IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 MFA.No. 71 of 2010() -------------------- WCC.14/2006 of W.C.C.,ERNAKULAM .................... APPELLANT: ----------------- ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED,REPRESENTED BY ITS GENERAL MANAGER LEGAL,SORRENTO BUILDING NO.6,IST FLOOR,LATTICE BRIDGE ROAD, ADYAR,CHENNAI-600 020. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENTS: ---------------------- 1. AMBIKA VIJAYAN,W/O.LATE VIJAYAKUMAR, VRINDAVANAM,THONDARAMALAYIL VEEDU, KUTTOOR P.O,THIRUVALLA -689 106. 2. DIVYA V.NAIR,D/O.VIJAYAKUMAR,-DO- 3. DEEPAK V.NAIR,S/O.VIJAYAKUMAR, -DO- ADV. SRI.C.A.CHACKO FOR R1-3 SRI.BENNY VARGHESE (THETTAYIL) FOR R1-3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 71 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th September, 2011 JUDGMENT K.M. Joseph J., The appellant is the second opposite party in a proceeding under Section 22 of Workmen's Compensation Act. It challenges the order of the Commissioner directing payment of Rs.3,06,180/- with interest at the rate of 12%. 2. Two substantial questions were raised by the learned counsel for the appellant before us. Firstly, learned counsel for the appellant would submit that the Commissioner ought not have taken the income of the deceased as Rs.4,000/- per month and there is no documentary or independent evidence. Secondly, it is contended that the Commissioner ought not have granted interest from the date of accident. M.F.A. No. 71 of 2008 :2: 3. The learned counsel for the respondents supported the order of the Commissioner. 4. As far as the first question is concerned, the finding of the Commissioner is as follows: “AW1 Ambika stated that her deceased husband Vijayakumar was getting Rs.4,250/- per month. Both opposite parties disputed on the above contentions. Both parties failed to produce any evidence in favour of their contentions. As per the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971, the monthly wages of a cleaner was Rs.1,475/- as basic and Rs.3,194/- as DA, i.e., total of Rs.4,669/- as on the date of accident on 22.11.2005.” We cannot characterise a finding perverse that there was an oral evidence. It was also supported with reference to monthly wages of a cleaner under the relevant law. The accident took place on 22.11.2005. In such circumstances, we see no reason at all to interfere. M.F.A. No. 71 of 2008 :3: 5. As far as the next question is concerned, learned counsel would submit that the direction to pay interest from the date of accident is unsustainable. He would submit that only upon adjudication, the liability arises and therefore interest could be ordered only from the date of the adjudication and not from the date of the accident. Learned counsel relied on the judgments of the Supreme Court in National Insurance Co.Ltd. v. Mubasir Ahmed & Another [2007 AIR SCW 1265], Kamla Chaturvedi v. National Insurance Co. [2008(4) KLT 862 (SC)] and Palraj v. Divisional Controller, NEKRTC [2010-JT-10-94]. They are all judgments rendered by two judges bench. No doubt, they tend to support the case of the appellant. However, we notice that the question engaged the attention of the Apex Court and a bench of four judges in Pratap Narain Singh Deo v. Srinivas Sabata [(1976)1 SCC 289] held as follows : “It is wrong to contend that the compensation had not fallen due until it was 'settled' by the Commissioner under Section 19 by his impugned order dated May 6, 1969. The employer became M.F.A. No. 71 of 2008 :4: liable to pay the compensation as soon as the personal injury was caused to the workman by the accident which admittedly arose out of and in the course of employment. There was no suspension of the compensation pending settlement. It was the duty of the appellant, under Section 4A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. So in the present facts and circumstances the Commissioner was fully justified in making an order for the payment of interest and the penalty.” No doubt, it is pointed out that the said judgment related to a scheduled injury and the facts were different. Thereafter, similar question arose before this Court in National Insurance Company Ltd. v. Rekha [2007(4) KLT 386]. Therein also, the decision in National Insurance Co.Ltd. v. Mubasir Ahmed & Another [2007 AIR SCW 1265] was considered by the Division Bench and it was interalia held as follows : “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay M.F.A. No. 71 of 2008 :5: interest from the date of award only on the basis of the facts of that case. Wide powers vested in the Hon'ble Supreme Court under Art.142 of the Constitution of India are not available to the Tribunal or even to the High Courts while deciding a statutory appeal. (See the observations in Delhi Development Authority v. Skipper Construction Co.(P) Ltd. (AIR 1996 SC 2005). We are bound by statutory provisions and law declared by the Apex Court as mandated by Art.141 of the Constitution as held in Suganthi Suresh Kumar v. Jagdheesan (2002) 2 SCC 420). When there is conflict between the decisions of the Supreme Court, decision of the larger Bench will prevail (See : Mattulal v. Radhe Lal (AIR 1974 SC 1596). In view of the statutory provisions and larger Bench decision, we see no ground to interfere in that part of the order in awarding interest from the date of accident. We also note that this ground was not raised before the Commissioner or even in the appeal memorandum, but only raised as an additional ground by filing petition dated 7.6.2007 in the appeal filed in the year 1998. However, we see no ground to interfere in the impugned award and hence this appeal is dismissed.” M.F.A. No. 71 of 2008 :6: However, it is pointed out that the matter is pending in Appeal before the Supreme Court against the aforesaid judgment of the Division Bench of this Court. 6. The same view was taken by another Division Bench in an employer's appeal in Harrisons Malayalam Ltd. v. P.K.Ashraf and Others [2009(1) KHC 799 (DB)]. In the light of the said legal position, we do not find any merit in the contention of the appellant. We also notice that this is a case of death and hence we dismiss the appeal. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/