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2006 DIGILAW 129 (CAL)

GURDEB SINGH v. NEW INDIA ASSURANCE CO. LTD.

2006-03-03

P.K.SAMANTA, S.P.TALUKDAR

body2006
SAMANTA AND TALUKDAR, JJ. ( 1 ) THIS appeal is by the claimant-appellant for enhancement of the award made by the learned commissioner, Workmen's Compensation court in Claim Case No. 401 of 2002. ( 2 ) THE only point urged on behalf of the claimant-appellant is that learned Commissioner acted illegally by not accepting the evidence of the employer of the victim who was a driver and died while he was in employment. ( 3 ) IT appears from the impugned judgment that employer of the victim deposed that he used to pay Rs. 4,200 per month to his driver. The salary certificate issued by him was not proved according to law. The selfsame owner in an investigation conducted by the insurance company deposed by saying that he used to pay the victim driver at the rate of Rs. 3,000 per month. Since the said employer deposed differently on two different occasions, the learned commissioner for the purpose of doing justice to this case accepted the amount as deposed by the said employer before the Investigating Officer of the insurance company and determined the amount of compensation accordingly. ( 4 ) IN the facts and circumstances as above and in view of the fact that the employer of the victim failed to prove that he paid at the rate of Rs. 4,200 per month to the victim by way of any cogent evidence, we are of the view that the finding made by the learned Commissioner that the salary of the deceased victim was at the rate of rs. 3,000 per month cannot be assailed in this appeal. Accordingly, we do not find any illegality and/or any irregularity in the impugned judgment and award. The same is, therefore, cannot be interfered with in this appeal. This appeal accordingly stands dismissed so far as the quantum of amount of compensation has been determined by the learned Commissioner. ( 5 ) HOWEVER, claimant-appellant shall also be entitled to interest on the awarded amount as he was entitled to the same within a period of one month from the date of accident as per the provisions of subsection (3) of section 4-A of Workmen's compensation Act, 1923. We, therefore, direct the respondent insurance company to pay interest on the awarded amount at the rate of 6 per cent per annum from 9. 10. We, therefore, direct the respondent insurance company to pay interest on the awarded amount at the rate of 6 per cent per annum from 9. 10. 2002 as being the date after 1 month from the date of accident till date on which the aforesaid amount was deposited with the learned Commissioner. Such interest amount shall accordingly be deposited before the learned Commissioner within a period of eight weeks from date. Upon such deposit the learned Commissioner shall disburse the same to the claimant-appellant upon identification and receipt immediately thereafter. ( 6 ) THE lower court records be sent down immediately. ( 7 ) THIS appeal is thus disposed of. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. 3. 3. 2006 ( 8 ) THIS is an application for review of the judgment and order dated 30. 9. 2005 passed in the appeal being F. M. A. No. 284 of 2005. The same said appeal was preferred by claimant-appellant against the award passed by learned Commissioner, workmen's Compensation Court, West bengal in Claim Case No. 401 of 2002. The said claim case in its turn was filed by the claimant-appellant for accidental death of the driver of a vehicle in a motor accident. The appeal was preferred by the claimant-appellant for enhancement of the amount as awarded by the Commissioner. This court upon contested hearing of the same though dismissed the appeal by affirming the awarded amount as passed by the Commissioner but directed the insurer to pay interest on the aforesaid awarded amount at the rate of 6 per cent per annum from 9. 10. 2002 as being the date after one month from the date of accident till the date on which the aforesaid awarded amount was deposited with the Commissioner. Mr. K. Bhattacharjee in support of the review application referred to a Supreme Court decision in P. J. Narayan v. Union of India, 2004 ACJ 452 (SC), wherein it has been observed that in the absence of any statute to that effect insurance company cannot be forced by courts to take the liabilities for payment of interest which they did not take by its policy, which is in substance a contract of insurance between the insurer and insured on its terms as incorporated therein. ( 9 ) FIRSTLY, the aforesaid point was not urged at the time of hearing of this appeal. Secondly, the insurance policy has not been produced by the applicant insurance company to show that the liability for payment of interest on the awarded amount was excluded by the contract of insurance that was entered into between the owner of the offending vehicle and the insurance company. ( 10 ) WE are, therefore, of the view that if such liability was not excluded by specific term of contract of insurance the insurance company would certainly be liable for payment of interest which liability has been fastened by the statutory provision of sub-section (3) of section 4-A of the workmen's Compensation Act, 1923 upon the insurer of the vehicle. The application is thus dismissed. Orders accordingly.