. P.K.Ashraf and Others** [2009(1) KHC 799 (DB)]. In the light of the legal position decided in **National Insurance Company Ltd. v. Rekha** [2007(4) KLT 386], we do not find any merit in the contention of the appellant. We reject the said contention and we confirm the direction to pay interest from the date of the accident on the sum of Rs.6,000/- and the appeal is allowed as above. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs