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 24TH AUGUST 2011 / 2ND BHADRA 1933 MFA.No. 166 of 2007() ------------------------------ WCC.7/2005 of COMMISSIONER FOR WORKMEN'S COMPENSATION, & DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, PAYYANNUR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANT: ------------------------------------------- DHANEESH M.G., S/O. GEORGE, MADAPPATTU HOUSE, PAYYAVOOR, PAISAKKARI P.O., KANNUR DISTRICT. (NO RELIEFS ARE CLAIMED AGAINST THE 1ST OPPOSITE PARTY IN THE APPLICATION AND HENCE HE IS NOT MADE A PARTY IN THIS APPEAL). BY ADV. SRI.TOJAN J. VATHIKULAM SRI.T.SAJU XAVIER THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.166 of 2007-B ----------------------------------------- Dated, this the 24th day of August, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the insurer who is the 2nd opposite party in an application filed under Section 22 of the Workmen's Compensation Act. The respondent/claimant set up the claim on the basis that he lost vision of one eye. The Commissioner awarded compensation in a sum of Rs.4,30,080/- with 12% interest from the date of accident. In arriving at the said amount, the Commissioner has taken loss of earning capacity at 80%. The percentage of disability was noted as 100% (See Ext.X2 Medical Certificate from the District Medical Board, Kannur). It is feeling aggrieved by the same, the appellant is before us. 2. We heard the learned senior counsel for the appellant and learned counsel for the respondent. Learned counsel for the appellant projected before us two substantial questions of law. In the first place, he would contend that this is a case where the workman/claimant suffered loss of vision of one eye. This is a scheduled injury. He would refer to us Entry 25 and 26 of Part II of the Schedule to the Employee's Compensation MFA 166/2007 -2- Act. They read as follows: Sl.No. Description of Injury Percentage of loss of earning capacity xx xx xx 25 Loss of one eye, without 40 complications, the other being normal. 26 Loss of vision of one eye, without complications or disfigurement of eye-ball, the other being normal. 30 3. He would also rely on the Full Bench decision in Vanajakshan v. Joseph (2003 (2) KLT 462 (F.B.) to contend that in the facts of the present case it is only illegal on the part of the Commissioner to take 80% loss of earning capacity. Next, he would contend that the Commissioner has illegally awarded interest from the date of accident. 4. As far as the first question is concerned, we see merit in the case of the appellant. Admittedly, the injury is a scheduled injury. The injury, according to the appellant can be treated as falling under Entry 25. If it comes under Entry 25, the percentage of loss of earning capacity is to be taken as 40%. In the case of a scheduled injury we are in agreement with the learned senior counsel for the appellant that the compensation is to be fixed on the basis that loss of earning capacity is what is statutorily stipulated. Accordingly, we are inclined to modify the MFA 166/2007 -3- loss of earning capacity from 80% to 40%. 5. As far as the next question is concerned, learned senior 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 benches. 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 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. MFA 166/2007 -4- So in the present facts and circumstances the Commissioner was fully justified in making an order for the payment of interest and the penalty.” It is no doubt 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 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 MFA 166/2007 -5- 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 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 and we reject the said contention. 7. Consequently, we modify the order and we hold that the appellant will be liable to pay Rs.2,15,040/- (Rupees two lakhs fifteen thousand and forty only) in place of the amount ordered by the Commissioner with interest at 12% from the date of accident till the date of deposit. Appellant will be entitled to receive back any amount deposited in excess of the amount ordered in this judgment. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS