IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 MFA.No. 82 of 2008() -------------------- WCC.27/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER),KOTTAYAM .................... APPELLANT(S): OPPOSITE PARTY. ----------------------------- THE MANAGER, SEVENMALLAY ESTATE, NOW KNOWN AS LEKSHMI TEA ESTATE, M/S. TATA TEA LIMITED, MUNNAR, (NOW OWNED BY KANNAN DEVAN HILLS PLANTATIONS COMPANY PRIVATE LIMITED). BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENT(S): APPLICANT. ------------------------- GANESAN, P.F.NO.5337, OLD MUNNAR DIVISION, SEVENMALLAY ESTATE, MUNNAR P.O. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.82 of 2008 ----------------------------------------------- Dated 18th August, 2011. J U D G M E N T K.M.Joseph, J. The appellant is the opposite party/employer in a proceedings under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded a sum of Rs.37,418/-. The Commissioner has taken the wages at Rs.2,062/-. The loss of earning capacity was fixed at 15% in respect of the alleged injury. 2. We notice that two issues were raised before the Commissioner and they are the income, age and further the question of quantum of compensation. There is no dispute about the employment or about the wages, and the accident also is admitted. In fact, the Chief Medical Officer has assessed the disability at 6% and Rs.14,971.37 towards compensation was also paid. We extract the finding on issue no.2 : “Quantum of compensation payable. It is proved by the Medical Certificate from the District Medical Board, Idukki that the applicant has 15% 9fifteen) permanent disability due to the injuries and so I fix the loss of earning capacity as 15%. The amount of compensation payable in this case is MFA 82/2008 2 determined as follows : Monthly wages : Rs.2062/- Age : 33 years Age factor : 201.66 Amount of compensation : - Rs.2062 x 60 x 201.66 x 15 ------------------------------------------- = 37,418/-” 100 100 3. We heard learned counsel for the appellant. 4. Learned counsel for the appellant would submit that even the applicant was not examined. There is only preliminary examination of the applicant where the appellant did not get opportunity to cross examine. He would point out that though there is reference to a medical certificate, it is not marked. 5. We see that no witness has been examined. It is not known whether the Medical Board certificate has been marked on consent. It is in fact not seen marked as such in the order. It is only referred as such. MFA 82/2008 3 6. The appellant raised another contention relating to payment of interest as according to him, the injury is non- schedule injury. 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 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 MFA 82/2008 4 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. 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 case 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 MFA 82/2008 5 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.” 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. 7. The same view was taken by another Division MFA 82/2008 6 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. There is no appearance for the respondent, even though notice was served. We would think that the matter has to be re-done. Hence, we set aside the order and remit the matter back to the Commissioner, who will consider the matter. Notice will be issued by the Commissioner afresh to the parties. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.