The Oriental Insurance Co. Ltd. v. Muthubi and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 MFA.No. 140 of 2011 ---------------------------WCC.104/2004 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), KOZHIKODE. .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, OPP. NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): 1ST OPPOSITE PARTY AND APPLICANTS: ------------------------------------------------------------------------------------- 1. MUTHUBI, W/O. KUNHATTA THANGAL, ERANHIKKAL HOUSE, P.O.NADAPURAM, VATAKARA TALUK, KOZHIKODE-673 504. 2. KUNHAMI, W/O. KODOTH MAMOO -DO-. 3. SAREENA, D/O. KODOTH MAMOO -DO4. SHAMEENA, D/O. KODOTH MAMOO. -DO- 4. SHAMEENA, D/O. KODOTH MAMOO. 5. SALEENA, D/O. KODOTH MAMOO, KALLARAKKAL THAZHA P.O., NADAPURAM, VATAKARA TALUK, KOZHIKODE-673 504. ## 6. SABNA, D/O. KODOTH MAMOO, KOLATHIL HOUSE, OLINGARA, ERAVIMANGALAM, CHERAKKARA, MALAPPURM DISTRICT (MINOR), REPRESENTED BY SMT. SALEENA, MOTHER, PIN-670 104. R1 TO R5 BY ADV. SRI.MOHANAN V.T.K. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.M.JOSEPH & A. M. SHAFFIQUE, JJ.** ------------------------------------------------------- M.F.A.(WCC) No.140 of 2011 ----------------------------------------Dated, this the 16[th] day of December, 2011 ## J U D G M E N T ## K.M.Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded a sum of Rs.3,32,580/- with interest at 12% from 21.1.2004. 2. We heard the learned counsel for the appellant and learned counsel for the respondents. Two substantial questions of law which have been projected by the appellant are as follows: It is contended that the Commissioner has acted illegally in fixing the date of birth as 10.6.1957. The Commissioner relied on the admission register essentially to arrive at the conclusion that the date of birth of the deceased was 10.6.1957. According to the learned counsel for the appellant, the date of birth should have been 15.3.1948 as is revealed from Ext.A5 which is the driving licence particulars obtained from the Regional Transport Office, Vatakara and Ext.X1 series produced by the Regional Transport Officer, Vatakara. The next question of law is regarding award of interest from the date of accident. MFA 140/2011 -2- 3. The learned counsel for the respondents supported the order. 4. The basis for the building up of the first question of law lies in the following facts: Before the commissioner, the driving licence of the deceased workman apparently was made available which showed the date of birth as contended by the learned counsel for the appellant, that is, 15.3.1948. Following is the reasoning of the Commissioner: “Applicant side filed petition to call for Admission Register and Attendance Register from Govt.U.P.School, Nadapuram. Headmistress of the school has produced Admission Register (Ext.A6) and attendance register for the year 1966 (Ext.A7). As per the Abstract of Admission Register (Ext.A3) the admission No.of the deceased Mamoo was 871. But the half page of the relevant entry was torn out (Ext.A6). Attendance Register for the month of June 1966 (Ext.A7) against the name of Mamoo, Kodoth House in the column for date of birth it was written as 10.06.57 and in the column for admission No. it was written 871 against the name Mamoo. The Attendance Register was for the year 1966 of the students of III std. The contention of opposite party No.2 was that father's name is not mentioned in it. Driving licence is giving on the basis of application submitted by individuals along with the MFA 140/2011 -3- proof of age. In this case the Regional Transport Officer replied that those records of the deceased are not available with them. The Admission Register and Attendance Register produced belongs to a Government School. In the circumstance I took the age mentioned in the Abstract of Admission Register (Ext.A3) of the deceased i.e. 10.06.1957 as such he was completed 46 years of age at the time of accident and death.” 5. We have perused the records also. It is true that, as contended by the learned counsel for the appellant, Ext.A6 Admission Register relied on by the claimants may not give any detail regarding the age of the deceased workman as such. The admission Number as evident from Ext.A3 relating to the deceased Mamoo is 871. We could not find any detail about Mamoo in Ext.A6 which is relatable to 871. To that extent the appellant may be justified in contending that Ext.A3 Admission Register cannot be relied on. But, we cannot at the same time overlook the fact that not only the admission Number of the deceased Mamoo shown as 871 in Ext.A3 which is Extract of Admission Register, there is further support which could be derived from Ext.A7 which is the Attendance Register for the month of June, 1966. The Attendance Register related to MFA 140/2011 -4- students of III standard. Now, we notice the contention of the appellant is that the name of the father of the deceased Mamoo is not noted therein. The initial noted in Ext.A7 Attendance Register is 'E' whereas the family name of the deceased was Kodoth. 6. We must note that in the Admission Extract there is an admission Number which is already noted as 871. In A3 Extract of Admission Register Mayankutty is noted against the column parent/guardian. What is significant is it is stated as Mayankutty Edappara. So also after the name Mamoo it is written Edappara, Kodoth House. In Ext.A7 Attendance Register after the name Mamoo initial 'E' appears. Appellant relies on the absence of the letter 'K'. 'K' would have stood for Kodoth which is the house name. But, it is quite possible that just as it is noted Mayankutty Edappara likewise as against Mamoo also the letter 'E' stood for Edappara. More importantly, going by the Extract of Admission Register the date of admission is noted as 24.5.63. After three years, if he was admitted in the Ist standard in 1963 he would be in the 3[rd] standard and in fact Ext.A7 purports to be the attendance register for the 3[rd] standard. If that be so, the document to that extent then supports each other. It is difficult to believe that Ext.A7 would have been written for the purpose of the MFA 140/2011 -5- case. In Ext.A7, the admission number of Mamoo is shown as 871 and his date of birth as 10.6.57. More importantly, we must remind ourselves that we are dealing with an appeal under Section 30 of the Workmen's Compensation Act which requires existence of a substantial question of law. No doubt, learned counsel for the appellant submits that there is question of law. Finding of fact which really involves appreciation of evidence need not result in all cases a substantial question of law. It may arise if a finding of fact is perverse. Here, the authority who considered the matters has in fact also taken note that in Ext.A6 admission register a portion is torn off. But, after discussing Ext.A7 also he arrives at a conclusion. This, according to us, falls within the realm of appreciation of evidence. Even if finding of fact is erroneous as such, in our view, it will not result in a substantial question of law. That is the intention of the Legislature as evident from insisting on existence of substantial question of law. Therefore, we are of the view that in the facts of this case as far as the first question of law is concerned there is no merit in the case of the appellant and we reject the contention of the learned counsel for the appellant. 7. The next question of law is regarding award of interest from the date of accident. Learned counsel would MFA 140/2011 -6- 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 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 MFA 140/2011 -7- 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 & 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.” MFA 140/2011 -8- 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. 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. We also notice that this is a case of death and hence we dismiss the appeal. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS