IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 MFA. (WC ACT) No. 107 of 2009 ------------------------------------------ WCC.262/2003 of W.C.C.,KOZHIKODE .................... APPELLANT/ 2ND OPPOSITE PARTY IN THE WC CASE. ---------------------------------------------------------------------------- UNITED INDIA INSURANCE CO. LTD., MANJERI, REP. BY THE DEPUTY MANAGER, UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): APPLICANTS AND IST OPPOSITE PARTY. ------------------------------------------------------------------------------------- 1. MADHAVAN, S/O.ANDY, KALLITTANADAYIL, DAPPILTHARA HOUSE, GOVINDAPURAM P.O., KOZHIKODE DISTRICT. 2. MALU, W/O.MADHAVAN, DO. DO. 3. ANILA, W/O.LATE SANTHOSH, DO. DO. 4. ADVAITH, S/O.LATE SANTHOSH, DO. DO. 5. ABDUL NAZAR, S/O.MOHAMMED, MALIYEKKAL HOUSE, MOONIYOOR, TIRUR, MALAPPURAM DISTRICT. THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A.(WC ACT) NO. 107 OF 2009 --------------------------------------------------- Dated this the 22nd May, 2009 JUDGMENT K.M. JOSEPH, J. Three substantial questions of law are purported to be raised in this Appeal by the Insurance Company. They are as follows: “1) Whether the WC Commissioner has any authority to fix the monthly wages of a workman at the upper limit of Rs.4000/=, in the absence of any proof thereof or any material or evidence on record; and by ignoring or overlooking Explanation-II to Section 4 of the WC Act ? 2) Whether the impugned order passed by the WC Commissioner, directing the appellant to deposit the compensation together with 12% interest thereon from the date of accident is correct, in the light of the dictum laid down by the Apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed & Another reported in (2007) 2 SCC 349, and also in Kamla Chaturvedi v. National Insurance Co. reported in 2008 (4) KLT MFA (WC ACT) 107/09 2 862(SC)) ? 3) Whether there is wrong exercise of jurisdiction by the Commissioner for Workmen's Compensation, while deciding the case ? ” 2. The Application is filed by respondents 1 to 4 against the fifth respondent and the Appellant under Section 22 of the Workmen's Compensation Act. Their case is that one Santhosh was employed as a Cleaner under the fifth respondent in a lorry and on 25.1.2003 at about 3 A.M., the said Santhosh along with some loading and unloading workers were unloading hay from the fifth respondent's lorry near the bus stop. While so, a Mini Parcel lorry coming from Kozhikode side in a very high speed hit Shri Santhosh, who succumbed to the injuries. According to the claimants, the deceased had an income of Rs.4,000/= per month and laid a lumpsum claim for Rs.4,00,000/=. The first opposite party filed a Written Statement wherein, inter alia, it appears to have contended that he does not admit that the deceased was working as a Cleaner for one year and was earning an amount of Rs.4,000/= per month. The appellant filed Written MFA (WC ACT) 107/09 3 Statement admitting the Policy. The widow was examined. On the basis of the evidence, the Commissioner fixed the wages at Rs.4,000/= per month. The Commissioner took note of the fact that the employer denied the case that the deceased was earning Rs.4,000/= per month. But, he further noticed that there is no documentary proof and then he took the wages of the deceased as Rs.4,000/=. Thereafter, acting on the basis of the formula, an amount of Rs.4,19,840/= is adopted. Thereafter, noting the fact that there is an insurance cover with the appellant and also the admission in the oral argument that the appellant admitted the Policy was subsequently transferred and Ext.R1 is the copy of the insurance policy, the appellant was held liable to pay the compensation and to deposit the amount with simple interest at 12% from the date of the accident. 3. We heard Shri A.R. George, learned counsel for the appellant. Learned counsel for the appellant would point out essentially that the Commissioner has acted illegally in directing payment of interest from the date of the accident. According to him, the Commissioner could have only ordered payment of MFA (WC ACT) 107/09 4 interest after expiry of one month from the date of the adjudication. In this regard, he placed reliance on the decision of the Apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed & Another ((2007) 2 SCC 349) as also Kamla Chaturvedi v. National Insurance Co. (2008 (4) KLT 862 SC). But, he fairly points out that there are two decisions of this Court against his contention. They are National Insurance Co. Ltd. v. Rekha (2007 (4) KLT 386) and Harrisons Malayalam Ltd. v. Ashraf (2009 (1) KLT 825). In Harrisons Malayalam Ltd. v. Ashraf (2009 (1) KLT 825), a Division Bench of this Court taking note of the contention of the Insurance Company that the interest is payable only from the date of the Award, which was sought to be supported by the decision of the Apex Court in National Insurance Co. Ltd. v. Mubasir Ahmed & another ((2007) 2 SCC 349), rejected the contention as follows: “The learned counsel appearing for the appellant brought to our notice a recent decision of the Apex court in National Insurance Company Ltd. v. Mubasir Ahmed and Anr. (2007 (3) KLT MFA (WC ACT) 107/09 5 26(SC)=2008 (1) L.L.N.422), wherein it was held that interest is payable only from the date of the award. It is a decision rendered by a Bench of two Judges. The above apparent conflict between the two decisions of the Apex Court has been considered by a Division Bench of this Court in National Insurance Company Ltd. v. Rekha (2007 (4) KLT 386 = 2008 (1) L.L.N.604) and held that this Court is bound by the decision of the Constitution Bench. We are in respectful agreement with the view expressed by the Division Bench of this court in that case. So, the second contention of the appellant also cannot be accepted.” 4. Of course, learned counsel for the appellant would point out that there is a subsequent decision of the Apex Court which is not placed before us as such. But, in view of the fact that the Division Bench of this Court has taken the view that the subsequent decision of the Apex Court runs counter to the Constitution Bench and it is a Constitution Bench which is binding, we feel that it could not be said that a substantial MFA (WC ACT) 107/09 6 question of law could arise, as interpreting the law, this Court has held that despite the subsequent Judgment of the Two Judge Bench of the Apex Court, in the light of the earlier Constitution Bench, it is open to the Commissioner to award interest from the date of the accident. In view of this position, we would think that it may not be open to the appellant to contend that there is a substantial question of law, which arises for our consideration. 5. It is further contended by the learned counsel for the appellant that the Commissioner ought not have taken Rs.4,000/= per month as income. There is no evidence, he contends. Learned counsel for the appellant contends that Rs.4,000/= can be taken as the income, if the income is in excess of rs.4,000/= and in this case, there is no evidence that the income is Rs.4,000/= or in excess of Rs.4,000/=. He submits, however, that there was oral evidence of the widow to the effect that her late husband was earning Rs.4,000/= per month. An Appeal under Section 30 of the Workmen's Compensation Act will lie only if there is a substantial question of law raised. A MFA (WC ACT) 107/09 7 finding of fact can give rise to a substantial question of law, if it is without support of any evidence. Admittedly, there was oral evidence before the Commissioner. It is also to be noted that the employer did not produce any evidence as noted by the Commissioner to support his contention that the deceased Santhosh was not earning Rs.4,000/=. We do not find that this finding can therefore be said to give rise to a substantial question of law. We think that, on a consideration of the facts present, the appellant has failed to make out a case for our consideration. The Appeal fails and it is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge