National Insurance Company Limited v. Santosh A.R. and O. Santosh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 MFA.No. 165 of 2007() --------------------(AGAINST ORDER IN WCC.53/03 BEFORE WCC., KANNUR) APPELLANT: 2ND OPPOSITE PARTY -------------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, PAYYANNUR NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, PADMA JUNCTION, KOCHI-35. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE ## RESPONDENTS: APPLICANT AND 1ST OPPOSITE PARTY ---------------------------------------------------------------------------------- 1. SANTHOSH A.R., S/O RAJAPPAN ARAKKAL, ARAKKAL HOUSE, KALLAMPILAVU, CHUNDA P.O., KANNUR DISTRICT. 2. O.SANTHOSH, S/O NARAYANI, ODAL HOUSE, PALAVAYAL P.O., KANNUR DISTRICT. ADV. SRI.V.N.RAMESAN NAMBISAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.F.A.(W.C.Act) No. 165 of 2007 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 20[th] September, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellant is the second opposite party/insurer in a proceedings under Section 22 of Workman's Compensation Act, which challenges the order passed by the Commissioner. The Commissioner awarded compensation in a sum of Rs.2,46,032.64 along with 12% interest from the date of accident till the date of deposit. 2. Two substantial questions of law are raised. They read as follows: (i) Whether the Commissioner is justified in fixing 48% loss of earning capacity when the Medical Board has assessed only 48% disability for comparitively minor injuries., and M.F.A.(W.C.Act) No. 165 of 2007 :2: (ii) Whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of accident when the Supreme Court has held that the interest is payable not from the date of accident, but only from the date of adjudication of the claim. 3. We heard learned counsel for the appellant and learned counsel for the claimant/workman. 4. The applicant/workman was a driver. He was aged 27 years. While the applicant was driving the vehicle, he turned the vehicle to the other side in order to avoid of the collision with an aged man who was trying to cross the road. The lorry capsized and the applicant sustained severe injuries. Ext.X1 is the disability certificate from the Medical Board, District Hospital, Kannur. AW1 is the applicant/ workman and AW2 is the Civil Surgeon who issued Ext.X1 certificate. The Doctor would say in his evidence that the occupational disability of the applicant is 100% in driving the vehicle. In such circumstances, we see no reason to interfere M.F.A.(W.C.Act) No. 165 of 2007 :3: with the order. 5. The next substantial question of law raised by the learned counsel is regarding payment of interest from the date of 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 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 M.F.A.(W.C.Act) No. 165 of 2007 :4: 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 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 M.F.A.(W.C.Act) No. 165 of 2007 **==> picture [14 x 9] intentionally omitted <==** 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 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 M.F.A.(W.C.Act) No. 165 of 2007 **==> picture [14 x 9] intentionally omitted <==** 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 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 and reject the said contention. 7. Further learned counsel for the appellant would submit that there is a violation of policy condition in carrying several passengers on the platform of the lorry. There is no substantial M.F.A.(W.C.Act) No. 165 of 2007 **==> picture [14 x 9] intentionally omitted <==** question of law raised, as such. We see no merit in this contention also. Accordingly the M.F.A fails and it is accordingly dismissed. ## **Sd/-** **K.M.JOSEPH, (JUDGE)** **Sd/M. L. JOSEPH FRANCIS, (JUDGE)** dl/ // TRUE COPY // PA TO JUDGE