IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.533 OF 1998. APPEAL NO.533 OF 1998. APPEAL NO.533 OF 1998. The Zilla Parishad, Ratnagiri ...Appellant Versus. Pravin Prakash Javadekar & Ors. ...Respondents Shri P.P.Chavan for the Appellant. Shri T.J.Mendon for the Respondent Nos.1 to 8. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 28th February, 2008. : 28th February, 2008. : 28th February, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The submissions of the learned counsel appearing for the appellants and the respondent Nos.1 to 8 were heard on the last date. Considering the fact that the appeal is of the year 1998, the same is taken up for final disposal at admission stage. A substantial question of law formulated in ground (c) of the Memorandum of Appeal arises. 2. The Claim Petition under the Workmen’s Compensation Act, 1923 (hereinafter referred to as the said Act of 1923) was filed by the 1st to 8th respondents contending that late Prakash Yashwant Javadekar was an employee of the appellant and while discharging this duty as a driver, he met with an accident and succumbed to the injuries sustained in the accident. The date of accident is 30th March, 1993 and the claim application was filed on 08th September, 1993. : 2 : 2 : 2 : 3. The substantial question of law arises in terms of ground (C) of the memorandum of appeal which reads thus: ". The learned Judge erred in law in giving the benefit of 1995 amendment to Section 4 of the Workmen’s Compensation Act, 1923 even though the accident which result in death of Shri Yashwant Javadekar occurred in the year 1993 which was prior to the 1995 amendment of Section 4 of the Workmen’s Compensation Act, 1923?" 4. The submission of the learned counsel appearing for the appellant is that since the Claim Petition was filed before coming into force of the amendment to the said Act of 1923 made by Act No.30 of 1995, the compensation ought to have been awarded in terms of the unamended Act in as much as the amending Act came into force in 1995. He placed reliance on a decision of the learned single Judge of this Court in the case of State of Maharashtra Vs. Arti w/o Ahok Kapshikar and others (2007 (6) Maharashtra Law Journal Page 108). He also placed reliance on a decision of the Apex Court in the case of Kerala State Electricity Board and Another Vs. Valsala K and Anorther [(1999) 8 Supreme Court Cases : 3 : 3 : 3 : Page 254]. Lastly, he pressed into service another decision of the Apex Court in the case of Pratap Narain Singh Deo Vs. Shrinivas Sabata and Another (AIR 1976 Supreme Court Page 222). 5. The learned counsel appearing for the respondent Nos.1 to 8 placed reliance on a decision of the Division Bench of Kerala High Court in the case of Oriental Insurance Co Ltd Vs. Ashokan [1997(1) T.A.C 835 (Kerala)]. He submitted that the said Act of 1923 has been enacted as special legislation for the benefit and welfare of the workmen. He, therefore, submitted that as the Claim Petition was pending when the amendment to the said Act of 1923 was brought into force, the benefit of the amended legislation ought to be extended to the claimants. He invited my attention to paragraph No.7 of the decision of the Apex Court in the case of Kerala State Electricity Board and Another (supra) and submitted that since the impugned judgment and order is made in the year 1997, at this stage, this Court should not interfere. 6. I have carefully considered the submissions. Section 4 and 4A of the said Act of 1923 were amended by Act No.20 of 1995. The amending Act was brought into force with effect from 15th September, 1995. The relevant change introduced by the amending Act was that : 4 : 4 : 4 : the wages were required to be taken at Rs.2,000/- instead of Rs.1,000/- as per the second explanation to section 4 of the said Act. The second change which was brought about was in section 4A by which 50% of the wages was required to be considered for computing compensation instead of 40% as provided in the unamended Act. 7. It will be necessary to refer to the decision of the Apex Court in the case of Kerala State Electricity Board (supra). Paragraph No.1 of the said decision notes the question involved in the Special Leave Petition before the Apex Court. The said paragraph reads as under: "1. The neat question involved in these special leave petitions is whether the amendment of sections 4 and 4-A of the Workment’s Compensation Act, 1923, made by Act 30 of 1995 with effect from 15.09.1995, enhancing the amount of compensation and rate of interest, would be attracted to cases where the claims in respect of death or permanent disablement resulting from an accident caused during the course of employment, took place prior to 15.09.1995". : 5 : 5 : 5 : After referring to its two earlier decisions including the decision in the case of Pratap Narain Singh Deo (supra), the Apex Court answered the question in paragraph No.6 which reads thus: "6. Having answered the question posed in the earlier part of the judgment in the negative, we shall take up this batch of special leave petitions for consideration". 8. It must be noted here that in the decision of Kerala High Court in the case of Oriental Insurance Co Ltd reliance was placed by the Kerala High Court on a decision of the Apex Court in the case of New India Assurance Co Ltd Vs. V.K.Neelakandan and Others (1996 INDLA WSC 1666). In paragraph No.3 of the said decision of the Apex Court rendered by a Bench consisting of two Hon’ble Judges, a reference has been made to the amendment of section 4 of the said Act of 1923. The Apex Court after referring to the scheme of the said Act of 1923 observed that the benefit of the provisions of the amended Act will be available on the date on which the case is finally decided. It must be noted that the decision of the Apex Court in the case of Kerala State Electricity Board (supra) is of a larger bench of the Apex Court in which the Apex Court has specifically referred to the decision in the case of New India : 6 : 6 : 6 : Assurance Co Ltd (supra). The Apex Court held that the view taken by the bench consisting of two Hon’ble Judges in the said case was incorrect. The Apex Court in the said decision of the Kerala State Electricity Board has placed reliance on the view taken by the larger bench of the Apex Court in the case of Pratap Narain (supra). 9. A reliance was placed by the advocate for respondent Nos.1 to 8 on observations made in paragraph No.7 of the decision of the Apex court in the case of Kerala. On plain reading of paragraph no.7 it is obvious that the Apex Court was exercising powers under Article 136 of the Constitution of India and considering peculiar facts of the case before it the Apex Court declined to exercise the jurisdiction under Article 136 though it was found that the compensation was not payable as per the provisions of the amended Act. This Court is dealing with a statutory appeal provided under section 30 of the said Act of 1923. Therefore, the observations in paragraph No.7 of the said decision will not help the respondents. 10. Coming back to the facts of the case, from paragraph No.9 of the impugned judgment it is clear that the amended provision of the said Act of 1923 were made applicable while computing the compensation. Thus, the learned Commissioner has committed a clear error of law. : 7 : 7 : 7 : There is no dispute that in the present case relevant factor applicable as per Schedule IV will be 205.95. The wages will have to be taken at Rs.1000/-. Taking 40% of the wages and multiplying the amount equivalent to the 40% of the wages by 20.5.95, the compensation amount payable comes to Rs.82,380/-. 11. At this stage, without prejudice to his submissions, the learned counsel appearing for the respondent Nos.1 to 8 prays that a direction may be issued to the appellant to pay the penalty. Apart from the fact that no case is made out for issuing that direction, the said respondents have not chosen to challenge the impugned judgment and order which is passed on 11th December, 1997 till today. 12. Hence, appeal must succeed in part. Hence, I pass the following order: (i) The impugned judgment and order dated 11th December, 1997 is modified and it is held that the respondent Nos.1 to 8 will be entitled to compensation of Rs.82,380/- instead of Rs.02,05,950/-. Rest of the impugned order is maintained. On the basis of this judgment, the learned Commissioner will pas the appropriate orders. : 8 : 8 : 8 : (ii) Civil Application No.4997 of 1998 does not survive and the same is disposed of. Judge. Judge. Judge.