New India Assurance Co. Ltd. v. The Secretary, Kalpetta Autorickshaw Drivers Co-operative Society Ltd., Kalpetta, Vyithiri, Wayanad and P. Balan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 MFA.No. 10 of 2009() -------------------WCC.178/2002 of Commissioner for Workmen's Compensation KANNUR .................... APPELLANT(S): -------------- THE NEW INDIA ASSURANCE CO.LTD. M.G.ROAD,ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): 1ST OPPOSITE PARTY AND APPLICANT ----------------------------------------------- 1. THE SECRETARY, KALPETTA AUTORICKSHAW DRIVERS CO-OPERATIVE SOCIETY LTD., KALPETTA, VYTHIRI,WAYANAD. 2. P.BALAN, S/O.MADHAVAN NAIR, KURUP LINE KALPETTA NORTH P.O. EDAPATTY, KALPETTA. ADV. SMT.CELINE JOSEPH FOR R2 SRI.P.K.RAMKUMAR FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------M.F.A. No.10 of 2009 ----------------------------------------------Dated 31[st] 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.1,19,729/- with interest at the rate of 12% from the date of the accident. 2. The Commissioner has proceeded on the basis that the claimant was an autorikshaw driver, who sustained injuries. The injuries are detailed below : “(a) open medial collateral ligament tear (L) knee with a lacerated wound over anteromedial aspect (L) knee, (b) lacerated wound on left hand, © pain all over the body.” 3. Acting on the basis of Ext.A5 disability certificate, where the loss of earning capacity is assessed at 30% and the permanent disability is assessed at 10%, the Commissioner has proceeded to award compensation, taking 30% as the loss of earning capacity. Of the three substantial questions of law raised in the appeal memorandum, learned counsel for the appellant presses 2[nd] and 3[rd] . That is to say, he would submit that Ext.A5 medical certificate, which incidentally is not proved MFA 10/09 2 by examining the medical practitioner, was acted upon, in arriving at the conclusion that there is 30% loss of earning capacity within 8 months from the date of accident. He would point out that having regard to the vocation of the claimant, viz., autorikshaw driving and the fact that the injury is sustained to the left leg and more importantly, the very nature of the injuries, the Commissioner has acted illegally in fixing the loss of earning capacity at 30%. Secondly, he would contend that the Commissioner acted illegally in awarding interest from the date of the accident. 4. Learned counsel for the respondent/claimant supported the order and would submit that as evident from the order itself, the appellant did not make any request before the Commissioner to refer the claimant to the Medical Board and there was no basis for interference. 5. As far as the first question is concerned, acting on the basis of disability certificate issued by a qualified medical practitioner is not something which is impermissible merely for MFA 10/09 3 the reason that the doctor is not examined. We must also not overlook the fact that the appellant did not seek to have the matter referred to a Medical Board. We also have to bear in mind the age of the applicant, which is 52 at the time of the accident. But, at the same time, we cannot completely ignore the nature of the injury, the vocation of the applicant, the impact of the injury on the sustained earning power and the date of issuance of the medical certificate. Having regard to all the inputs, we would think that the loss of earning capacity can be fixed at 17% in place of 30%. On the said basis, the applicant would be entitled to Rs.67,846.32, which is rounded off to Rs.67,846/-. 6. Learned counsel for the appellant 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 MFA 10/09 4 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 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 MFA 10/09 5 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 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 MFA 10/09 6 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. 8. Resultantly, we partly allow the appeal. The impugned order will stand modified and the appellant will be MFA 10/09 7 liable to pay a sum of Rs.67,846/- with interest at 12% as ordered. Any amount which is deposited by the appellant in excess of what is ordered to be paid by this judgment can be withdrawn by it. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.