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2009 DIGILAW 497 (BOM)

DANIAL NANA PATHARE v. TILAKNAGAR INDUSTRIES LTD.

2009-04-13

S.B.DESHMUKH

body2009
JUDGMENT :- The respondents were put on notice by this Court by order dated 15-7-2008 for final disposal of the appeal on ground "g" which was considered to be the substantial question of law under section 30(2) of the Workmen's Compensation Act, 1923 ("the said Act"). Record was called for. Record has been received by this Court. Shri Upadhye, learned Advocate appeared for respondent No.1. Today, he made a statement that he also appears on behalf of respondent No.2. He seeks time to file vakilpatra. His statement is accepted and taken on record. Time is granted, as prayed for. 2. Heard Shri Sawji, learned Advocate for the appellant and Shri Upadhye, learned Advocate for respondents. 3. Even though, there is no formal order of admission, respondents were put on notice for final disposal of the appeal on the following ground : "(g). That, he is entitled for the amount of Rs. 85,676/- but only paid Rs. 35,698/- the calculation is not proper and as per the law. The calculation made by the respondent - 2 is incorrect and not as per law as the claim was settled on 7-11-1997 i.e. after the Amendment in the year 1995 in Workmen's Compensation Act, 1923 and as per the settled principle the calculation ought to have been made as per the amendment." 4. Today, after hearing learned counsel for the parties, I am disposing of this appeal finally with their consent. Learned counsel Shri Sawji for the appellant submits that even though the date of accident in the case on hand indisputably is 18-8-1995 the claim has been settled by the respondents on 7-11-1997. It is also not in dispute that the said Act has suffered amendment on 15-9-1995. According to learned counsel for the appellant, statutory provisions of the said Act on the date of settlement of the claim i.e. 7-11-1997 is applicable to the facts and not the date of accident. The learned trial Judge has applied the statutory provisions to the facts of the case on hand obtaining on 18-8-1995 incorrectly. He submits that the learned Judge ought to have decided the claim alleged by the appellant, in view of the amendment made enforceable from 15-9-1995. In support of his submissions, he relied upon two judgments, to which the reference would be made at the appropriate stage. 5. He submits that the learned Judge ought to have decided the claim alleged by the appellant, in view of the amendment made enforceable from 15-9-1995. In support of his submissions, he relied upon two judgments, to which the reference would be made at the appropriate stage. 5. Shri Upadhye, learned Advocate for the respondents submits that the date of accident is material, meaning thereby that the provisions of the statute concerned, enforceable on the date of accident, requires to be taken into consideration, which has been justifiably considered by the learned trial Judge and no interference in this appeal is necessary. According to him, the ground which is accepted by this Court as a substantial question of law, in fact, does not involve such a substantial question of law. He prays for dismissal of the appeal. 6. Submission of learned counsel for the appellant is the only short question of law to be considered. According to learned counsel for the appellant, the date of settlement of the claim i.e. 7-11-1997 is material and law operating in the field on 7-11-1997 ought to have been considered by the Court below. "Substantial question of law", a phrase, is not defined under the provisions of the said Act. In fact, this phrase can be traced to section 100 of the Code of Civil Procedure. Said phrase is also not defined under the provisions of the said Code, though it is referred under section 100 of the Code. The Supreme Court has considered this phrase in the matter of Santosh Hazari vs. Purushottam Tiwari, 2001 (2) MhLJ. (SC) 786 = AIR 2001 SC 965 . 7. The judgment of the Supreme Court pointed out by learned counsel Shri Upadhye, is relevant in the facts and question tried to be raised by the appellant. It is in the matter of Kerala State Electricity Board VS. Valsala K, (1999) 8 SCC 254 . The precise question was whether the amench'11ent to section 4A of the said Act was made effective from 15-9-1995 enhancing the amount of compensation and rate of interest would be attracted to the cases where the claim in respect of death or permanent disability resulting from an accident was during the course of accident took place prior to 15-9-1995. The precise question was whether the amench'11ent to section 4A of the said Act was made effective from 15-9-1995 enhancing the amount of compensation and rate of interest would be attracted to the cases where the claim in respect of death or permanent disability resulting from an accident was during the course of accident took place prior to 15-9-1995. The arguments in the case on hand, on behalf of respective counsel, are traditional arguments and were also addressed to Supreme Court in the case of Kerala State (supra). The Supreme Court has noticed conflicting judgments of the various High Courts in paragraph No.2 of the said judgment. Reference is made to the judgment of four Judges in the case of Pratap Narain Singh Deo vs. Srinivas Sabata, (1976) 1 SCC 289 , in which it was held that the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. Thus the controversial issue and/or alleged substantial question of law, which is tried to be raised by the appellant in the case on hand has been settled initially in the year 1976 by the Larger Bench of the Supreme Court, which has been subsequently approved of by another Larger Bench of the Supreme Court, in the matter of Kerala State (supra). 8. I have also given consideration to the submission of learned counsel Shri Sawji for appellant. He pointed out the judgment of the learned Single Bench of this Court in the matter of Bisumal Nagraj Ostwal vs. Kunda Ashok Shinde, 2000(II1) CLR 129. With the assistance of learned counsel for the appellant, I have noticed the date of accident in the matter of Bisumal so also other details. In my view this judgment is of no help to the appellant. Another judgment relied upon by Shri Sawji, learned counsel is in the matter of Eastern Railway vs. Jhalia Devi, 2001 (1) LV 793 [Patna High Court]. There, the date of accident was 29-3-1995. The order was passed by the learned Commissioner on 22-7-1998. There the issue of penalty and interest was under consideration. In the case on hand, learned counsel for the appellant fairly concedes that the issue of penalty and interest is not material in the case on hand. On the point of amendment, this judgment does not support the case of the appellant. 9. There the issue of penalty and interest was under consideration. In the case on hand, learned counsel for the appellant fairly concedes that the issue of penalty and interest is not material in the case on hand. On the point of amendment, this judgment does not support the case of the appellant. 9. Having considered the submissions of learned counsel for the parties and taking into account the prospectus of the judicial pronouncements cited at Bar, in my view, ground "g", quoted hereinabove, cannot be accepted to be the substantial question of law, meaning thereby, that this appeal needs to be dismissed, however, without any order as to costs. 10. The appeal stands dismissed. No order as to costs.