The Oriental Insurance Co. Ltd. v. Pushparajan and G. John

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 MFA.No. 50 of 2007() -------------------WCC.108/1999 of W.C.C.,ERNAKULAM .................... APPELLANT: 2ND OPPOSITE PARTY --------------------------------- THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY THE AUTHORISED SIGNATORY, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, KOCHI-682 018. BY ADV. SRI.M.JACOB MURICKAN SRI.A.K.RAMACHANDRAN RESPONDENTS: APPLICANT AND 1ST OPPOSITE PARTY ------------------------------------------------ 1. PUSHPARAJAN, S/O. RAMACHANDRA CHETTIAR, THERUVIL KIZHAKKETHARA HOUSE, CHENISSERY BHAGOM, CHAVARA P.O., KOLLAM DISTRICT. 2. G.JOHN, S/O. V.GEORGE, MELAYIL HOUSE, MATHILIL P.O., PERINAD, KOLLAM-691 601. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** M.F.A. (W.C. Act) No.50 of 2007 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 18[th] day of August, 2011 ## **JUDGMENT** ## K.M. Joseph J., The appellant is the second opposite party in an application filed by the 1[st] respondent herein seeking compensation under Section 22 of the Workmen's Compensation Act. The Commissioner ordered a compensation of Rs.98,312/- along with 12% interest from 12.3.99 till the date of deposit. In arriving the said sum, the Commissioner had taken income of the applicant at Rs.3,000/- per month. 2. We heard learned counsel for the appellant. 3. Two substantial questions of law have been raised by the counsel for the appellant. The following is the first question of law M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** raised: a)Whether the Commissioner for Workmen's Compensation was correct in determining the compensation payable in this case as per the provisions introduced by the Workmen's Compensation (Amendment) Act, 200 (Act 46 of 2000), when the accident happened on 12.3.1999, prior to the date of commencement of the above Amendment Act, and b) Whether the compensation granted in this case is sustainable as per the principles laid down by the Apex Court in K.S.E.B v. Valsala (1993(3) KLT 348). 4. Secondly, learned counsel for the appellant also has raised a substantial question of law on the basis that interest should not have been ordered from the date of accident with reference to the decision reported in **National Insurance Co. Ltd. v. Mubasir Ahmed & another** (2007 AIR SCW, 1265). 5. As far as the first substantial question of law is concerned, the contention is that the accident, in this case, took place on 12.3.1999. He would point out that by Amendment Act 46 of 2000, the income limited was increased from Rs.2,000/- to Rs.4,000/-. ## M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** That amendment came into force on 8.12.2000. In this case, therefore, the Commissioner acted illegally in taking the income at Rs.3,000/- which is in excess of limit of Rs.2,000/-, which was the prevailing rate. In this connection, he relied on the judgment of the Apex Court reported in **K.S.E.B. v. Valsala** (1999 (3) KLT 348). Therein the Apex Court held as follows: “Our attention has also been drawn to a judgment of the Full Bench of the Kerala High Court in **United India Insurance Co. Ltd. v. Alavi** (1998(1) KLT 951 (FB) wherein the Full Bench precisely considered the same question and examined both the above noted judgments. It took the view that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable on the date of the accident and not the amount of compensation payable on account of the amendment made in 1995, which is relevant. The decision of the Full Bench of the Kerala High Court, to the extent it is in accord with the judgment of the large Bench of this Court in **Pratap Narain Deo v. Srinivas Sabata & anr.** M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** (1976 (1) SCC 289 lays down the correct law and we approve it.” 6. We are, therefore, of the view that the appellant is justified in contending that the income can be taken only as Rs.2,000/- per month. On this basis the amount due will be calculated as Rs.65,541/-. It is submitted that an amount of Rs.65,000/- has already been withdrawn by the applicant as per this Court Order. It is also submitted by the learned counsel for the appellant that a total sum of Rs.1,82,152/- has been deposited by the appellant. 7. We now pass on to the next question, which relates to the payment of interest from the date of accident. 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.** M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** **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 to contend that the wrong 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.” No doubt, it is pointed out that the said judgment related to a scheduled injury and the facts were different. M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** 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 M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** 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 before the Supreme Court. 9. 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. 9. Consequently, we modify the order of the Commissioner and direct that the appellant will be liable to pay only a sum of Rs.65,541/- with interest at the rate of 12% on the said amount from the date of accident till the date of deposit. The amount which has M.F.A.(W.C. Act) No.50 of 2007 **==> picture [14 x 9] intentionally omitted <==** been deposited by the appellant in excess of what is ordered can be withdrawn by it. **K.M.JOSEPH, (JUDGE)** **M. L. JOSEPH FRANCIS, (JUDGE)** dl/