National Insurance Co. Ltd. v Abdul Kareem

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 MFA.No. 5 of 2008() ------------------WCC.79/2003 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY: --------------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, PALARIVATTOM NOW REPRESENTED BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, PADMA JUNCTION, KOCHI 35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT: APPLICANT: -------------------------------------- ABDUL KAREEM, S/O.MUHAMMEDUNNI, THOTTATHIL HOUSE, CHELAKKARA, PULAKKODE P.O., THRISSUR. ADV. SRI.DILIP J. AKKARA FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.F.A.(W.C.C.) No. 5 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 22[nd] day of August, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellant, National Insurance Company Limited who is the 2[nd] opposite party in an application filed by the respondent herein challenges the order of the Commissioner by which the Commissioner awarded compensation for a sum of Rs.1,01,317/with 12% interest from the date of accident till the date of deposit. 2. We heard learned senior counsel for the appellant and learned counsel for the respondent. 3. Learned senior counsel for the appellant raised two substantial questions of laws before us. Firstly, it is contended that this is a case where the Commissioner has acted illegally in taking M.F.A. No. 5 of 2008 **==> picture [14 x 9] intentionally omitted <==** the loss of earning capacity as 35%. Secondly he would contend that the Commissioner ought not have granted interest from the date of accident. 4. Regarding the first substantial question of law, it is submitted that this is a case where going by Ext.A1 Disability Certificate following are the disabilities noted by the Medical Practitioner, who was examined as AW1: 1. Pain and tenderness of both wrist more on right wrist. 2. Partial ankylosis of a)right wrist motion limited to an arc from 1000 line to 300 palmar flexion. b)left wrist motion limited to an arc from 450 dorsiflexion to 150 palmar flexion. 3. Grip with both hand is weak more on right hand. 4. Compression of 25% of LI Body mild fragmentation, malunion with kyposis, persistent pain, Para spinal muscle spasm and rigidity no neurological manifestation. 5. Forward flexion of spine is limited 2 inches above the ground. 6. Backward extension and lateral flexion of spine is limited. Functionally he is having difficulty. - a)for light grip with both hand - b) to pickup, hold and carry objects with both hand. - c) for forward bending. - d) to take load from the ground. - e) to carry load on the back due to kyposis. - f) to do manual labour - g) to drive any sort of vehicles. M.F.A. No. 5 of 2008 **==> picture [14 x 9] intentionally omitted <==** He has assessed the loss of earning capacity as 40% and permanent whole body disability as 18%. Thereafter, noting that the petition was filed for referring the applicant to the Medical Board and also taking note of the counter affidavit filed and after hearing the arguments, the Medical Board petition was rejected and the percentage of loss of earning capacity was reduced and decided as 35% by the Commissioner. Learned senior counsel for the appellant would contend that this is not permissible. 5. Learned counsel for the claimant would submit that having regard to the nature of disabilities incurred, where the disability affected both his hands, there is no case made out for interference. 6. Having heard the learned counsel appearing in the circumstance of the case and having regard to the age of applicant, which is 52 years and also the nature of disabilities incurred, we fix the loss of earning capacity at 30% in place of 35%. 7. Regarding the dispute regarding payment of interest from the date of accident, learned senior 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 ## M.F.A. No. 5 of 2008 **==> picture [14 x 9] intentionally omitted <==** and therefore interest could be ordered only from the date of the adjudication and not from the date of the accident. Learned senior 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 bench. 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 to contend that the wrong 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 M.F.A. No. 5 of 2008 **==> picture [14 x 9] intentionally omitted <==** 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 judgment 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 M.F.A. No. 5 of 2008 :6: 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 before the Supreme Court. 8. The same view was taken by another Division Bench in an employer's appeal in **Harrisons Malayalam Ltd. v. P.K.Ashraf** M.F.A. No. 5 of 2008 **==> picture [14 x 9] intentionally omitted <==** **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. 9. Accordingly the M.F.A. is partly allowed and the order is modified and we direct that the appellant will be liable to pay Rs.86,843/- (Rupees eight six thousand eight hundred and forty three only) with 12% interest from the date of accident till the date of deposit, as ordered by the Commissioner. The amount which is lying is deposit after the respondent/applicant withdraws the eligible amount as aforesaid, can be withdrawn by the appellant. ## **K.M.JOSEPH, (JUDGE)** ## **M. L. JOSEPH FRANCIS, (JUDGE)** dl/