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2008 DIGILAW 713 (GAU)

New India Assurance Co. Ltd. v. Bharat Singh

2008-09-18

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal by the appellant Insurance Company is against the award dated 12.3.2001 passed by the Commissioner, Workmen's Compensation, Nagaon in NWC Case No. 34/2000 awarding compensation of Rs. 3,55,824 with interest @ 12% per annum with effect from 3.2.2000 till the date of award which has been calculated at Rs. 47,087.37 and directing the Insurance Company to deposit the amount within 30 days from the date of the award. 2. The respondent No. 1 herein, as claimant, filed an application before the Commissioner, Workmen Compensation under the provisions of the Workmen Compensation Act, 1923 ('the Act') stating, inter alia, that while he was driving the motor vehicle bearing registration No. AS-01-F-7680 belonging to the respondent No. 2, as driver of the said vehicle, he met with an accident on 3.2.2000 at about 6 p.m. while proceeding from Sivasagar towards Guwahati at the National Highway No. 37 at Kaliabor as a result of which he sustained injuries arising out of the accident in course of his employment. It has further been contended that though lie was initially admitted and treated in the B.R Hospital, Nagaon from 4.2.200.0 to 9.2.2000, he was removed to Patna for better treatment and was treated there from 11.2.2000 to 20.10.2000 where his right leg below knee joint has been amputed on 4.10.2000. The respondent No. 1 claimed that he was paid monthly wage of Rs. 3,500 and was aged about 45 years at the time of the accident. The said application was registered as NWC Case No. 24/2000. Though the owner of the vehicle (respondent No. 2 herein) filed written statement, he, however, did not deny the factum of the accident, monthly wage as well as age of the claimant. He, however, contended that the vehicle was insured by the policy of insurance issued by the present appellant Insurance Company. 3. The appellant Insurance Company by filing written statement have denied the averments made by the claimant in the claim petition and put the claimant to strictest proof of the allegations made in the claim petition. 4. The claimant, in support of his claim, examined himself as witness and exhibited a number of documents including accident information report and also medical documents relating to treatment as well as amputation of his right leg. 4. The claimant, in support of his claim, examined himself as witness and exhibited a number of documents including accident information report and also medical documents relating to treatment as well as amputation of his right leg. Though the claimant's witness was cross-examined by the appellant Insurance Company, they, however, did not adduce any evidence. 5. The learned Commissioner upon appreciation of the evidences on record passed the award as aforesaid by holding that the claimant is entitled to the benefit of Sections 4 and 4A, as amended by the Workmen Compensation (Amendment) Act, 2000 (Act 46 of 2000), which came into force on 8.12.2000, by relying on a judgment of this Court in National Insurance Co. Ltd. v. Sabita Gope and Ors. 2000 (2) TAC 443 (Gau.). Hence, the present appeal by the Insurance Company. 6. By order dated 27.6.2001 the appeal has been admitted for hearing on the following substantial question of law: (1) Whether the provisions of the Amending Act of 46 of 2000 would apply to an accident prior to the commencement of the said Amendment Act 46/2000? (2) Whether the Commissioner for Workmen could have determined the loss of earning capacity due to the injury without any evidence of the doctor? 7. Heard Mr. S. Dutta, learned Counsel for the appellant. None appears for the respondents. 8. Mr. Dutta, learned Counsel for the appellant has submitted that as the Amendment Act, 46 of 2000 came into force on 8.12.2000, the provisions of the said Amendment Act cannot be applied in the instant case, accident having occurred on 3.2.2000. Mr. Dutta has further submitted that under the provisions of the Act, as stood prior to the Amended Act, 46 of 2000 came into force, the claimant is entitled to the compensation for the permanent and total disablement resulting from the injury to the extent of 60% of the monthly income of the insured workman applying the relevant factors by taking his monthly wage as Rs. 2,000, in view of Explanation-II to Sub-section (1) of Section 4 of the Act. In the instant case, monthly income of the claimant being Rs. 3,500 per month, the same is to be taken as Rs. 2,000 in view of the Explanation-II of Sub-section (1) of Section 4 of the Act and the relevant factor would be 169.44, keeping in view the age of the claimant being 45 years. In the instant case, monthly income of the claimant being Rs. 3,500 per month, the same is to be taken as Rs. 2,000 in view of the Explanation-II of Sub-section (1) of Section 4 of the Act and the relevant factor would be 169.44, keeping in view the age of the claimant being 45 years. Therefore, according to the learned counsel, the claimant would be entitled to 60% of Rs. 2,000 multiplied by 169.44, i.e., a sum of Rs. 2,03,328. It has further been submitted that the claimant would also be entitled to interest at the rate as awarded by the learned Commissioner, but the period for which the interest is payable would be from the date of the award till the date of payment and in the instant case from 12.3.2001 to the month of June 2001 when the awarded amount has been deposited by the Insurance Company before the Commissioner. The learned Counsel for the appellant, therefore, submits that the award made by the learned Commissioner requires suitable modification to that extent and the excess amount which has already been released to the claimant, may be directed to be recovered by the Insurance Company. 9. The Insurance Company in the instant appeal has not disputed the factum of accident, occurrence of such accident in course of employment of the claimant respondent No. 1, his monthly wage as well as the age. The learned Commissioner, placing reliance on the decision of this Court in Sabita Gope (supra) has held that the benefit of the Amendment Act 46 of 2000 which came into force from 8.12.2000, shall have to be given, to the claimant even though the accident took place on 3.2.2000 i.e., much prior to the date when the Amended Act came in to force. The issue relating to the applicability of the Amendment Act 46 of 2000 is no logger res Integra. The Apex Court in Kerala State Electricity Board v. Valsala K, (1999) 8 SCC 254 has held that the provisions of Amendment Act, 30 of 1995, which came into effect from 15.9.1995 and by which certain provisions of the Workmen Compensation Act, 1923 were amended would apply in case of accident which occurred on or after the date of commencement of such Amendment Act. The same principle shall equally apply in relation to the Amendment Act 46 of 2000. The same principle shall equally apply in relation to the Amendment Act 46 of 2000. Therefore, the provisions of the said Amended Act are not applicable in the present case, the accident having been occurred on 3.2.2000. The learned Commissioner has, therefore, committed error of law in applying the provisions of the Amended Act 46 of 2000 in the instant case. 10. It also appears from the decision given in Issue No. 4, relating to the quantum of compensation to which the claimant is entitled to, that the learned Commissioner has taken the monthly income of the claimant as Rs. 3500 for the purpose of calculating the amount of compensation and has taken to Rs. 2,100 for the purpose of ascertaining the compensation payable by taking 60% of the wage, i.e., Rs. 3,500, though Explanation-II to Sub-section (1) of Section 4 of the Act, as it stood prior to the Amendment Act 46 of 2000, provides that where monthly income of workman exceeds Rs. 2,000, the monthly wage for the purpose of clauses (a) and (b) shall be deemed to be Rs. 2,000 only. The claimant is, therefore, entitled 60% of Rs. 2,000, which is to be multiplied by the relevant factor, in the instant case by 169.44. The workman/claimant thus would be entitled to Rs. 2,03,328 as compensation (60% of Rs. 2,000 = Rs. 12,00 × 169.44). He is also entitled to interest at the rate at which the Commissioner has awarded interest but from 12.3.2001 (date of award) till June 2001 (when the Insurance Company has deposited the entire awarded amount before the Commissioner, Workmen Compensation). 11. In view of above, the award passed by the learned Commissioner stands modified to the extent that the claimant-respondent No. 1 shall be entitled to Rs. 2,03,328 as compensation for the injuries suffered by him together with interest @ 12% per annum from the date of award dated 12.3.2001 till the date of deposit of such amount by the Insurance Company before the learned Commissioner. 12. Since the entire amount of Rs. 3,55,624 which has been deposited by the Insurance Company before the Commissioner, has already been disbursed to the claimant, the Insurance Company shall be at liberty to initiate appropriate proceedings for recovery of the excess amount' paid to the workman/claimant-respondent No. 1. 13. The appeal accordingly stands allowed to the extent indicated above with no order as to costs. 3,55,624 which has been deposited by the Insurance Company before the Commissioner, has already been disbursed to the claimant, the Insurance Company shall be at liberty to initiate appropriate proceedings for recovery of the excess amount' paid to the workman/claimant-respondent No. 1. 13. The appeal accordingly stands allowed to the extent indicated above with no order as to costs. 14. The Registry is directed to send down the records. Appeal allowed.