Mikad, S/o Ummer v. United India Insurance Company Ltd.

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. 164 of 2007() --------------------WCC.47/2001 of Commissioner for Workmen's Compensation THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST.MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY RESPECTIVELY ------------------------------------------------------------ 1. MIKDAD, S/O.UMMER, APPAKADU HOUSE, P.O.PUDUKOD, PALAKKAD DIST. 2. P.PRABHAKARAN, POOMGOTTILE HOUSE, TRRIPPALAMUNDA, PALAKKAD DIST. 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.164 of 2007 ----------------------------------------------Dated 18[th] August, 2011.** ## **J U D G M E N T** ## **Joseph, J.** Appellant is the second opposite party/insurer in a claim filed under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded Rs.31,000/- with interest at the rate of 12% from the date of the accident. 2. We heard learned counsel for the appellant. Though served, there is no representation for the respondents. 3. Learned counsel for the appellant would raise three contentions before us. He would firstly contend that this is a case where the allegation of the claimant was that he was an autorickshaw driver and he was an employee of the first opposite party. The first opposite party filed counter and he denied the employer-employee relationship. It is his case that he sold the vehicle to one Raveendran and the said Raveendran was not brought on the party array. Even then, it is stated that the Commissioner has found that the applicant is an employee of the first opposite party. 4. Secondly, it is contended that the Commissioner MFA 164/07 2 has taken loss of earning capacity at 12%. The appellant filed a petition for referring the matter to the Medical Board. However, without any basis, the same was rejected, it is submitted. He referred to the decision of the Full Bench in **New India Assurance Company Limited v. Sreedharan** [1995(1) KLT 275 (FB)] in the matter and contended that it is not permissible. Thirdly, he contended that there is no justification in awarding interest from the date of the accident. 5. Taking up the first point, we notice that it cannot be said that the substantial question of law arises essentially whether the applicant was an employee of the first opposite party, is a question of fact. In this case, there was evidence of the applicant. It was also found that the first opposite party was the owner of the vehicle and the policy also stood in the name of the first opposite party. In such circumstances, we are not inclined to think that there is any substantial question of law made out in this regard. 6. Learned counsel would submit that the direction to pay interest from the date of accident is unsustainable. He MFA 164/07 3 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 : “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 MFA 164/07 4 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 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 MFA 164/07 5 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. 7. The same view was taken by another Division 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 said legal position, we do not find any merit in the contention of the appellant. MFA 164/07 6 ## 8. Thirdly, learned counsel for the appellant contended that the Medical Board petition should have been allowed. We notice that the injuries, and the disabilities as noted in Ext.A8 disability certificate, are as follows : “Injuries : 1. Fracture right clavicle. 2. Blunt injury abdomen. 3. Puncture wound 1.5 x 0.5 cm bone deep right leg. 4. Abrasion on right leg, left foot, right ankle both flank. 5. Pain in the abdomen distended. 6. Lacerated wound 1 x 0.5 cm. On lower part of right leg. 7. Haematoma 4 x 4 cm in the interscapular area. Disabilities : 1. Malunion right clavicle. 2. Tender calleous formation over right clavicle. 3. Movements of right shoulder joint restricted. 4. Stiffness of right ankle joint. 5. Chronic abdomen. Permanent disability assessed as 9% and loss of earning capacity as a Petty Autorikshaw Driver is assessed as 20%.” We notice further that the doctor has also been examined as AW2. 9. After hearing the learned counsel for the MFA 164/07 7 appellant, we would think that the interests of justice would be sub-served if we reduce the loss of earning capacity to 10%. On the said basis, the claimant would be entitled to Rs.25,833.60, which is rounded off to Rs.25,834/-. Accordingly, we modify the order and direct that the appellant will pay a sum of Rs.25,834/- with interest at 12% from the date of the accident, viz., 20.8.2000 till the date of deposit. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.