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. 270 of 2009 ------------------------------------ (AGAINST THE ORDER DATED 18.5.2008 IN W.C.NO.322/2001 ON THE FILE OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION, KOZHIKODE. .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., CHEROOTTY ROAD, KOZHIKODE. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP 1. ---------------------------------------------------------- 1. BIJU, S/O.KORAN, NAVARA PARAMBATH, PUTHALATH, POST PUNATH 673 614, NADUVANNUR, KOYILANDY. 2. K.K.MAMMU, KARIKULANGARA HOUSE, CHECKKUNNI, POST KAKKATTIL 673 507. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R2 SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 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.270 OF 2009 F ------------------------------------------ Dated this the 18th August, 2011 JUDGMENT K.M. Joseph, J. The Appeal is filed by the second respondent/opposite party, namely the insurer. Appellant has raised the following substantial questions of law: “(i) Can the Commissioner make the insurer liable to pay the interest liability from the date of accident when there was no notice or claim under Section 10(1) or under the contract of insurance. (ii) Is not such a direction contrary to the dictum laid down by the Apex Court in National Insurance Company Ltd. v. Mubazir Ahammed - II 2007 ACC 374 and again reaffirmed in the recent decision of the Apex Court in Kamala Chathurvedi v. National Insurance Co. Ltd. (2008 (4) KLT 862).” MFA.NO.270 OF 2009 F 2 2. However, when the matter came up, learned counsel for the appellant presses I.A.No.2207/2011. We allow the said IA. Thereafter, we considered the Appeal. 3. The Commissioner has awarded interest from the date of accident. It is the said direction, which is the subject matter of the complaint in the Appeal. 4. 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 MFA.NO.270 OF 2009 F 3 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. So in the present facts and circumstances the Commissioner was fully justified in making an order for the payment of interest and the penalty.” 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 : MFA.NO.270 OF 2009 F 4 “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 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. 5. The same view was taken by another Division Bench MFA.NO.270 OF 2009 F 5 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 find no merit in the Appeal. We follow the Judgment of the Division Bench in National Insurance Co. Ltd. v. Rekha (2007 (4) KLT 386) and we see no reason to take a different view. Accordingly, we see no merit in the substantial questions of law which were pressed before us. The Appeal is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True copy// PS to Judge MFA.NO.270 OF 2009 F 6