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2019 DIGILAW 1014 (ALL)

Rekha v. Kasim Abbas

2019-04-19

K.J.THAKER

body2019
JUDGMENT : Kaushal Jayendra Thaker, J. 1. Heard Sri Abhinav Kumar Pandey holding brief of Sri Ashok Kumar Srivastava, learned counsel for appellant and Sri Amresh Sinha, learned counsel for respondent. None appears for owner that they deemed to be served. 2. This appeal under Section 30 of Employees Compensation Act, 1923 (hereinafter referred to as "Act, 1923") has come up against the judgment and order dated 4.2.2019 passed by Employee Compensation Commissioner/Deputy Labour Commissioner, Mirzapur Region Pipari, Sonebhadra in Case No. EC 31/2014, awarding a sum of Rs. 7,26,893/-on account of death of Deenanath Kol, who was working as driver on the truck. 3. The facts are not necessary as the only dispute is whether the Tribunal was right in ordering conditional grant of interest. The deceased being in employment of respondent no. 1, the vehicle being insured and the death occurring out of the employment injuries is not in dispute and, therefore, the factual data is not narrated except the fact that deceased died on 6.7.2014 out of employment injuries, and therefore the monies were due on 6.8.2014. However, no amount was paid to the heirs of the deceased and grounds which were not to be taken were agitated and the matter was prolonged by the respondent. Despite the fact that the owner accepted that the deceased was employed by it as a driver on the truck which met with accident and the driver died. The respondent did not examined any person to bring home the defences with the insurance company had raised. 4. This appeal according to counsel for appellant suffers from vice of not granting interest from the date of the accrual of interest. The question relates to grant of interest on the awarded amount and further from which date it is to be awarded to the claimant. According to the counsel for appellant, it is submitted that as per the provisions of Section 4A of the Employees Compensation Act, the interest has to be from the date when the compensation becomes due. According to counsel for appellant compensation would be payable from the date of accident. As against this, learned counsel for Insurance Company states that insurance company had disputed the employment of the deceased and, therefore, Commissioner cannot be said to have committed any mistake in not granting the interest from the date of the accident. 5. According to counsel for appellant compensation would be payable from the date of accident. As against this, learned counsel for Insurance Company states that insurance company had disputed the employment of the deceased and, therefore, Commissioner cannot be said to have committed any mistake in not granting the interest from the date of the accident. 5. The conditional grant of interest that if the insurance company did not deposit the amount within a month , the amount shall carry 12% rate of interest. Tribunal has not given any cogent reasons as to why it has adopted this practice which is against the provisions of the Act and the settle legal principles enunciated. The Statute enjoins upon the Commissioner to pass order in conformity with Section the words used in the section wherein it has held in Section 4A of Employees Compensation Act that compensation has to be paid and due. In Section 3A of Employees Compensation Act it has been mentioned that interest at 12% has to be awarded. 6. The amount would fall due not on the date of decision of Commissioner is the submission of counsel appearing for the appellant. He has relied on the decision of Apex Court in Civil Appeal No. 7470 of 2009 (North East Karnataka Road Transport Corporation Versus Smt. Sujatha) decided on 2.11.2018, the decision from paragraph 18 to 34 relevant for our purpose is reproduced herein below and the operative part of the judgment reads as under : " ....18. This takes us to examine the next question which was wrongly decided by the Commissioner and the High Court also did not notice the error committed by the Commissioner. 19. The question relates to grant of interest on the awarded amount and further, from which date, it is to be awarded to the claimant (respondent). 20. The grant of interest on the awarded sum is governed by Section 4A of the Act. The question as to when does the payment of compensation under the Act "becomes due" and consequently what is the point of time from which interest on such amount is payable as provided under Section 4A (3) of the Act remains no more res integra and is settled by the two decisions of this Court. 21. As early as in 1975, a four Judge Bench of this Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. 21. As early as in 1975, a four Judge Bench of this Court in Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289 : AIR 1976SC 222 speaking through Singhal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman in the accident which arose out of and in the course of employment. It was accordingly held that it is the date of the accident and not the date of adjudication of the claim, which is material. 22. Another question analogues to the main question arose before the Three Judge Bench of this Court in the case of Kerala State Electricity Board & Anr. Vs. Valsala K. & Anr. (1999) 8 SCC 254 : AIR 1999 SC 3502 as to whether increased amount of compensation and enhanced rate of interest brought on statute by amending Act 30/1995 with effect from 15.09.1995 would also apply to cases in which the accident took place before 15.09.1995. Their lordships, placing reliance on the law laid down in Pratap Narain's case (supra) held that since the relevant date for determination of the rate of compensation is the date of accident and not the date of adjudication of the claim by the Commissioner and hence if the accident has taken place prior to 15.09.1995, the rate applicable on the date of accident would govern the subject. 23. After these two decisions, this Court in two cases (both by the Two Judge Bench) viz. National Insurance Company Ltd vs. Mubasir Ahmed & Anr. (2007) 2 SCC 349 and Oriental Insurance Company Ltd. vs. Mohmad Nasir & Anr. (2009) 6 SCC 280 without noticing the law laid down in Pratap Narain and Valsala cases (supra) took a contrary view and held that 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. 24. This conflict of view in the decisions on the question was noticed by this Court (Two Judge Bench) in Oriental Insurance Company Ltd vs. Siby George and others (2012) 12 SCC 540 . 24. This conflict of view in the decisions on the question was noticed by this Court (Two Judge Bench) in Oriental Insurance Company Ltd vs. Siby George and others (2012) 12 SCC 540 . Justice Aftab Alam speaking for the Bench referred to aforementioned decisions and explaining the ratio of each decision held that since the two later decisions rendered in the cases of Mubasir and Mohmad Nasir (supra) which took contrary view without noticing the earlier two decisions of this Court rendered in Pratap Narain and Valsala cases (supra) by the larger Benches (combination of four and three Judges respectively) and hence later decisions rendered in Mubasir and Mohmad Nasir cases (supra) cannot be held to have laid down the correct principles of law on the question and nor can, therefore, be treated as binding precedent on the question. 25. In other words, the law laid down in Pratap Narain and Valsala cases (supra) was held to hold the field through out as laying down the correct principle of law on the subject. The Two Judge Bench in Oriental Insurance Company Ltd vs. Siby George and others (supra) accordingly followed the principle of law laid down in Pratap Narain and Valsala cases (supra) and decided the case instead of following the law laid down in Mubasir and Mohmad Nasir cases (supra) which was held per incuriam. 26. Now coming to the facts of this case, we find that the Commissioner awarded the interest to the respondents at the rate of 12% per annum on the awarded sum but it was awarded from the expiry of 45 days from the date of order and that too, if the appellant failed to deposit the awarded sum within 45 days. 27. In other words, if the appellant had deposited the awarded sum within 45 days from the date of the order then the respondent was not entitled to claim any interest on the awarded sum, but if the appellant had failed to deposit the awarded amount within 45 days, then the respondent was entitled to claim interest at the rate of 12% per annum from the date of the order. 28. In our opinion, the aforementioned direction of the Commissioner in awarding the interest on the awarded sum is contrary to law laid down by this Court in Pratap Narain's case (supra) and hence not legally sustainable. 29. 28. In our opinion, the aforementioned direction of the Commissioner in awarding the interest on the awarded sum is contrary to law laid down by this Court in Pratap Narain's case (supra) and hence not legally sustainable. 29. In the light of the forgoing discussion, even though the respondent did not challenge this direction by filing any appeal in the High Court nor challenged it by filing any appeal in this Court too, yet the question being a pure question of law, this Court with a view to do substantial justice to the respondent consider it just and proper to modify the order of the Commissioner in respondent's favour so as to make the same in conformity with the law laid down by this Court in the above referred two decisions (supra). 30. Accordingly and in view of the foregoing discussion, the order of the Commissioner dated 23.04.2002 is modified in favour of the respondent to the extent that the awarded sum of Rs. 3,79,120/shall carry interest at the rate of 12% per annum from the date of accident i.e. 06.04.1999. 31. The Commissioner is accordingly directed to work out the total amount payable by the appellant to the respondent in terms of the order passed by this Court. 32. Since no one appeared for the appellant as well as respondent in this case, the Registry shall send a copy of this order to the Commissioner, the appellant and the respondent respectively within one week. 33. The Commissioner, on receipt of the order, will issue notice to the parties and calculate the total amount to enable the appellant to deposit the same within one month for being paid to the respondent after due verification. 34. The appeal stands accordingly disposed of with aforementioned directions and modifications in the order of the Commissioner dated 23.04.2002 passed in case No. KAB/KNP/7/985/99." 7. While going through the judgment, it is nowhere mentioned that there was any such objection raised that the deceased was not an employee. Once the employer had accepted this fact, the amount became payable from 6.7.2014 and within a month thereafter. Having not been paid the said amount, the amount would accrue from 6.8.2014 hence depriving the appellant of interest for these five years is bad and cannot be sustained. 8. Appeal is allowed. The respondent insurance company shall calculate the interest from 6.8.2014 till the amount is deposited. Having not been paid the said amount, the amount would accrue from 6.8.2014 hence depriving the appellant of interest for these five years is bad and cannot be sustained. 8. Appeal is allowed. The respondent insurance company shall calculate the interest from 6.8.2014 till the amount is deposited. The amount be deposited within 12 weeks from today. The question of law is answered in favour of appellant. The Court is thankful to learned Advocates for respective parties to see that the justice is done to the widow as expeditiously as possible.