MFA 132/2003 BEFORE HON’BLE MR JUSTICE HN SARMA This appeal arises out of the judgment and award dated 16.9.2003 passed by the Commissioner, Workmen’s Compensation, Nagaon in W.C. Case No. 89/2000 the reby awarding compensation to the extent of Rs. 59118/- with interest at the rat e of 12% per annum from the date of filing of the application until payment. 2. Heard Mr. A. Ahmed, learned counsel appearing for the appellant and Mr. M. Choudhury, learned counsel appearing for the respondent No. 1/claiman t. None appears for the respondent No. 2, the owner of the vehicle. 3. The claimant/respondent was employed as driver under the respond ent No. 1. While the claimant was proceeding from Lanka to Mujafarpur driving th e vehicle No. ML-05(A)/0676(truck), he met with an accident at Sahabganj in the district of West Bengal. The accident occurred due to collision between the truc k driven by the claimant as well as the vehicle coming from the opposite side. A s a result of the accident, the claimant sustained injuries on his face and ches t for which he was properly treated. His final treatment was undergone at Nagaon in the State of Assam. It is the case of the claimant that as a result of the i njuries he was out of employment as he was unfit to continue with the driving jo b. Accordingly, he filed a claim case under the Workman Compensation Act, 1923 b efore the court of Workman Commissioner, Nagaon which was registered as W.C. Cas e No. 89/2000. In his claim petition the clamant asserted that he was 35 years o f age and at the time of the accident he was drawing monthly wages of Rs. 2,000/ - and additional allowance of Rs. 100/- and the vehicle was insured with the app ellant Insurance Company. Upon receipt of the summon the respondent No. 2 the ow ner of the vehicle as well as the Insurance Company appeared and submitted their written statement. The owner/respondent No. 2 admitted that the claimant was en gaged as a driver but on temporary basis and the accident occurred due to the ne gligent act of the driver. The owner further pleaded that if any compensation is awarded that should be indemnified by he Insurance Company with which the vehic le is insured. The appellant Insurance Company denied all the allegations raised in the claim petition by the claimant. 4. On the basis of the pleadings the following issues were framed : 1. Whether there is cause of action for the claim ? 2. Whether the claimant is a workman as defined in Sec. 2(1) (n) of the W.C. Act ? 3. Whether the claimant sustained injuries in course of and arising out of his employment under the OP No. 1 in relation to vehicle No. ML-05A/0676 ? 4. Whether the claimant is entitled for compensation for loss of his earnin g capacity and it affirmative who is liable to pay ? 5. At the time of hearing the claimant examined himself and one do ctor Sadullah who treated the claimant. The claimant proved as many as eight doc uments including the medical documents such as X-ray report, prescriptions, disa blement certificate and certified copy of the FIR and his driving license. Neith er the owner nor the Insurance Company examined any witness but the insurance co mpany cross examined the claimant witnesses. The Commissioner upon perusal of the materials available on record including the statements of the witnesses awar ded a sum of Rs. 59,118/- accepting the wages of the claimant to be Rs. 2000/- p er month and his age to be thirty five years Since the vehicle was duly insured with the Insurance Company, it was directed that the appellant should indemnify the compensation. The Commissioner further contends that the claimant would be e ntitled to simple interest at the rate of 12% p.a. on the awarded sum w.e.f. fro m the date of filing of the claim petition till payment. 6. Challenging the aforesaid judgment and award dated 16.9.03 the p resent appeal was filed. The appeal was admitted to be heard and following subst antial questions of law were framed. i) whether the injury sustained by the respondent/workman amount to perman ent partial disablement as defined under Section 2(g) of the Act, so as to award compensation under the provisions of Section 4(1) ( c) of the Act and, if not w hether the workman is entitled to any compensation under Section 4(1) (d) of the Act ? and ii) Whether the interest under Section 4(a)(3) of the Act can be awarded fro m the date of the accident or from the date of filing of the claim application. 7. In support of the appeal, Mr. Ahmed with relevance to substantia l question No. 1 do not justify awarding compensation to the claimant, inasmuch as, the injuries sustained by the claimant are not of the nature of permanent i njuries. It is submitted that during the course of accident the eight ribs of th e petitioner were broken and CW 2 the doctor who treated the petitioner and issu ed the Ext.- 6, the Disability Certificate. In his deposition before the court has specifically stated in cross examination that such facture of the ribs can b e cured. 8. In view of the above statement, the injuries sustained by the dr iver cannot be said to be of permanent nature attracting Section 4(1)(c) of the Act and at best it would attract the provision of Section 4 (1) (d) of the Act. 9. I have gone through the statements of the doctor CW 2. The docto r in his chief examination narrating the injuries stated that due to the injury sustained, by the claimant he has lost his physical fitness to drive. The doctor prove the prescriptions issued by him to the claimant as Exts.- 3, 4 & 5. The X -ray report is proved as Ext- 2 which discloses the fracture injury of the claim ant. The doctor further stated that the injuries sustained by the claimant are p ermanent in nature. However, in cross examination, as relied on by Mr. Ahmed, th e doctor has admitted that if proper treatment is taken such injury can be cured or may not be cured. 10. Marshalling the evidence of the doctor as well as the claimant, we find that the doctor has specifically stated in chief-examination that the i njuries sustained by the claimant are permanent in nature. However, the statemen t given in cross examination is of general nature and the doctor has not stated that in case of treatment, the injuries sustained by the claimant is recoverable . The claim made by the claimant is under Workman Compensation Act which is the beneficial legislation. Driving is a strenuous job. The doctor has specific ally stated that the injuries sustained by the claimant are of permanent nature. 10. Upon marshalling the evidence of the doctor, I find that the Com missioner has correctly assessed the evidence and came to a proper finding that the injuries sustained by the claimant would fall under Clause 3(1)(c) of the Ac t. Accordingly, the substantial question no. 1 is answered against the appellan t. 11. As regards the other substantial question of law, it is submitte d by Mr. Ahmed referring to the decision of the Apex Court rendered in National Insurance Co. Ltd. v. Mubasir Ahmed reported in 2007 (2) SCC 349 that the claman t is entitled to interest only if the Insurance Co. refuse to indemnify the clai m within a period of thirty days from the date of determination, and not from th e date of filing of the application for compensation. Accordingly, the Commissio ner committed obvious error in awarding the interest from the date of filing of the application i.e. 24.4.2000. 12. Mr. Choudhury however referring to the decision of the Apex Cour t reported in 2009 6 SCC 280 ( Oriental Insurance Co. Ltd. Vs. Mohd. Nasir and A nother) and submits that a driver of a vehicle who is statutorily liable to be p aid interest in case of injury sustained by him under the Motor Vehicle Act is p ermissible under the law and the statute do not debar payment of such interest. 13. In Md. Nasir(supra) the Apex Court had the occasion to consider the decision of Musabir Ahmed(supra). In the aforesaid decision rendered subsequ ently in Md. Nasir(supra) at paragraphs 49, 50 and 51 the Apex Court has held as follows - 49. Section 4-A(3), as it appears from a plain reading, is penal in nature. It, however, does not take into consideration the chargeability of interest on various other groun ds including the amount which the claimant would have earned it the amount of co mpensation would have been determined as on the date of filing of the claim peti tion. The Workmen’s Compensation Act does not prohibit grant of interest as a re asonable rate from the date of filing of the claim petition till an order is pas sed. Only when sub-section (3) of Section 4-A would be attracted, a higher rate of interest would be payable wherefor a finding of fact as envisaged therein has to be arrived at. Only because in an given case, penalty may not be held to be leviable, by itself may not be a ground not to award reasonable interest. 50. Reliance has been placed on Musabir Ahmed wherein it was held: (SCC pp. 354-55, para 9) 99. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh3. By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, th erefore, the rate of 12 % as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident . Since no indication is there as to when it becomes due, it has to be taken Sec tion 4-(A) (1) prescribes that compensation under Section 4 shall be paid as soo n as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the asse ssment of loss of earning capacity by a qualified medical practitioner. Unless a djudication is done, question of compensation becoming due does not arise. The p osition becomes clearer on a reading of sub-section (2) of Section 4-A. It provi des that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claim ed. The crucial expression is falls due . Significantly, legislature has not u sed the expression ’from the date of accident’. Unless there is an adjudication , the question of an amount falling due does not arise. As therein this aspect of the matter has not been considered, we are of the opin ion that interest will also be payable at the rate of 7‰% per annum from the dat e of filing of the application till the date of award. The rate of interest ther eafter shall be payable in terms of the order passed by the Commissioner. 51. However, in the cases determined under the Motor Vehicles Act, interest stipulated therein shall become payable. 14. Thus in view of the aforesaid position of law relating to paymen t of interest from the date of filing of the application under the Workmen’s Com pensation Act, the Commissioner did not commit any error, factually, or jurisdic tionally in granting interest from the date of filing of the application and the court is not precluded from granting such interest. The claimant driver was out of employment for the said period also. However, the interest for the said peri od i.e. from the date of filing of the application till expiry of one month of t he award the same shall be at the rate of 7‰ % and not 12% as awarded and the c laimant would be entitled to interest of 7‰ % only. 15. With the above direction, the second substantial question of law so framed also stands answered partly in favour of the appellant. 16. The appeal stands allowed altering the rate of interest to the e xtent of 7‰ % from the date of filing of the application till expiry of one mont h from the award. 17. The permissible amount shall be allowed to be withdrawn by the cl aimant from the Registry in terms of this judgment.