IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 MFA. (W.C.C.)No. 25 of 2007() ----------------------------------------- WCC.367/2001 of W.C.C.,KOZHIKODE .................... APPELLANT/2ND OPPOSITE PARTY: ---------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS MANAGER, KOCHI REGIONAL OFFICE, T.P. CELL, M.G. ROAD, ERNAKULAM. BY ADV. SMT.RAJI T.BHASKAR RESPONDENTS/APPLICANTS 1 TO 4 AND 1ST OPPOSITE PARTY RESPECTIVELY: --------------------------------------------------------------------------------------------------------------------- 1. K. SAVITHRI, W/O. LATE GOPALAN, CHEMBOLI HOUSE, P.O. THALAKULATHUR, KOZHIKKODE TALUK. 2. JISHA, D/O. LATE GOPALAN, -DO-. 3. JASNA (MINOR), D/O. LATE GOPALAN, -DO-. 4. JASY (MINOR), D/O. LATE GOPALAN, -DO-. 5. K. SIVANANDAN M.K., MANATTUKUNIYIL HOUSE, P.O. CHEEKILODE, KOZHIKKODE. R1 TO R4 BY ADV. MR.JACOB ABRAHAM. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2009, ALONG WITH MFA NO.179 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA. (W.C.C.)No. 25 of 2007 ORDER ON I.A. NOS.487/2007 & 841/2007 IN MFA (WCC) NO.25/2007 DISMISSED 12/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN, J. ........................................... M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 ............................................. Dated this the 12th day of October, 2009 J U D G M E N T MFA.No.25/2007 is filed by the insurance company against the award passed by the Workmen's Compensation Commissioner, Kozhikode in W.C.No.367/2001. One Gopalan sustained injuries while he was loading wooden logs in a lorry. One of the logs fell on him and thereafter he was continuously bed ridden and undergone treatment and finally succumbed to the injuries. The Workmen's Compensation Commissioner considered the cause of death as the injury sustained and therefore, applying Section 4(1) (a) of the Workmen's Compensation Act, calculated the compensation. The Workmen's Compensation Commissioner also awarded 12% interest and it was to take effect from the date of the accident namely 18.12.1994. The insurance company aggrieved by the said decision had filed these appeals wherein the questions of law really deserving consideration are: : 2 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 (1) whether the Commissioner was right in granting interest at 12% per annum where the accident had occurred on 18.12.1994; and (2) whether the Commissioner was right in directing payment of interest from the date of the accident in spite of the fact that the petition was filed only on 24.12.2001. 2. The other questions of law raised in the Memorandum of Appeal are more on the question of facts about which I am not dealing with. The legal representatives of the deceased also had moved an appeal and the question of law formulated is whether the Workmen's Compensation Commissioner was justified in awarding the compensation under Section 4(a) of the Workmen's Compensation Act instead of Section 4(b) of the Act. 3. Counsel for the respondent was not available to be heard. Let me first consider about the interest. Admittedly, the accident took place on 18.12.1994 prior to the amendment of the Workmen's Compensation Act. A : 3 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 Division Bench of this Court considered the question and held that enhancement of the amount of compensation and also the rate of interest brought in by way of amendment to Section 4 and Section 4(a) will be applicable only in respect of claims which happened on or after 15.9.1995. The Division Bench of this Court held that it will not have any retrospective operation. Since the accident in this case had taken place on 18.12.1994 prior to the coming into force of the Amendment Act of 1995, it has to be held that the Workmen's Compensation Commissioner was entitled to award 6% which the statute prescribed at that point of time. So the said finding of the Workmen's Compensation Commissioner is modified. 4. The next point that arises for determination is the date of commencement of granting of the interest. It is held in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222) that ordinarily interest has to be awarded from the date of the accident and not on a subsequent date. But it has to be remembered that the legal representatives of the : 4 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 deceased waited for 7 1/2 years to file a claim petition for getting compensation. It may not be just and proper for any court to award interest applying the principle that it has to be done with effect from the date of accident. Further, even the delay was condoned without notice to the insurance company thereby denying them of an opportunity to dispute the same. 5. Since the claimants themselves are responsible for the long delay in filing the application, I think it is a just and proper case where interest has to be awarded only from the date of application namely 24.12.2001. So, this point is also answered in favour of the insurance company. 6. Point No.3: This point deals with the question whether the Workmen's Compensation Commissioner was justified in passing an order under Section 4 (a) of the Workmen's Compensation Act or whether he was bound to do it under Section 4 (b). At the outset it has to be stated that the claimants only attempted to file the claim petition after : 5 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 the death. The Workmen's Compensation Commissioner on a factual analysis held that the deceased died due to the injuries sustained by him in the accident on 18.12.1994. The materials available also would reveal that ever from the date of the accident Gopalan was totally laid up and he was unable to move and did suffer from paralysis and so it was on the factual foundation that the said Gopalan died on account of the injury sustained in the accident the Workmen's Compensation Commissioner arrived at a decision regarding the same and applied Section 4(a) of the Workmen's Compensation Act for calculating the compensation. One cannot find fault with the Workmen's Compensation Commissioner for doing the same and therefore the said contention of the applicants does not merit consideration. It is answered against that. 7. In the result MFAs are disposed of as follows: MFA.No.179/2008 is dismissed and MFA No.25/2007 is partly allowed and it is made clear that the claimants are only entitled to interest at the rate of 6% on the amount : 6 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008 awarded and that too only from the date of filing of the petition namely 24.12.2001. The award is modified accordingly and appeals are disposed of. M.N.KRISHNAN, JUDGE cl : 7 : M.F.A. (WCC)NO.25 OF 2007 & M.F.A.NO.179 OF 2008