JUDGMENT [ENTITY], J.
1. The insurer of the lorry bearing No. A.P.16-T-3919 which met with an accident on 14-2-1997 at about 6 a.m., resulting in the death of the cleaner, who was covered by the policy of insurance taken by the owner of that lorry, filed this appeal questioning the award of compensation of Rs. 1,27,840/- by the Commissioner under the [ACT], (the Act) in a claim made by the legal representatives of the deceased cleaner of that lorry.
2. The fact that the accident arose out of and during the course of employment resulting in the death of the cleaner of the vehicle which is covered by the insurance policy issued by the appellant is not in dispute.
3. The four points raised by the learned Counsel for the appellant in this appeal are:
4. When there is proof of the wage that was actually being paid to the deceased cleaner, the Commissioner erred in taking the minimum wage payable under the [ACT] to a cleaner, as the wage of the deceased cleaner, (ii) The Commissioner was in error in fixing the relevant factor by taking the age of the deceased cleaner into consideration instead of taking the age of his mother, (iii) Since notice under [SECTION] of the Act is not given, the claim against the appellant is not maintainable, (iv) The Commissioner was in error in awarding interest from the date of the accident though no notice of the claim was given to the insurer.
5. The contention of the learned Counsel for the appellant is that the owner of the vehicle involved in an accident is under an obligation to give notice of the accident to the insurer so that the insurer will have an opportunity to get investigated the accident and its cause, and if no such notice is given the insurer would be deprived of such opportunity. It is his contention that the provisions of the [ACT] can be taken aid of in construing the provisions of the Act because both the Act and the [ACT] are legislations intended to benefit the victims of an accident or their legal heirs and so the provisions of one statute can be imported and applied to the other, when there is doubt or when there is a lacuna.
6. He relied on the following decisions in support of his contentions. [PRECEDENT], G.M. Kerala State Road Transport Corporation v. [ENTITY], 1994 ACJ 1, [PRECEDENT], and [ENTITY] v. Irfan Ahammed, 2002 ACJ 1559. The contention of the learned Counsel for the claimant is that the appellant who took only two pleas in the grounds of appeal cannot be permitted to take additional pleas during the course of arguments more so because an appeal to this Court, against the order of the Commissioner, is not a matter of right as in the [ACT], and is maintainable only on a substantial questions of law. It is his contention that the Commissioner did not commit any irregularity in taking the minimum wage fixed by the Government for a cleaner, as the wage of the deceased cleaner, and when [SECTION] of the Act mandates the age of the deceased workman, but not on the age of the claimant, being taken into consideration for fixing the relevant factor question of Commissioner taking into consideration the age of claimant mother does not arise, and if the principles of awarding compensation as applicable in Motor Vehicles Accident cases are imported to decide the claims under the Act, as contended by the learned Counsel for appellant, claimants under the Act would also be entitled to seek non pecuniary damages, etc., and when the Act does not contemplate the claimants giving notice under [SECTION] of the Act to the insurer, question of a notice being given to the appellant does not arise and thus no question of law is involved in this appeal and so the appeal is liable to be dismissed. He relied on [PRECEDENT], [PRECEDENT], , [PRECEDENT], , [PRECEDENT], [PRECEDENT], [PRECEDENT], and [PRECEDENT], .
7. It is no doubt true that appeal under the provisions of the Act is not as a matter of right, as in the case of the [ACT], and is limited only to the question of law. All the four points urged by the learned Counsel for the appellant are but questions of law. So, it cannot be said that the appeal is not maintainable. It is true that in the grounds of appeal only two grounds were taken but during the course of hearing the learned Counsel for the appellant raised two additional points. It is well known that a question of law can be raised during the course of arguments, though the same is not mentioned as a ground in the grounds of appeal. Therefore, I am unable to agree with the contention of the learned Counsel for the claimants that the appellant cannot be permitted to raise fresh points of law during the course of the hearing, and that it should confine itself to the grounds mentioned in the grounds of appeal.
Point I:
8. In [PRECEDENT] case (supra) it is held that the minimum wage payable to an employee should form the basis for finding out the wage of the victim in the accident for arriving at the compensation payable under the Act. [SECTION] of the [ACT] lays down that in respect of employments specified in the schedule the employer is bound to pay the minimum wage notified. [SECTION] to that Act relates to employment in 'public motor transport'. The accident involving the deceased cleaner is of a public transport vehicle. Therefore as per the [ACT], the employer of the deceased cleaner was bound under to give the minimum wage notified to a cleaner to the deceased cleaner. In view thereof Commissioner taking the minimum wage fixed for cleaners of lorries, as the wage of the deceased cleaner cannot be said to be irregular or erroneous.
Point No. 2:
9. This point relates to fixing of the relevant factor. As per [SECTION] of the Act in case of death, an amount equal to 50% of the monthly wages of the deceased-workman multiplied by the relevant factor or an amount of Rs. 50,000/- whichever is more has to be given. Explanation-I of [SECTION] reads:
"Relevant factor in relation to a workman means the factor specified in the second schedule of Schedule-IV against the entry in first column of that schedule specifying the number of years which are same as the completed years of the age of the workman on his last birthday immediately preceded it on which the compensation fell due.
It is no doubt true that in several cases including [PRECEDENT]. case (supra), [ENTITY] case (supra), [ENTITY] case (supra) and [ENTITY] case (supra) it is held that while arriving at the quantum of compensation payable to the legal representatives of a deceased a victim in a motor vehicle accident, the age of the claimants, if they happen to be the parents of an unmarried individual would be relevant for fixing the appropriate multiplier. According to the learned Counsel for the appellant even though [SECTION] of the [ACT] states what the multiplier should be fixed with relation to the age of the deceased victim, in [ENTITY] case (supra) the Supreme Court took the age of the mother, but not the age of the deceased as mentioned in [SECTION], of the [ACT] into consideration for fixing the compensation payable and so merely because [SECTION] of the Act states that the relevant factor has to be fixed with reference to the age of the deceased victim, it cannot be so in case the parents of the deceased workman only are the claimants, and it is their age that has to be taken into consideration for fixing the relevant factor. With respect, I am unable to agree with the said contention. In para-6 of [ENTITY] case (supra), the contentions of both the Counsel appearing for the parties were noted and after taking into consideration the law laid down in [PRECEDENT], and [PRECEDENT], the Supreme Court held that proper method of assessment of compensation is the method of capitalization of net income, choosing a multiplier appropriate to the age of the deceased or the age of the dependants whichever is lower. It should be noted that the claim in that case was not made under [SECTION] of the [ACT], but was under [SECTION] of that Act. No decision of the Supreme Court or any High Court, in which the multiplier appropriate to the age of the dependants, when they are elder to the deceased victim, was taken into consideration in an application made under [SECTION] of the [ACT], is brought to my notice. As rightly contended by (he learned Counsel for the claimants, if the. method of choosing the multiplier relevant to the age of the claimant is taken into consideration for fixing the relevant factor, taking a cue from the case law under the [ACT], as in the case of Motor Accident Cases apart from the amount payable as per [SECTION] of the Act, non pecuniary damages, etc., will have to be awarded for the claims under the Act also. Obviously with a view to obviate such exercise, the Act lays down a simple method of calculating the compensation payable to the dependants of a deceased victim in an accident that arises out of and during the course of employment. So, when [SECTION] of the Act clearly lays down that the relevant factor appropriate to the age of the deceased-workman is to be taken into consideration, the question of taking the age of a dependent who is older to the deceased workman does not arise. In view thereof I feel it unnecessary to refer to the decisions relied on by the learned Counsel for the respondents on this aspect.
10. For the above reasons I reject the contention of the learned Counsel for the appellant that the relevant factor appropriate to the age of the mother of the deceased cleaner should be taken into consideration for fixing the compensation payable to the respondents.
Point No. 3:
11. From a plain reading of [SECTION] of the Act it is clear that that Section contemplates notice only to the employer, but not to the insurer of the employer. From the fourth proviso to [SECTION], it is seen that in cases of accidents resulting in the death of an employee and when such accident occurred on the premises of the employer, or at any place where the workman, at the time of the accident, was working under the control of the employer or any person employed by him, non issuance of notice is not a bar for filing claim. In this case, the accident admittedly occurred out of and during the course of employment, when the driver of the employer was driving the lorry. Since the deceased cleaner died when he was working under the control of the driver employed by the employer, the claim can be filed even without a notice to the employer.
12. The contention of the learned Counsel for appellant that in view of [SECTION] of the Act the liability of the appellant to pay the compensation payable to the dependants of the deceased arises only if and after the insured becomes an insolvent has no force because a Full Bench of the Kerala High Court in [PRECEDENT], held that the insurer is liable to pay the compensation even in the absence of the contingency contemplate by [SECTION] of the Act. Be that as it may since contract of insurance is but a contract of indemnity, the employer of the deceased after paying the compensation determined by the Commissioner to the claimants, is legally entitled to recover the said amount from his insurer. In [PRECEDENT], it is held that since [SECTION] and [SECTION] of [ACT] are not exhaustive, equitable principles, as in England can be taken in aid and so even without suffering the actual loss, on incurring the absolute liability, the indemnified can call upon the indemnifier to place him in a position to meet the liability that may be cast on him. In this case Respondents 1 and 2 are not obliged to give notice of the accident to the employer of the deceased before making a claim against him. So the fact that the insurer was not given a notice of the accident by Respondents 1 and 2, by itself, is not and cannot be a ground for negativing their claim against the appellant.
13. The Commissioner disbelieving the evidence of first respondent as AW1 that the income of the deceased as cleaner was Rs. 1,500/- p.m. and his age was 20 years, on the basis that the minimum wages of a cleaner, fixed by the Government was Rs. 1,150/- p.m., and that the age of the deceased cleaner was 22 years as per Ex.A.3 Post-Mortem Certificate arrived at the compensation payable to respondents 1 and 2 as Rs. 1,27,841/-, which is perfectly in accordance with the provisions of the Act. So, no interference is called for in respect of the quantum of compensation payable to the Respondents 1 and 2.
Point No. 4:
14. The Commissioner awarded interest on the compensation amount arrived at from the date of accident. As per [SECTION] of the Act compensation under [SECTION] shall be paid as soon as it falls due. When the compensation falls due, in case of death of a workman, is not specifically mentioned in any of the sections of the Act. In [PRECEDENT], , the Supreme Court held that the compensation becomes payable on the date of accident, and not on the date of determination of the compensation. As per [SECTION] of the Act if the employer commits default in paying the compensation under the Act within one month from the date it falls due, Commissioner has power to direct simple interest being paid to the claimants. So, the liability to pay interest, according to [SECTION] of the Act, arises one month after the date Of accident, and not from the date of accident. Since discretion is given to the Commissioner to order payment of interest, claimants, as of right cannot claim interest on the compensation due. In the facts and circumstances of the case, it would be appropriate to direct the third respondent and consequently the appellant to pay interest at 9% p.a., from the date of claim.
15. In view of my above findings, I feel it unnecessary to refer to the other decisions cited by the learned Counsel for the parties, for deciding this appeal.
16. For the above reasons, I hold that respondents 1 and 2 are entitled to Rs. 1,27,841/- with interest @ 9 % p.a., from the 3rd respondent and the appellant jointly and severally from the date of filing of the claim, up to the date of deposit before the Commissioner. The appeal is ordered accordingly. No costs.