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Jhala @ Jhala Ram v/s Narsingha Ram & Others

    Civil Misc. Appeal No. 700 of 1998

    Decided On, 14 July 2011

    At, High Court of Rajasthan


    For the Appellant: Surendra Surana, Advocate. For the Respondents: Jagdish Vyas, Advocate.

Judgment Text

1. Heard learned counsels.

2. This appeal is directed against the order dated 1/7/1998 passed by the Workmen Compensation Commission, Sirohi deciding claim case no.W.C./NF/23/1997 (Jhala @ Jhalia v. Narsingh Ram & ors.)

3. The claimant applicant Jhala suffered injury while he was working on truck No. RJW 1400 for carrying on stone and on account of rash and negligent driving, the said truck met with an accident on 24/1/1997 and as a result thereof the claimant applicant suffered fracture of hip bone and injury on head. The claim petition was filed for compensation of Rs.2 lacs. The learned Workmen Compensation Commissioner relying upon Ex.9, the medical certificate given by Medical Jurist, Govt. Hospital, Sirohi, determined compensation of Rs.66,852/- on the basis of 30% disability for such fracture. The learned Commissioner, however, did not award any interest nor imposed any penalty on the respondent employer in terms of Section 4 A (3) of the Workmen Compensation Act, 1923.

4. Being aggrieved of the said award, the claimant has approached this Court by way of present appeal.

5. Learned counsel for the appellant urged that amount of compensation is less and since permanent disability was caused to the claimant on account of injuries suffered by him, the entire claim of Rs.2 lacs deserves to be allowed. The ground relating to non-payment of interest and non-imposition of penalty have also been raised in this appeal.

6. Having heard the learned counsel, this Court is of the opinion that the present appeal deserves to be partly allowed to the extent of award of interest also. There is no material in the claim of the appellant that compensation beyond Rs.66,852/- also deserves to be granted to him on account of permanent disability to the extent of 30% caused by the injuries, even though it has been contended by the learned counsel for the insurer, Mr. Jagdish Vyas that nature of fracture, which the claimant suffered, does not result in permanent disability, which contention cannot be accepted because in Ex.9, medical certificate, the Medical Jurist has clearly given his opinion that other said injury resulted in disability to the extent of 30%, though word `permanent' is not there in the said certificate. No adverse inference can be drawn on the basis of said medical certificate, therefore, the award of compensation on the basis of 30% disability is found to be justified. In the absence of any other evidence, the claim does not deserve to be enhanced further as claimed by the appellant, however, as far as interest amount is concerned, the same is liable to be paid to the claimant in terms of Section 4A (3) of the Act.

7. This Court in a recent decision in the case of National Insurance Company Ltd. v. Udi Bai & ors. (SBCMA No. 1308/2011) decided on 11/7/2011 held that compensation under the provisions of Act of 1923 falls due on the date of accident itself when the death or bodily injury is caused to the claimant following the Supreme Court decision in the case of Pratap Narain Singh Deo v. Shrinivas Sabata & anr., AIR 1976 SC 222. The relevant portion of the said judgment is quoted below:-

9. As far as the question of interest is concerned, this Court finds that later two decisions relied upon by the learned counsel for the appellant- Insurance Company did not refer or take into account the binding precedents in the form of Constitution Bench judgment in the case of Pratap Narain Singh Deo and later 3 Judges Bench judgment in the case of Padma Srinivasan v. Premier Insurance Co. Ltd., AIR 1982 SC 836.

10. The basic premise taken by 2 Judges Bench in the aforesaid two later decisions in the cases of Mubasir Ahmed, (MACD 2007 (1) SC 402) and Kamla Chaturvedi, (MACD 2009 (SC) 4 (supra) is, with great respect, ignored the statutory language and binding precedents as aforesaid. The relevant paras in the later decision, in the case of Kamla Chaturvedi is quoted below for ready reference:

"8. In National Insurance Co. Ltd. v. Mubasir Ahmed & Anr., (2007) 2 SCC 349 it was, inter-alia, held as follows:-

"Interest is payable under Section 4-A (3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh, (1998) 9 SCC 134. By amending Act 30 of 1995, Section 4-A of the Act was amended, inter-alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously, it cannot be the date of accident. Since, no indication is there as to when it becomes due, (Sic!) it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A (1) prescribed the compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of subsec. (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise.

9. In view of what has been stated in Mubasir Ahmed's case (supra) the liability for interest would be in terms of what has been stated in paragraph 9 of the judgment."

12. The another three Judges Bench of Apex Court in the case of Padma Srinivasan (supra) while dealing with the compensation case under Motor Vehicle Act, has held that the law which applies for determining the quantum of damages is the one which is in force on the date on which the breach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made. Upholding the Full Bench view of Karnataka High Court in the case of Sanjiva Shetty S. v. Anantha, reported in AIR 1979 Kant. 1, the Apex Court held that material date for ascertaining the accident of liability of insurer the date of accrual of cause of action for a claim arising out of an accident, which in general would be the date of accident and, therefore, insurer's liability arising out of accident, which happens after March, 2, 1979 has to be determined on the basis of amended provision of Section 95 (2) (a) of the Act even though the policy of insurance may have been issued prior to the date of amendment i.e. prior to March 2, 1979.

13. Thus obviously, it is the date of accident which is the relevant date giving rise to cause of action on which date the compensation falls due and date of adjudication is a fortuitous circumstance depending upon litigatory process and same cannot deprive the claim of the interest, which is the part of the compensation, which falls due on the date of accident itself. The later decision in the cases of Mubasir Ahmed and Kamla Chaturvedi (supra) rendered by the Two Judges Bench of Apex Court obviously ignored the relevant part of statutory provision and the binding precedents including one by the Constitution Bench and, th

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erefore, have to be held perineurium to that extent, and they cannot lend any assistance to the arguments of the learned counsel for the appellant- Insurance Company. Learned Workmen's Compensation Commissioner was justified in directing the payment of compensation from the date of accident itself. 14. There is no force in the present appeal of insurance company and same is accordingly dismissed. No costs. 8. Accordingly, this appeal is partly allowed and the impugned award dated 1/7/1998 passed by the learned Workmen Compensation Commissioner is modified to the extent that claimant shall be entitled to interest @ 12% on the awarded sum of Rs.66,852/- from one month from the date of accident i.e. 24/1/1997 till the date of payment of such compensation. The remaining part of the award is maintained. Appeal partly allowed.

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