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2010 DIGILAW 569 (GUJ)

New India Assurance Co. Ltd. v. Viram Vela Rabari

2010-11-30

K.S.JHAVERI

body2010
JUDGMENT : K.S. Jhaveri, J. This appeal is directed against the judgment and award dated 31.12.2004 passed by the Ex-officio Commissioner for Workmen's Compensation Act, Kachhch in Workmen's Case No. 284 of 1996 whereby the said application has been allowed and the claimant has been awarded a total sum of Rs. 1,08,455/-along with interest @ 12%. The case of the appellant is that opponent No. 1 Shri Viram Vala Rabari was working as Cleaner. The opponent No. 2 had obtained Insurance Policy for his Tanker No. GJ-12-T-7431. The opponent No. 1 met with an accident with the Tanker insured by the opponent No.1 on 07.07.1989. He sustained serious injuries on different parts of the body and received permanent disability. For the said accident, opponent No.1 had filed W.C. (NF) Application No. 284 of 1996 (Old No. 432/93) before the Presiding Officer, Labour Court, Ex-Officio Workman Compensation Commissioner at Gandhidham wherein the Commissioner had awarded the aforesaid amount of compensation which is challenged in the present appeal. 2. Learned advocate appearing for the appellant Insurance Company has contended that admittedly the workman has received Non Scheduled injury and in such situation as per Section 4(1)(c)(ii) of the Act, the compensation is to be awarded on the basis of assessment made by the qualified medical practitioner. In the instant case, the Doctor has assessed 68% disability. 3. Learned advocate for the appellant invited attention of Section of 4A of the Workmen's Compensation Act which reads as under: "4A Compensation to be paid when due and penalty for default: - "(1) Compensation under Section 4 shall be paid as soon as it falls due. In the instant case, the Doctor has assessed 68% disability. 3. Learned advocate for the appellant invited attention of Section of 4A of the Workmen's Compensation Act which reads as under: "4A Compensation to be paid when due and penalty for default: - "(1) Compensation under Section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim." (3) Whereby any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of arrears, simple interest at the rate of six percent annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty percent of such amount, shall be recovered from the employer by way of penalty." 4. Though served, none appears for the respondent. 5. As a result of hearing and perusal of the documents on record and considering the submission of learned advocate for the appellant it is found that the Commissioner has erred in awarding 12% interest. As per the settled legal position, compensation can be awarded on the basis of provisions prevailing on the date of accident. Admittedly, the accident took place on 07.07.1993 and on that day, prevalent rate of interest was 6% so that at the most, Commissioner can direct the Insurance Company to deposit the amount of compensation together with 6% simple interest instead of 12%, especially, in view of the said fact and Section 4A of the Act, the rate of interest @ 12% has come into effect only from 15.09.1995 and the accident has taken place on 07.07.1993. Further, the Commissioner has erred in granting medical expenses as there is no such provision under the W.C. Act to grant the medical expenses of Rs. 9985/- to the claimant. Further, the Commissioner has erred in granting medical expenses as there is no such provision under the W.C. Act to grant the medical expenses of Rs. 9985/- to the claimant. Hence, the amount of medical expenses and interest awarded to the claimant is contrary to the statutory provisions which was prevailing on the date of the accident. In that view of the matter, since the accident is of the year 1993 i.e. prior to 15.09.1995, the interest @ 6% is allowed. The order is for compensation of medical expenses @ 12% is wrongly given. The judgment and award of the Commissioner is modified accordingly. The excess amount which has been deposited by the Insurance Company will be paid back to the Insurance Company. The appeal is allowed to the aforesaid extent. Appeal Allowed.