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2011 DIGILAW 44 (GAU)

National Insurance Co. Ltd. v. Lakhindra Das

2011-01-18

H.N.SARMA

body2011
JUDGMENT H.N. Sarma, J. 1. This appeal arises out of the judgment and award dated 16.9.2003 passed by the Commissioner, Workmen's Compensation, Nagaon in W.C. Case No. 89/2000 thereby awarding compensation to the extent of Rs. 59,118/- with interest at the rate of 12% per annum from the date of filing of the application until payment. 2. Heard Mr. A. Ahmed, Learned Counsel appearing for the Appellant and Mr. M. Choudhury, Learned Counsel appearing for the Respondent No. 1/claimant. None appears for the Respondent No. 2, the owner of the vehicle. 3. The claimant/respondent was employed as driver under the Respondent No. 1. While the claimant was proceeding from Lanka to Mujaffarpur driving the vehicle No. M.L.-05 (A)/0676 (truck), he met with an accident at Sahabganj in the district of West Bengal. The accident occurred due to collision between the truck driven by the claimant as well as the vehicle coming from the opposite side. As a result of the accident, the claimant sustained injuries on his face and chest for which he was properly treated. His final treatment was undergone at Nagaon in the State of Assam. It is the case of the claimant that as a result of the injuries' he was out of employment as he was unfit to continue with the driving job. Accordingly, he filed a claim case under the Workmen's Compensation Act, 1923 before the Court of Workmen's Commissioner, Nagaon which was registered as W.C. Case No. 89/2000. In his claim petition the claimant asserted that he was 35 years of age and at the time of the accident he was drawing monthly wages of Rs. 2,000/- and additional allowance of Rs. 100/- and the vehicle was insured with the Appellant Insurance Company. Upon receipt of the summon the Respondent No. 2 the owner of the vehicle as well as the Insurance Company appeared and submitted their written statement. The owner/respondent No. 2 admitted that the claimant was engaged as a driver but on temporary basis and the accident occurred due to the negligent act of the driver. The owner further pleaded that if any compensation is awarded that should be indemnified by the Insurance Company with which the vehicle is insured. The Appellant Insurance Company denied all the allegations raised in the claim petition by the claimant. 4. On the basis of the pleadings the following issues were framed: 1. The owner further pleaded that if any compensation is awarded that should be indemnified by the Insurance Company with which the vehicle is insured. The Appellant Insurance Company denied all the allegations raised in the claim petition by the claimant. 4. On the basis of the pleadings the following issues were framed: 1. Whether there is cause of action for the claim? 2. Whether the claimant is a workman as defined in Section 2(1)(n) of the W.C. Act? 3. Whether the claimant sustained injuries in course of and arising out of his employment under the O.P. No. 1 in relation to vehicle No. M.L.-05-A/0676? 4. Whether the claimant is entitled for compensation for loss of his earning capacity and if affirmative who is liable to pay? 5. At the time of hearing the claimant examined himself and one doctor Sadullah who treated the claimant. The claimant proved as many as eight documents including the medical documents such as X-ray report, prescriptions, disablement certificate and certified copy of the F.I.R. and his driving license. Neither the owner nor the Insurance Company examined any witness but the Insurance Company cross-examined the claimant witnesses. The Commissioner upon perusal of the materials available on record including the statements of the witnesses awarded a sum of Rs. 59,118/- accepting the wages of the claimant to be Rs. 2,000/- per month and his age to be thirty-five years. Since/the vehicle was duly insured with the Insurance Company, it was directed that the Appellant should indemnify the compensation. The Commissioner further contends that the claimant would be entitled to simple interest at the rate of 12% p.a. on the awarded sum w.e.f. from the date of filing of the claim petition till payment. 6. Challenging the aforesaid judgment and award dated 16th September, 2003 the present appeal was filed. The appeal was admitted to be heard and following substantial questions of law were framed: (i) whether the injury sustained by the Respondent/workman amount to permanent partial disablement as defined under Section 2(g) of the Act, so as to award compensation under the provisions of Section 4(1)(c) of the Act and, if not whether the workman is entitled to any compensation under Section 4(1)(d) of the Act? and (ii) Whether the interest under Section 4(a)(3) of the Act can be awarded from the date of the accident or from the date of filing of the claim application. 7. and (ii) Whether the interest under Section 4(a)(3) of the Act can be awarded from the date of the accident or from the date of filing of the claim application. 7. In support of the appeal, Mr. Ahmed with relevance to substantial question No. 1 do not justify awarding compensation to the claimant, inasmuch as, the injuries sustained by the claimant are not of the nature of permanent injuries. It is submitted that during the course of accident the eight ribs of the Petitioner were broken and C.W. 2 the doctor who treated the Petitioner and issued the Ext. 6, the disability certificate. In his deposition before the Court has specifically stated in cross-examination that such fracture of the ribs can be cured. 8. In view of the above statement, the injuries sustained by the driver cannot be said to be of permanent nature attracting Section 4(1)(c) of the Act and at best it would attract the provision of Section 4(1)(d) of the Act. 9.1 have gone through the statements of the doctor C.W. 2. The doctor in his chief examination narrating the injuries stated that due to the injury sustained, by the claimant he has lost his physical fitness to drive. The doctor prove the prescriptions issued by him to the claimant as Exts. 3, 4 and 5. The X-ray report is proved as Ext. 2 which discloses the fracture injury of the claimant. The doctor further stated that the injuries sustained by the claimant are permanent in nature. However, in cross-examination, as relied on by Mr. Ahmed, the doctor has admitted that if proper treatment is taken such injury can be cured or may not be cured. 10. Marshalling the evidence of the doctor as well as the claimant, we find that the doctor has specifically stated in chief-examination that the injuries sustained by the claimant are permanent in nature. However, the statement given in cross-examination is of general nature and the doctor has not stated that in case of treatment, the injuries sustained by the claimant is recoverable. The claim made by the claimant is under Workmen's Compensation Act which is the beneficial legislation. Driving is a strenuous job. The doctor has specifically stated that the injuries sustained by the claimant are of permanent nature. The claim made by the claimant is under Workmen's Compensation Act which is the beneficial legislation. Driving is a strenuous job. The doctor has specifically stated that the injuries sustained by the claimant are of permanent nature. Upon marshalling the evidence of the doctor, I find that the Commissioner has correctly assessed the evidence and came to a proper finding that the injuries sustained by the claimant would fall under Clause 3 (1) (c) of the Act. Accordingly, the substantial question No. 1 is answered against the Appellant. 11. As regards the other substantial question of law, it is submitted by Mr. Ahmed referring to the decision of the Apex Court rendered in National Insurance Company Ltd. v. Musabir Ahmed 2007 (2) SCC 349 : 2007 (2) T.A.C 3, that the claimant is entitled to interest only if the insurance Company refuse to indemnify the claim within a period of thirty days from the date of determination, and not from the date of filing of the application for compensation. Accordingly, the Commissioner committed obvious error in awarding the interest from the date of filing of the application i.e. 24th April, 2000. 12. Mr. Choudhury however referring to the decision of the Apex Court in Oriental Insurance Company Ltd. v. Mohd. Nasir and Anr. 2009 (6) SCC 280 : 2009 (3) T.A.C. 598, and submits that a driver of a vehicle who is statutorily liable to be paid interest in case of injury sustained by him under the Motor Vehicles Act is permissible under the law and the statute do not debar payment of such interest. 13. In Md. Nasir (supra) the Apex Court had the occasion to consider the decision of Musabir Ahmed (supra). In the aforesaid decision rendered subsequently in Md. Nasir (supra) at paragraphs 49, 50 and 51 the Apex Court has held as follows: 49. Section 4-A(3), as it appears from a plain reading, is penal in nature. It, however, does not make into consideration the chargeability of interest on various other grounds including the amount which the claimant would have earned it, the amount of compensation would have been determined as on the date of filing of the claim petition. The Workmen's Compensation Act does not prohibit grant of interest at a reasonable rate from the date of filing of the claim petition till an order is passed. The Workmen's Compensation Act does not prohibit grant of interest at a reasonable rate from the date of filing of the claim petition till an order is passed. Only when Sub-section (3) of Section 4-A would be attracted, a higher rate of interest would be payable wherefore a finding of fact as envisaged therein has to be arrived at. Only because in a given case, penalty may not be held to be leviable, by itself may not be a ground not to award reasonable interest. 50. Reliance has been placed on Musabir Ahmed wherein it was held: (SCC pp. 354-55, para 9) 99. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashzvant Singh. By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of Sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression 'from the date of accident'. The position becomes clearer on a reading of Sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression 'from the date of accident'. Unless there is an adjudication, the question of an amount falling due does not arise." As therein this aspect of the matter has not been considered, we are of the opinion that interest" will also be payable at the rate of 7-1/2% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner. 51. However, in the cases determined under the Motor Vehicles Act, interest stipulated therein shall become payable. 14. Thus, in view of the aforesaid position of law relating to payment of interest from the date of filing of the application under the Workmen's Compensation Act, the Commissioner did not commit any error, factually, or jurisdictionally in granting interest from the date of filing of the application and the Court is not precluded from granting such interest. The claimant driver was out of employment for the said period also. However, the interest for the said period i.e. from the date of filing of the application till expiry of one month of the award the same shall be at the rate of 7-1/2% and not 12% as awarded and the claimant would be entitled to interest of 7-1/2% only. 15. With the above direction, the second substantial question of law so framed also stands answered partly in favour of the Appellant. 16. The appeal stands allowed altering the rate of interest to extent of 7-1/2% from the date of filing of the application till expiry of one month from the award. 17. The permissible amount shall be allowed to be withdrawn by the claimant from the registry in terms of this judgment.