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2003 DIGILAW 168 (KER)

Jo Joseph v. Sebastian Mathew

2003-03-03

K.A.ABDUL GAFOOR, K.THANKAPPAN

body2003
JUDGMENT K.A. Abdul Gafoor, J. 1. The injured workman has come up with this appeal raising two substantial questions of law to maintain this appeal under S.30 of the Workmen's Compensation Act (for short "the Act"). First among the questions of law raised is whether, when there was delay in payment of compensation, the commissioner is obliged to award interest in terms of S.4 A of the Act. Second among the questions is when the qualified medical practitioner had assessed the disability at a particular percentage, is not the Commissioner obliged to, if proved that disability resulted in total deprival of the work, to award compensation as if there was permanent total disability. 2. The accident occurred on 16.3.1989. In terms of S.4A(2) and (3), the employer was liable to pay the admitted compensation within one month ending by 16.4.1989. In terms of sub-s.(3) of S.4A, when there was delay in paying the compensation due under the Act beyond one month from the date it fell due, "........ the Commissioner shall (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon. ...." Therefore, the commissioner cannot, but award interest when there was default in payment of compensation. 3. In this case, the Commissioner should have awarded interest, the counsel contends. We accept the said contention because in terms of the mandatory nature of Sub-section(3) of S.4 A, the Commissioner is obliged to award interest if the employer had defaulted in paying the compensation beyond one month. In this case, until the date of the order, no compensation had been paid. Therefore, this is a case where the appellant is entitled to interest. 4. What shall be the rate of interest is the next question. It is contended that as the amount is not yet paid, even now or even until the date of appeal, the rate of interest payable on the payment date shall have to be awarded. The payment did not take place even until Act 30 of 1995 amending sub-section (3) of S.4 A was enforced on 15.9.1995. As per the said amendment, the rate of interest payable shall be 12% or such other higher market rate of interest as found by the Commissioner. The payment did not take place even until Act 30 of 1995 amending sub-section (3) of S.4 A was enforced on 15.9.1995. As per the said amendment, the rate of interest payable shall be 12% or such other higher market rate of interest as found by the Commissioner. As no payment has been effected as on 15.9.1995, necessarily the rate of interest now available in terms of the statute shall be awarded, the counsel contends. 5. We cannot agree to this contention, in the light of the decision of the Supreme Court reported in K.S.E.B. v. Valsala ( 1999 (3) KLT 348 ) and a Full Bench decision of this court reported in United India Insurance Co. Ltd. v. Alavi ( 1998 (1) KLT 951 ). 6. In the Full Bench decision, this court considered the applicability of the amendment to the provisions of S.4 and 4A by Act 30 of 1995 which came into force on 15.9.1995. This court made it clear as follows: "We have, therefore, no doubt in our minds that the amended provisions in S.4 and 4A were intended to operate only prospectively, that too from the dates fixed by the Central Government in accordance with S.1(2) of Act 30 of 1995". Adverting to each of the cases considered by the Commissioner, in Para.30 and 31 and the subsequent paragraphs, the Full Bench awarded only 6% interest on the compensation payable in terms of. S.4. Thus, it is clear from the Full Bench decision in respect of the accident which had occured prior to the enforcement of Act 30 of 1995 amending the rate of compensation as well as rate of interest, that the Full Bench had awarded only the rate available under the unamended provisions. 7. In the decision in K.S.E.B. v. Valsala, the Supreme Court has made it clear that the workman becomes entitled to get compensation on the moment he suffers personal injury and the law applicable is that existing on the date of the accident. Necessarily, it shall apply to the interest rate as well. 8. The counsel for the appellant has pointed out a later decision reported in Oriental Insurance Co. Necessarily, it shall apply to the interest rate as well. 8. The counsel for the appellant has pointed out a later decision reported in Oriental Insurance Co. v. Mohammed ( 2002 (1) KLT 131 ) Where Division Bench has taken the view that as payment of interest depends upon the time of payment of compensation, the workmen is entitled to get the amount of compensation with 12% simple interest per annum from the date of accident till payment, even though the accident had occured earlier than the enforcement of Act 30 of 1995. The decision of the Full Bench of this court referred to earlier is not seen brought to the notice of that Division Bench. 9. When we have noticed the decision of the Full Bench which has held that "the amended provisions of S.4 and 4A were intended to operate only prospectively", we cannot apply the revised enhanced and amended rate of interest which came into force only on 15.9.1995 in respect of an accident which occured on 16.3.1989. As the Division Bench has made applicable the revised rate of interest without noticing the decision of the Full Bench, necessarily, we have to follow the decision of the Full Bench in this case. 10. The compensation is payable within one month from the date of accident. It is the date fixed statutorily for payment of compensation. If there arises any default, necessarily the statute provides for payment of interest. Thus, payment of interest will accrue from the date of expiry of the period mentioned by the statute for payment of compensation. When the statute has prescribed a . particular rate of interest, the commissioner cannot enhance that rate applying his discretion in respect of accident occurred prior to 15.9.1995. When the Supreme Court and the Full Bench of this court held that the amended provisions will only have prospective operation, the rate of interest as provided in S.4A(3)(a), as at present, will have only prospective operation. In other words, the interest payable in this case will be as per the unamended provisions which provided only for 6% interest. 11. Accordingly, we hold that the appellant will be entitled to 6% interest from the 16.4.1989, the completion of a period of one month fixed for payment as per S.4A(3). 12. In other words, the interest payable in this case will be as per the unamended provisions which provided only for 6% interest. 11. Accordingly, we hold that the appellant will be entitled to 6% interest from the 16.4.1989, the completion of a period of one month fixed for payment as per S.4A(3). 12. It is also to be noted from the wording of Clause (b) in Sub-section(3) of S.4A that the discretion applicable to the Commissioner to accept the justification of the delay in paying the penalty is not available, to payment of interest. Thus, on any count, the Commissioner should have awarded interest, which we fix at 6%. 13. The other contention raised is with respect of the loss of earning capacity. Admittedly, the injury suffered is not one mentioned in Schedule I to the Act. So going by S.4(1)(c)(ii), the compensation payable shall be: "such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury". 14. In this case, there was a certificate Ext.A2, from the qualified medical practitioner. He assessed permanent disability at 50%. He did not specifically advert to the loss of earning capacity .as a result of the said permanent disablement. It may be probable in certain cases that, the loss of earning capacity may be in excess of the extent of disability. In some cases, the extent of both may be equal. Had it been in excess, the qualified medical practitioner would have necessarily stated so, in Ext.A2. It is not stated. So it has to be presumed that he had assessed the loss of earning capacity as equal to the extent of disablement certified in the certificate. Therefore, the Commissioner could not have granted anything in excess of the assessment made by the qualified medical practitioner, going by the statutory provision contained in S.4(1)(c)(ii) of the Act. Anyhow, in this case, the Commissioner had taken the loss of earning capacity at 60% in spite of 50% certified in Ext. A2. In terms of the Full Bench decision reported in New India Assurance Co. Ltd. v. Sreedharan ( 1995 (1) KLT 275 ), the Commissioner has no jurisdiction to award anything in excess of the percentage certified in Ext.A2, Anyhow, the employer has not, so far, come up in appeal. A2. In terms of the Full Bench decision reported in New India Assurance Co. Ltd. v. Sreedharan ( 1995 (1) KLT 275 ), the Commissioner has no jurisdiction to award anything in excess of the percentage certified in Ext.A2, Anyhow, the employer has not, so far, come up in appeal. So, the claimant cannot contend that even in spite of extent of disability certified in Ext.A2 at 50%, the Commissioner shall assess the extent of loss of earning capacity at 100%. Therefore, we answer the question making it clear that the appellant/claimant could not have claimed anything . more than what had been now awarded. The second question of law is answered against the appellant. Appeal is thus allowed in part as mentioned above, directing payment of interest at 6%. No costs.