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2015 DIGILAW 230 (GAU)

United India Insurance Company Ltd. v. Idrish Ali

2015-02-25

NISHITENDU CHAUDHURY

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JUDGMENT Nishitendu Chaudhury, J. 1. This appeal under Section 30 of the Workmen's Compensation Act, 1923 (now designated as Employees Compensation Act) has been preferred by the Insurance Company challenging the judgment and award dated 28.02.2003 passed by the Workmen's Compensation Commissioner (for short 'W.C. Commissioner'), Nagaon, in NWC Case No. 100 of 2001. By this judgments and award the W.C. Commissioner has directed the Insurance Company to make payment of Rs. 1,53,770.40 along with interest @ 12% from the date of accident until deposition of the same within 2 (two) months from the receipt of the award. One Idrish Ali claiming to be driver of a 709 Bus with registration No. AS-02-9600 lodged claim petition before the W.C. Commissioner at Nagaon stating that while driving the aforesaid vehicle on 08.02.2001 he met with accident at Sarupathar under Jamunamukh police station. An accident case was accordingly registered with the aforesaid police station pursuant to accident information report. He stated that thereafter he was taken to B.P. Civil Hospital at Nagaon and subsequently, he was treated by one Dr. Praneswar Das. X-ray photograph was taken for his chest and right hand and it was found that his left eighth rib and right lunate bone are fractured along with other simple injuries all over his body but for which he was terminated from service by his employer, the O.P. No. 1 (Mrinmoy Goswami) of the claim petition. He was 27 years of age as on the date of accident and was getting salary of Rs. 4,000/- per month inclusive of all allowances. But for the injuries sustained by him, he became permanently incapacitated and has been rendered jobless. Because of the injuries referred to above he is not in a position to work as driver of any commercial vehicle anymore. With these averments of facts claimant demanded that he be paid compensation to the tune of Rs. 3,00,000/-. The vehicle was stated to be covered by insurance of United India Insurance Company vide Policy No. 00973 and insurance company was impleaded as Opposite party No. 2 in the proceeding. 2. On being summoned both the opposite parties appeared. While Opposite Party No. 1 admitted that claimant was a driver but he disputed his quantum of income. According to him, the claimant was being paid Rs. 2,500/- per month inclusive of all allowances. 2. On being summoned both the opposite parties appeared. While Opposite Party No. 1 admitted that claimant was a driver but he disputed his quantum of income. According to him, the claimant was being paid Rs. 2,500/- per month inclusive of all allowances. The opposite party No. 2, on the other hand, denied all the averments made in the claim petition including injuries on the person of the claimant in the aforesaid motor vehicle accident. On the basis of such rival contention of the parties, the W.C. Commissioner framed as many as three issues out of which issue No. 3 is the relevant one. The issues are quoted below: "1) Whether there is any cause of action for preferring this claim, if found affirmative, whether the petition in its present form is maintainable? 2) Whether the petitioner is a 'workman' as defined in the W.C. Act, 1923? 3) Whether the petitioner sustained injuries in the Course of and arising out of his employment under the Opposite Party No. 1 relating to the vehicle No. 01/4999 and if found affirmative, whether he is entitled for compensation and to what extent and by whom it is payable?" 3. Claimant examined himself as P.W. 1 while Dr. Praneswar Das was examined as P.W.2 who proved Exhibit-4 certificate given by him. Clamant exhibited accident information report as Exhibit-1, advice slip as Exhibit-2 and X-ray report as Exhibit-3. Upon perusal of all these documents, the W.C. Commissioner arrived at the finding that workman was driving salary @ Rs. 3,000/- per month inclusive of allowances and on the basis of this, it was further held that the workman lost his earning capacity to the extent of 40% owing to 20% physical disability arising from the accident referred to above. With these ingredients, he calculated the compensation as follows: 40% Rs. 1800 x 213.57 (factor) = Rs. 1,53,770/- The W.C. Commissioner further held that the amount shall carry interest @ 12% per annum from the date of accident till deposition within 2 (two) months from the receipt of this award and payment has to be made by the Opposite Party No. 2, United Insurance Company Ltd. 4. I have heard Mr. V.K. Baruah, learned counsel for the appellant. None appears for the respondents. 5. I have heard Mr. V.K. Baruah, learned counsel for the appellant. None appears for the respondents. 5. While admitting this appeal on 05.09.2003 this Court did not frame any substantial question of law as required under Section30 of the Workmen's Compensation Act, 1923. This Court, therefore, after hearing the learned counsel for the appellant and after perusal of the records frames the following substantial question of law: "Whether the learned tribunal committed error in allowing 12% interest on the awarded amount without taking note of Section 4A of the Workmen's Compensation Act, 1923?" 6. The findings of fact arrived at by the learned W.C. Commissioner is that the claimant was workman under the opposite party No. 1 as a driver of vehicle, registration No. AS-02-9600 which is 709 Bus. The employer, opposite party No. 1, by filing the written statement has specifically admitted such employer employee relationship. The finding, therefore, that claimant was a workman under Opposite Party No. 1 is based on admission of the employer himself and so there is nothing to interfere with this finding. Coming to the quantum of income of the employee/claimant, the claim made by workman is that he was being paid Rs. 4,000/- per month inclusive of all allowances. The employer, on the other hand, pleads that he used to pay Rs. 2,000/- per month to the workman as salary inclusive of all allowances. The workman has failed to lead any evidence specifically in support of his quantum of income. However, the learned W.C. Commissioner has presumed the same to be Rs. 3,000/- per month inclusive of all allowances by taking the evidence on record by pre pondarence of probability and application of the rule of thumb. In such cases it cannot be said to be unacceptable in view of the fact that proceeding before the W.C. Commissioner is a summery proceeding and provision of Evidence Act dost not strictly apply to such a proceeding. The decision of W.C. Commissioner, therefore, holding that the workman was drawing monthly salary of Rs. 3,000/- per month inclusive of all allowances is accepted. Once age and quantum of income is accepted in that event there is no scope to interfere with the quantum of compensation awarded by the W.C. Commissioner. The decision of W.C. Commissioner, therefore, holding that the workman was drawing monthly salary of Rs. 3,000/- per month inclusive of all allowances is accepted. Once age and quantum of income is accepted in that event there is no scope to interfere with the quantum of compensation awarded by the W.C. Commissioner. But the decision of the W.C. Commissioner awarding interest @ 12% per annum from the date of accident does not appear to be in conformity with the provision of Section 4A of the Workmen's Compensation Act, 1923. This provision shows that compensation under Section 4 has to be paid as soon as it falls due. It falls due on the date of adjudication by the WC Commissioner. Now Clause (3) of this Section further provides in case employer does not make the payment within one month from the date it fell due, the Commissioner shall direct that the employer shall, in addition to the amount of arrears, pay simple interest thereon @ 12% per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette. The liability of the employer, therefore, to pay simple interest @ 12% per annum arises only when the payment is not made within one month from its date of falling due. As stated above, date of adjudication is the relevant date when compensation falls due. In that event imposing of 12% interest would be in conformity with Section 4A(3) of the Workmen's Compensation Act, 1923 only after expiry of one month from the date of adjudication. But here in this case W.C. Commissioner has assessed interest @ 12% per annum from the date of accident. Such a decision, therefore, appears to be in contravention of the provision of Section 4A(3) of the Workmen's Compensation Act, 1923. The sole substantial question of law is accordingly decided in favour of the appellant and appeal is partly allowed. 7. The insurance company shall pay interest on the awarded amount @ 7.5% per annum from the date of accident and @ 12% till the expiry of one month from the date of adjudication. 8. Till the amount is deposited with the jurisdictional W.C. Commissioner, Nagaon, appeal stands partly allowed. No order as to costs.