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. 113 of 2008() --------------------- APPELLANT: 2ND OPPOSITE PARTY: ---------------------------------------------------- THE NATIONAL INSURANCE CO.LTD., THRISSUR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: APPLICANT/IST OPPOSITE PARTY: ----------------------------------------------------------------------- 1. THANKAVELU, S/O.RAMASWAMI, PARAMEL HOUSE, NEAR REVATHY BUS STOP PUTHURKARA P.O., AYYANTHOLE, THRISSUR DISTRICT. 2. K.C.BABY, S/O.CHACKAPPAN, KOOTTALA HOUSE, P.O.AYYANTHOLE, THRISSUR. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 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. No. 113 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of September, 2011 JUDGMENT K.M. Joseph J., The appellant is the second opposite party/Insurer, which challenges the order of the Commissioner in which it was ordered a compensation for a sum of Rs.109331/- (rounded of figure) with 12% interest from the date of accident. 2. We heard learned counsel for the appelant and learned counsel for the respondents. 3. Two substantial questions of law were raised and pressed before us. Firstly it is contended that the Commissioner ought not have fixed the loss of earning capacity at 30%. Further it is contended that the interest ought not have granted from the date of accident. 4. Following are the disabilities noted in Ext.A1, issued by the Medical Practitioner who was examined as AW2: i. His right patella fracture has united. M.F.A. No. 113 of 2008 :2: ii. His medical tibial condyle fracture has united in 100x axis deformity. iii. He has stiffness right knee with flexion from 1800 line to 1000 iv. He has clinical and radiological evidence of Traumatic arthritis right knee due to the Intra anticular fractures. v. He has 2 cm wasting right knee with loss of one grade pumb. vi. He has evidence of instability right knee with antero- posterior instability suggesting ACL injury and he is wearing a knee brace. vii. He has pain in the right knee as squatting and climbing staircase. Though Medical Board petition was filed by the appellant, even after considering the counter affidavit the petition was rejected. 5. According to the learned counsel for the appellant there is no basis for the loss of earning capacity being arrived at 30%. Having regard to the nature of injuries and the nature of the disabilities and having heard the learned counsel appearing, we fix the loss of earning capacity at 25%. Hence the appellant becomes liable to pay Rs.91,164.15, rounded of to Rs.91,165/- 6. Secondly, learned counsel would submit that the direction to pay interest from the date of accident is unsustainable. M.F.A. No. 113 of 2008 :3: 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 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 M.F.A. No. 113 of 2008 :4: 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 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 M.F.A. No. 113 of 2008 :5: 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.” However, it is pointed out that the matter is pending in Appeal before the Supreme Court against the aforesaid judgment of M.F.A. No. 113 of 2008 :6: the Division Bench of this Court. 7. 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. 8. Accordingly the appeal is partly allowed and the order is modified. The appellant is liable to pay Rs.91,165/- (Rupees ninety one thousand one hundred sixty five only) with interest at the rate of 12% from the date of accident till the date of deposit. Any amount lying in deposit after the applicant withdraws the eligible amount can be withdrawn by the appellant. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/