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2012 DIGILAW 689 (UTT)

New India Assurance Co. Ltd. v. Kuntesh

2012-11-08

B.S.VERMA

body2012
Judgment B.S. Verma, J. Urgency Application No.4927 of 2012 is allowed. 2. Heard Mr. M.K. Goyal, Advocate for the petitioner and Mr. Raveendra Singh Bisht, Advocate for the respondent no.1. 3. This appeal is directed against the judgment and award dated 19.3.2009 passed by Workmen’s Compensation Commissioner/Assistant Labour Commissioner in Case No. W.C.A. 22 of 2004, Smt. Kuntesh vs. Sri Deedar Singh & another, whereby the said court has awarded a sum of Rs.3,43,629/- along with interest @ 12%, i.e., Rs.1,92,432/-, in total Rs.5,36,061/- in favour of the respondent-claimant. 4. Following substantial questions are involved in this appeal:- 1) Whether after amendment made in the year 1995 in section 4A(3) of the Workmen’s Compensation Act when does the amount fell due under Workmen’s compensation Act on the death of workmen in accident during the course of his employment? 2) Whether the interest on the awarded amount for the death of a Workmen in an accident during the course of his employment is payable after the expiry of one month from the date of adjudication or from the date of application? 5. The main ground of challenge in this appeal is that the interest would fall due from the date of adjudication of the claim and not from the date of accident. Learned counsel for the appellant has contended that the learned Tribunal has wrongly calculated the interest on the amount of compensation. In support of his submission, learned counsel has placed reliance upon the judgment of the Apex Court, in the case of National Insurance Co. Ltd. vs. Mubasir Ahmed and Anr. (2007) 2 SCC 349 , wherein the Apex Court has held that the compensation becomes due on the basis of the adjudication of the claim and hence, no interest can be levied prior to the date of the passing of the order determining the amount of compensation. In paragraph 9, the Supreme Court held:- “9…..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. 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 to be the date of adjudication of the claim. This appears to be so because 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”. Unless there is an adjudication, the question of an amount falling due does not arise.” 6. Aforesaid judgment was subsequently followed in Kamla Chaturvedi vs. National Insurance Company & ors., 2009 1 Supreme Court Cases 487. 7. Learned counsel appearing for respondent no.1 drew attention of the Court towards the judgment delivered by the Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Siby George & Ors., Civil Appeal No.5669 of 2012 decided on 31.7.2012 wherein the short question for consideration was “when does the payment of compensation under the Workmen’s Compensation Act, 1923 (hereinafter the Act) become due and consequently what is the point in time from which interest would be payable on the amount of compensation as provided under section 4-A (3) of the Act.” In the case, the Apex Court also considered the judgments of National Insurance Co. Ltd. vs. Mubasir Ahmed and Anr. (2007) 2 SCC 349 and Oriental Insurance Company Limited vs. Mohd. Nasir and Anr. (2009) 6 SCC 280 , and accordingly held that both the decisions took a contrary view to the earlier view and do not express the correct view and do not make binding precedents. 8. I have heard the learned counsel for the parties and also perused the aforesaid judgments. Nasir and Anr. (2009) 6 SCC 280 , and accordingly held that both the decisions took a contrary view to the earlier view and do not express the correct view and do not make binding precedents. 8. I have heard the learned counsel for the parties and also perused the aforesaid judgments. 9. In Oriental Insurance Co. Ltd. Vs. Siby George & Ors., Civil Appeal No.5669 of 2012 decided on 31.7.2012, the Apex Court, in paragraphs 11 and 12, held:- “11. The decisions in Pratap Narain Singh Deo was by a four Judge Bench and in Valsala by a three Judge Bench of this Court. Both the decisions were, thus, fully binding on the Court in Mubasir Ahmed and Mohd. Nasir, each of which was heard by two Judges. But the earlier decisions in Pratap Narain Singh Deo and Valsala were not brought to the notice of the Court in the two later decisions in Mubasir Ahmed and Mohd. Nasir. 12. In light of the decisions in Pratap Narain Singh Deo and Valsala, it is not open to contend that the payment of compensation would fall due only after the Commissioner’s order or with reference to the date on which the claim application is made. The decisions in Mubasir Ahmed and Mohd. Nasir insofar as they took a contrary view to the earlier decisions in Pratap Narain Singh Deo and Valsala do not express the correct view and do no make binding precedents.” 10. In the light of the judgment Siby George (Supra), the relevant date for the determination of the rate of compensation is the date of accident and not the date of adjudication of the claim. 11. In view of the above proposition of law, the substantial questions are answered in negative against the appellant. Appeal is devoid of merit and is dismissed.