National Insurance Company Limited v. K. R. Viswanathan

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. 282 of 2009() --------------------WCC.98/2004 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY -------------------------------- NATIONAL INSURANCE COMPANY LIMITED, THRISSUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT: APPLICANT ------------------------ K.R.VISWANATHAN, S/O.LATE RAGHAVAN, KOTTAMKUNNATHU HOUSE, VELLANIKKARA P.O., VIA.THRISSUR. (NO RELIEFS ARE CLAIMED AGAINST IST OPPOSITE PARTY IN THE APPLICATION AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL). ADV. SRI.V.BINOY RAM 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. No. 282 of 2009 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 22[nd] day of August, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellant is the 2[nd] opposite party in a proceeding under Sec.22 of the Workman's Compensation Act. By the order the Commissioner has ordered a compensation of Rs.1,34,886/(rounded off figure). He has also ordered interest at the rate of 12% from the date of accident. 2. Essentially two substantial questions of law were raised before us by the learned senior counsel for the appellant. Firstly, it is contended that the Commissioner has acted illegally in taking the loss of earning capacity at 35%. Secondly, it is submitted that the Commissioner has acted illegally in taking interest from the date of accident. Learned counsel for the respondents supported the order of the Commissioner. M.F.A. No. 282 of 2009 :2: 3. As far as the first contention is concerned, this is a case where the applicant was 36 years of age. The following are the disabilities and difficulties noted: 1. Pain in (R) hip and pubic region. 2. Stiffness of (R) hip and knee. 3. Difficulty in driving Auto, inability to run. 4. Difficulty in climbing up and downstairs. On examination (clinically & radiologically) 1. He was reduced dislocation (R) hip with avascular necrosis of hip i.e., Blood supply to head of femur is compromised. He was malunion of acetabulam (R). 2. He has evidence of secondary osteoarthritis in (R) hip (X-ray) on 13.9.08. 3. He has stiffness of (R) hip. ||Range||Normal| |---|---|---|---| |Flexion|90||130| |Abduction|30||40| |Abduction|30||40| |Internal rotation|10||45| |External rotation|10||45| 4. He has united fracture of Tibia (R) upper end. 5. He has stiffness of (R) knee. Range 0-90 Normal 0-140 6. Sciatic Nerve palsy has reduced to (70%) He has got temporary disability for 1[st] 8 months. Permanent disability (for whole body) is assessed as 24%. Loss of earning capacity as driver is assessed as 45%. Disability is as per MC Bride. M.F.A. No. 282 of 2009 :3: Disability evaluation is as follows: |1. Reduced dislocation of (R) hip with avascular - 6.|1. Reduced dislocation of (R) hip with avascular - 6.| |---|---| |Necrosis of hip.|| |2. Malunion of acetabulam|- 4.| |3. Stiffness of (R) hip|- 5.| |4. Secondary Arthritis of (R) hip|- 4.| |5. Stiffness of (R) knee|- 4.| |6. United fracture of Tibia with pain|- 1.| ||------| ||24.| ||-------| As it is seen from the above, the Medical Practitioner has certified the loss of erning capacity as 45%. The Commissioner has thereafter heard the petition for refering the applicant to the Medical Board filed by the appellant and it was rejected. Therafter considering all the facts the Commissioner fixed the loss of earning capacity at 35%. We take note of the nature of the injuries and the fact that loss of earning capacity was fixed with reference to the nature of the work that he is doing and also the age, we fix the loss of earning capacity at 30% in place of 35%. Accordingly the appellant is liable to pay Rs.1,15,616.16, rounded off to Rs.1,56,617/-. M.F.A. No. 282 of 2009 **==> picture [14 x 9] intentionally omitted <==** 4. As far as the second question of law raised by the learned counsel for the appellant, 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 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 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 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 M.F.A. No. 282 of 2009 **==> picture [14 x 9] intentionally omitted <==** 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 judgment related to a scheduled injury and the facts were different. 5. 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 M.F.A. No. 282 of 2009 :6: 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 M.F.A. No. 282 of 2009 :7: the Division Bench of this Court. 6. 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. 7. Accordingly the Appeal is partly allowed and the order is modified and we direct that the appellant will be liable to pay Rs.1,15,617/- (Rupees one lakh fifteen thousand six hundred and seventeen only) along with 12% interest from the date of accident till the date of deposit. Any amount which is lying in deposit after the applicant withdraws the eligible amount as aforesaid, can be withdrawn by the appellant. ## **K.M.JOSEPH, (JUDGE)** ## **M. L. JOSEPH FRANCIS, (JUDGE)** dl/