Second Opposite Party v Branch Manager, National Insurance Company Ltd., Kasaragod

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 29TH AUGUST 2011 / 7TH BHADRA 1933 MFA.No. 45 of 2006 ----------------------------------(AGAINST THE JUDGMENT DATED 22.9.2005 IN W.C.C.NO.203 OF 2002 OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, KANNUR). .................... APPELLANT(S): SECOND OPP.PARTY ---------------------------------------------------- THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., KASARGOD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP.1 --------------------------------------------------------- 1. KUMARA, S/O.AYYAPPA BELCHAPADA, BERIA HOUSE, P.O.PUTTIGE. 2. PAKKEERA PATALI, S/O.KOGGU PATALI, SHEDIKAU HOUSE, KUMBALA P.O., KASARGOD. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.PRAVEEN K. JOY FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M. JOSEPH &** ## **M. L. JOSEPH FRANCIS, JJ.** **-----------------------------------------** ## **M.F.A.(WCC).NO. 45 OF 2006 E** **-----------------------------------------Dated this the 29th August, 2011** ## **JUDGMENT** ## **K.M. Joseph, J.** Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The appellant has been directed to pay a sum of Rs.4,67,136/= with interest at twelve per cent from the date of accident till the date of deposit within thirty days of receipt of the order. 2. Learned counsel for the appellant would essentially raise three issues before us. He would submit that the Commissioner has calculated the compensation on the basis that the respondent/applicant has suffered cent per cent loss of earning capacity. Taking his wage as Rs.4,000/= , the formula reads as follows: _**MFA(WCC).NO.45 OF 2006 E 2**_ **==> picture [275 x 31] intentionally omitted <==** For arriving at the weightage factor 194.64, the Commissioner has found that the age of the applicant was thirtysix at the time of the accident. The Kasaragod District Medical Board certified as per Ext.X1 the visual disability as hundred per cent. Noting that loss of sight is scheduled in the Act as causing hundred per cent loss of earning capacity, the Commissioner treated the case under Section 4(1)(b) of the Act and ordered compensation. 3. Learned counsel for the appellant would contend before us that the applicant had pleaded his age as thirtynine, but the Commissioner has found the age of the applicant to be thirtysix. This was illegal. Learned counsel for the appellant would contend that hundred per cent disability should not have been arrived at. He would further contend that interest should not have been ordered to be paid from the date of the accident. We heard the learned counsel for the respondent also. _**MFA(WCC).NO.45 OF 2006 E**_ _**3**_ 4. As far as the first question is concerned as to whether the Commissioner has acted illegally in taking the age as thirtysix, we would think that the appellant is justified in attacking the order. The pleading of the applicant was that he was aged thirtynine at the time of accident. The Commissioner has, however, proceeded to observe that Ext.A6 Electoral Identity Card proves that he had completed thirtysix years of age at the time of accident. Counsel for the appellant is justified in pointing out that the identity card would not reveal the date of birth. He also, in fact, made available the licence of the applicant and pointed out that the date of birth of the applicant was 6.1.1963 as per the entries made therein. This fortifies the appellant in challenging the age of the applicant taken by the Commissioner as thirtysix years. The Commissioner ought not to have departed from the pleading and allowed the evidence against the plea. This we find, is impermissible and accordingly, we uphold the said contention and hold that the age of the applicant has to be treated as thirtynine years instead of thirtysix. _**MFA(WCC).NO.45 OF 2006 E**_ _**4**_ 5. As far as the second point is concerned, no doubt, this is a case where the respondent was of thirtynine years of age at the time of accident. He sustained serious injuries, that is, laceration in the right check just below right lower eye measuring about 3 cms., right globe of eye ruptured with collapse of eye ball and extrusion of some eye ball content, while he was under the employment of the Ist opposite party in his lorry. The following is the finding of the Medical Board: _“We, the members of District Medical Board constituted on this day carefully examined Mr. Kumara, S/o.Ayyappa, Belichappada, Beria House, P.O. Puthige, on 28/01/2005 and found that he had sustained the following injuries due to the bursting of fan belt of lorry engine on 4/8/2002, Rupture of the right eye with collapse of the eye ball. At present his right eye is phthysical and he is having post traumatic blindness of left eye also. At present his visual disability is 100% (hundred per cent).”_ _**MFA(WCC).NO.45 OF 2006 E**_ _**5**_ 6. In the light of this, we notice that the learned counsel for the appellant does not seriously dispute that the finding that the applicant has suffered hundred per cent loss of earning capacity, cannot be interfered with in proceedings under Section 30 of the Act. We think that there is no illegality committed by the Commissioner in acting upon the Report of the Medical Board finding that the applicant is entitled to claim under Section 4(1)(b) of the Act and we reject that contention. 7. The next question relates to payment of interest. Learned senior 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 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 ## _**MFA(WCC).NO.45 OF 2006 E**_ _**6**_ 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 Commissioner was fully justified in making an order for the payment of interest and the penalty.” It is no doubt 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 &** _**MFA(WCC).NO.45 OF 2006 E**_ _**7**_ **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 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. _**MFA(WCC).NO.45 OF 2006 E**_ _**8**_ 8. 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. The upshot of the above discussion is that the Appeal is partly allowed and applying the weightage of 186.90 for the age of thirtynine, compensation will work out at Rs. 4,48,560/= and the appellant will be liable to pay Rs.4,48,560/= with interest at twelve per cent as ordered. Sd/= **K.M. JOSEPH,** **JUDGE** **Sd/= M.L. JOSEPH FRANCIS, JUDGE** ## **kbk.** ## **// True Copy //** **PS to Judge** # _**MFA(WCC).NO.45 OF 2006 E 9**_