: 1 : 2009-11-fa=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2009 OF 2011 The New India Assurance Co. Ltd. .. Appellant v/s. Shri Raju Vitthal Shinde & Ors. .. Respondents ......... Mr. Devendranath S. Joshi for the appellant Mr. A.K. Jalisatgi for respondents ......... CORAM : A.V. NIRGUDE, J DATE : 14th DECEMBER,2011. P.C. : 1. I heard submission in this Appeal yesterday and by consent of the learned Counsel appearing for the parties I am deciding the appeal finally at admission stage. 2. It is an appeal filed under Section 30 of the Workmen's Compensation Act (hereinafter referred to as the said Act). The appellant is required to show that in the appeal a substantial question of law is arising. After I heard submissions yesterday, I noticed three questions and thought that they would be substantial questions of law. They are quoted : 2 : 2009-11-fa=.sxw below. I would deal with them one by one. (i) Whether the learned Commissioner erred in awarding the interest from the date of accident ? (ii)Whether the interest is payable from the date of adjudication ? (iii) Whether the respondent claimant could prove that he had suffered 100% loss of earning ? 3. Question (i) and (ii) can be decided together because they give rise to a question as to ‘since when interest is payable on the compensation amount?’. In this case facts in short are as under. The respondent no.1 the original claimant was working as driver of Truck with respondent no.2. When he was driving a Truck belonging to respondent no.2, on 27th September, 2003, he met with an accident and sustained serious injuries. Due to such injuries, his toe of right leg was amputed. He thereafter made a claim for compensation before the Commissioner. The respondent no.2, the employer of the claimant did not file any written statement despite service of notice but the appellant Insurance Company opposed the application submitting a written statement, in which they raised several defenses including denial of relationship between the claimant and the respondent no.2. They further asserted that it was because of the : 3 : 2009-11-fa=.sxw claimant's negligence the accident occurred etc. They also asserted that at the time of accident the claimant did not hold a valid Driving license etc. In view of the rival pleadings certain issues were framed and after recording of the evidence, the learned Commissioner came to a conclusion that all though the medical opinion about the permanent disability sustained by respondent no.1 / claimant is only of 40%, but since he was unable to drive a vehicle after the accident, he would not be able to work as a driver and so the loss of earning capacity was 100%. He further held that the respondent no.1 claimant held a valid license on the date of accident and that the appellant should pay compensation along with the interest from the date of accident from 27th October, 2003 (one month after the date of accident). In this background, I would deal with the first question. The learned Counsel appearing for the appellant asserted that interest would became payment only after adjudication and so it should be made payable from the date of award. He placed reliance on two judgments of Supreme Court, which are as follows. (a) National Insurance Co. Ltd. Vs. Mubasir Ahmed & Anr. 2007 I CLR S.C. 943. (b) Kamla Chaturvedi Vs. National Insurance Co. & Ors. (2009) 1 SCC 487. : 4 : 2009-11-fa=.sxw The learned Counsel appearing for the appellant placed reliance on following paragraph in the first mentioned judgment. “8. 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 Singh (1998 (9) SCC 134). By Amending Act, 14 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, therefore, 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. 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 when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon 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 assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-Section (2) of Section 4-A. It provides 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 claimed. The crucial expression is “falls due”. Significantly, legislature has not used the expression “from the date of accident”. Unless there is an adjudication, the question of an amount falling due does not arise.” : 5 : 2009-11-fa=.sxw 4. Even going by the ratio of this judgment, the submission of the learned Counsel appearing for the appellant is erroneous. In paragraph 8 quoted above, the Supreme Court observed that “since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim”. This observation was pertaining to the facts of the reported case. In this case, there is clear indication on record as to when the compensation became due. The accident took place on 27th September, 2003, soon thereafter the employer became aware of the same and since the employer did not abide by the provisions of Section 4 to pay the compensation directly to the respondent no.1 claimant, after one month from the date of accident the compensation became due. In this connection, there is one more Supreme Court judgment in the case of Pratap Narain Singh Deo Vs. Srinivas Sabata & Anr. Manu/SC/0021/1975. This judgment is delivered by four judges bench of the Supreme Court and, therefore, it would have precedence over the judgments referred to above and relied by the learned Counsel for the appellant's Counsel. The relevant portion of the Supreme Court Judgment in the case of Pratap Narain Singh’s case (Supra) is quoted below to illustrate the ratio on this point. : 6 : 2009-11-fa=.sxw “6. It has next been argued that the Commissioner committed a serious error of law in imposing a penalty on the appellant under Section 4A(3) of the Act as the compensation had not fallen due until it was ‘settled’ by the Commissioner under Section 19 by his impugned order dated May, 6, 1969. There is however no force in this argument. 7. Section 3 of the Act deals with the employer’s liability for compensation. Sub-Section (1) of that section, provides that the employer shall be liable to pay compensation if “personal injury is caused to a workmen by accident arising out of and in the course of his employment”. It was not the case of the employer that the right to compensation was taken away under Sub- Section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore become liable to pay the compensation as soon as the aforesaid personal injury was caused to the workmen by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the commissioner’s order dated May 6, 1968 under Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of argument, he settled by the commissioner. There is therefore nothing to justify the argument that the employer’s liability to pay compensation Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.” 5. The above quoted paragraphs supports the case of the claimant's and also supports the impugned judgment passed by the learned : 7 : 2009-11-fa=.sxw Commissioner. 6. The question no.3 :- Although yesterday I recorded this question as substantial question of law, after hearing the submissions at length today, I realized that it is not really a substantial question of law. The learned Commissioner held on facts that though respondent no.1 suffered 40% disability of earning due to amputation of one Toe of right leg, since he is unable to drive a vehicle, he had suffered 100% loss of earning. The learned Counsel appearing for the appellant tried to suggest that the finding of the learned Commissioner is erroneous because there is nothing on record to show that respondent no.1 is unable to drive the vehicle after the accident. He also pointed out that respondent no.1 continued his driving license. Indeed the driving license of the respondent no.1 has come on record and it is seen that it is valid till 2012. The learned Counsel thereby tried to suggest that the respondent no.1 is still driving a vehicle. I am afraid this argument is incorrect. After the accident respondent no.1 stated on oath that he is unable to drive a vehicle. If this statement is believed then his driving license meant nothing to him. It is merely an old license issued to him for something which he is unable to do now. : 8 : 2009-11-fa=.sxw 7. The learned Counsel also discussed as to whether the respondent no.1 held a valid license on the day of accident for driving a transport vehicle such as a truck. But the contents of the licence issued in 2002, which is produced on record as Exh. U-4 is sufficient proof of such license. It is clearly mentions that the respondent no1 was holding license to drive a heavy transport vehicle during the validity of such license. In view of this, appeal is failed. Appeal stands dismissed. 8. In view of the order passed in the appeal, Civil Application does not survive is is disposed of accordingly. (A.V. NIRGUDE, J.)