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2001 DIGILAW 205 (KAR)

ORIENTAL INSURANCE CO. LTD v. SHABIR AHMED

2001-03-01

CHIDANANDA ULLAL

body2001
CHIDANANDA ULLAL, J. ( 1 ) THIS appeal is filed by the insurance company to challenge the order dated 9. 9. 1997 in case No. Wca:cr:no. 28 of 1995, passed by the workmen's compensation commissioner, sub-division i, bangalore. In passing the said order, the workmen's compensation commissioner had awarded Rs. 2,21,370 as compensation payable to the l. rs. Of the deceased respondent nos. 2 and 3. ( 2 ) THE appellant insurance company is represented by the learned counsel Mr. S. p. shankar. On the other side, the respondent No. 1 owner is represented by Mr. Chennaraya reddy, whereas, respondent nos. 2 and 3 contesting respondents are represented by Mr. T. V. Ramesh. ( 3 ) MR. S. P. Shankar while urging the grounds made out in the appeal memorandum, more specifically, the ground No. 2, had taken me through the impugned order under challenge. It was his argument that the workmen's compensation commissioner, sub-division No. I, Bangalore, henceforth in brief referred to as 'the wcc' had made mistake in the matter of the application of the law under Section 4 (1) (a) of the workmen's compensation Act, henceforth 'the act', inasmuch as he had taken the wages of the deceased at Rs. 2,000 per month and further by taking one-half thereof, multiplied the same by the relevant factor: 221. 37 and thus arrived at the figure 2,21,370. It was pointed out by him that since the accident in question had taken place on 21. 4. 1994 and that since the amended provision to Section 4 came to be amended only on 15. 9. 1995, the wcc would have calculated the compensation as per the original provision in Section as it stood before amendment and that if that was done by the wcc that way, he would have taken the wages of the deceased at Rs. 1,000 per month and that thereafter he would have taken 40 per cent thereof to be multiplied by the said factor, 221. 37. He further submitted that if that was the position then the awardable compensation by the wcc would have been Rs. 88,548 only and not beyond. 1,000 per month and that thereafter he would have taken 40 per cent thereof to be multiplied by the said factor, 221. 37. He further submitted that if that was the position then the awardable compensation by the wcc would have been Rs. 88,548 only and not beyond. ( 4 ) IN support of his argument that the amended provision in Section 4 of the act was not applicable and that what was applicable was the provision to section 4 as stood earlier to the amendment, he had cited decision of the Supreme Court in case of Kerala State Electricity Board V. Valsala k. , 2000 ACJ 5 (sc ). ( 5 ) THEREFORE, he prayed that the instant appeal be allowed in part to restrict the award to Rs. 88,548 together with interest at 6 per cent per annum. ( 6 ) THE learned counsel appearing for the contesting respondent nos. 2 and 3, Mr. N. Gopalakrishna appearing along with T. V. Ramesh at the outset argued that the appellant insurance company could not maintain an appeal when it had challenged only the quantum part of the impugned award. In support of his argument, he had also cited before me a decision in Oriental Insurance Co. Ltd. V. Mohammed Haneef, 1997 ACJ 461 (karnataka) and further an unreported decision of the learned single judge of this court in m. f. a. No. 4455 of 1998 decided on 10. 10. 2000. According to him if at all the appellant insurance company had to challenge the impugned order insofar as the same related to quantum of the sum awarded, the appellant insurance company would have filed a writ petition and not an appeal as it did before this court. That argument was advanced by Mr. N. Gopalakrishna on the ground that grounds available to the insurance company are limited to the grounds made under Section 149 (2) of the Motor Vehicles Act, 1988 and it was also pointed out by him in this context that the appellant insurance company did not file an application under Section 170 of the Motor Vehicles Act to contest the claim of the respondent nos. 2 and 3 on other grounds, no matter that the respondent No. 1 owner remained absent before the wcc upon filing vakalath on his behalf. 2 and 3 on other grounds, no matter that the respondent No. 1 owner remained absent before the wcc upon filing vakalath on his behalf. He also added that in the instant appeal there is no point of law involved to challenge the impugned award passed by the wcc. ( 7 ) IN the light of the above submissions made by the rival parties, I have gone through the impugned order under challenge. I have also gone through the decisions cited by the learned counsel appearing for both the sides. ( 8 ) THOUGH it was vehemently argued by Mr. N. Gopalakrishna that the appellant insurance company would not have challenged the impugned order to challenge the quantum part of the award, the argument advanced by Mr. N. Gopalakrishna is not acceptable to me in view of the circumstances that the wcc had admittedly applied the wrong provision of law to the facts of the case before him. Admittedly, what was applicable to the case of the respondent nos. 2 and 3 was the provision in Section 4 of the workmen's compensation act as it stood earlier to the amendment of that provision w. e. f. 15. 9. 1995. ( 9 ) IT is not in dispute before me that the provision under Section 4 as it stood earlier to 15. 9. 1995 was that the wages had to be taken as Rs. 1,000 per month and that for the purpose of working out the compensation 40 per cent thereof had to be taken in case of death of a workman to be multiplied by the relevant factor. Admittedly, if the provision under Section 4 had to be taken as above earlier to amendment of the provision in question on 15. 9. 95, the compensation awardable had to be Rs. 88,548 as set out in ground No. 2 of the appeal memorandum (40 per cent of 1,000 multiplied by factor: 221. 37 ). Even in valsala k. 's case, 2000 ACJ 5 (sc), Mr. Shankar had cited before me, it is clear therefrom that when the accident had taken place prior to amendment of Section 4 in the year 1995, the claim had to be worked out as the said provision stood earlier to the amendment. It is relevant to quote what the Supreme Court observed in para 5 of the said decision. Shankar had cited before me, it is clear therefrom that when the accident had taken place prior to amendment of Section 4 in the year 1995, the claim had to be worked out as the said provision stood earlier to the amendment. It is relevant to quote what the Supreme Court observed in para 5 of the said decision. To quote the same, the same reads as hereunder:"our attention has also been drawn to a judgment of the full bench of Kerala high court in the case of United India Insurance Co. Ltd. V. Alavi, 1998 ACJ 1048 (kerala), 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 larger bench of this court in Pratap Narain Singh Deo V. Srinivas Sabata, 1976 ACJ 141 (sc), lays down the correct law and we approve it. " ( 10 ) AS i see emphasis in the argument of learned counsel for the respondent nos. 2 and 3, of course, based on the decision of the learned single judge of this court was to the effect that it is not available for the insurance company to challenge the award on the point of quantum. That argument of Mr. Gopalakrishna would have been well received by me if the appeal by the insurance company was merely on the ground of quantum alone but unfortunately for the respondent nos. 2 and 3, the argument of Mr. Shankar appearing for the appellant insurance company was that the wcc had faltered in the matter of application of the law to the facts of the case before me. 2 and 3, the argument of Mr. Shankar appearing for the appellant insurance company was that the wcc had faltered in the matter of application of the law to the facts of the case before me. ( 11 ) IN view of the circumstances that the Supreme Court had held as above, in the above case, i. e. , valsala k. 's, 2000 ACJ 5 (sc), i feel that there is a question of law involved in the instant case and as such, the appeal filed by the appellant insurance company has to be entertained, no matter that, in that process, the quantum of the award in a way came to be challenged indirectly. ( 12 ) IN that view, matter merits consideration. Accordingly, the appeal stands allowed in part and the impugned award passed by the wcc awarding compensation of Rs. 2,21,378 or to round it off at Rs. 2,21,370 together with interest at 6 per cent per annum stands modified to Rs. 88,548 with 6 per cent interest per annum. ( 13 ) IF this court were to accept the argument as above advanced by Mr. Gopalakrishna, this court had to be simply an onlooker and silent spectator to confirm the illegal award of the wcc to the peril of the appellant insurance company. In this context, I have to observe here that appellant insurance company is a public corporation and its money belongs to society at large and as such, courts have to safeguard its money to the last rupee with care and duty consciousness, of course within the four corners of law. This is how, I have seen things in repelling the argument of the learned counsel for the respondentsclaimants in this case. ( 14 ) IN view of the circumstances that the appellant insurance company had deposited a sum of Rs. 2,21,370, registry is directed to pay the respondent nos. 2 and 3 the award amount as hereinabove modified together with interest at 6 per cent, of course, after giving deduction to what the respondent nos. 2 and 3 had already withdrawn. The registry is also directed to refund the excess amount, if any, to the appellant insurance company at the earliest. Appeal allowed. --- *** --- .