IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 MFA.No. 35 of 2009(D) -------------------- WCC.372/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- NATIONAL INSURANCE CO. LTD., THRISSUR, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G. ROAD, KOCHI-35. BY ADV. SRI.E.M.JOSEPH RESPONDENT(S): APPLICANT AND IST O.P ------------------------------------ 1. VIJAYAN, AGED 40, S/O. KARHIAYANI, PANDATT HOUSE, VIYUUR, THRISSUR. 2. R. BALASUBRAMANIAN, PROPRIETOR, GOKUL FUELS, BPC DEALERS, VI-4, EAST NADAR, GURUVAYOOR, THRISSUR DT. ADV. SRI.T.MADHU FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 35 OF 2009 = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2009. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.372/03. The claimant a cleaner of a lorry sustained injuries in an accident and he has claimed compensation under the Workmen's Compensation Act. The insurance company had denied everything in the written statement and ultimately the Workmen's Compensation Commissioner found that the injury had taken place during the course of employment and that it is an employment injury, fixed his income at Rs.3,000/- took a disability at 30% and calculated the compensation at Rs.99,452/- with 12% from the date of accident. It is against that decision the insurance company has come up in appeal. M.F.A. 35 OF 2009 -:2:- 2. The insurance company, when the matter came up for admission had raised the following substantial questions of law. “(1) Whether the Commissioner was right in law to direct the appellant to pay compensation in the light of the fact that the lorry was taken out at midnight, when there was lorry strike and the striking workers caused riot and threw stones at the lorry, which caused injury to the applicant? (2) whether the loss of earning capacity fixed at 30% without considering the permanent disability of 11% is correct and whether the quantum fixed is in accordance with law? (3) Whether the applicant is liable to pay interest from the date of the accident in view of the Hon'ble Supreme Court decisions reported in 2007 AIR SCW 1265 and 2008 (4) KLT 862(SC). (4) Whether the appellant is liable to pay interest from the date of accident in view of the stay granted by the Hon'ble M.F.A. 35 OF 2009 -:3:- Supreme Court in S.L.P. 12355/08 on the same issue.” Points 1 to 4: 3. The factum that the injury was sustained by the claimant while he was working as cleaner of the lorry owned by the first respondent in the application is substantiated by the evidence of the claimant. The owner has not come up before the Court to deny the employer-employee relationship. Further it can be seen that during the strike period of tanker lorries the claimant along with the driver was attempting to take the vehicle out and it was in that process the other persons joined together and pelted stones on the lorry resulting in injuries to the person. So the fact that he was in the lorry working as an employee of the lorry is proved by that fact and that he had sustained injuries on account of the pelting of stones. It also proves the fact that the particular injury was sustained in the course of employment. So from these materials I hold that the claimant was an employee of the first respondent, owner and M.F.A. 35 OF 2009 -:4:- that he had sustained injuries in the course of the employment and therefore he is entitled to compensation under the Workmen's Compensation Act. 4. The learned counsel for the insurance company would contend that the policy does not cover the risk when an injury takes place in the course of a riot. I had been given the written statement filed by the insurance company and they have not stated at all that the injury had been caused by such a riot. Therefore what is not there in the pleadings cannot be looked into by any Court of jurisdiction and therefore that argument has to be negatived. 5. The next point is regarding the compensation. It can been seen that on account of the incident the claimant sustained a fracture on the left frontal bone. He had a left optic nerve injury. There was fracture on the orbital bone, zygomatic bone and also left zygomatic arch. A disability certificate is produced as Ext.A7 which would prove that his permanent disability is at 11% and loss of earning capacity as 22%. M.F.A. 35 OF 2009 -:5:- 6. The next certificate is Ext.A13 regarding the visual disability which would show that there is no perception of light left eye and he had developed primary optic atrophy. The Doctor assessed the disability at 30%. Now it has to be stated the methodology of calculating the loss of earning capacity must be as per the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462(FB). The Full Bench of this Court held that the loss of earning capacity has to be assessed not depending upon the loss of earning capacity with reference to the particular work he was doing but with reference to the whole work which he was capable of doing. 7. After hearing both the sides and considering the fact that he had sustained large number of fractures coupled with the optic nerve injury which had developed into optic atrophy I fix the loss of earning capacity at 22% so as to avoid further delay of the litigation after consulting and discussing the materials with both the lawyers. When the percentage of loss of earning capacity is fixed at 22% then M.F.A. 35 OF 2009 -:6:- the compensation has to be calculated as follows. 3,000 x 60/100 x 184.17 x 22/100. This would come to Rs.72,930.32 which I round as Rs.72,930/-. 8. Lastly, the learned counsel for the insurance company very strongly contends about the rate of interest. I will refer to a decision of the Himachal Pradesh High Court reported in New India Assurance Company v. Budh Ram and another(2009(4) TAC 614)(HP). In that decision the learned Judge has followed a Division Bench ruling of this Court reported in National Insurance Company Ltd. v. Rekha 2008 ACJ 886. In National Insurance Company Ltd. v. Rekha this Court considered the fact that there is a constitutional Bench decision of the Supreme Court reported in Pratap Narain Singh v. Shrinivas Sabata (AIR 1976 SC 222) wherein the entitlement of interest is from the date of accident. The Division Bench of the Kerala High Court also considered the question when there is a larger Bench Decision of the M.F.A. 35 OF 2009 -:7:- Supreme Court and a subsequent decision deviating from it then the decision of the larger Bench will prevail. It was on those principles the Division Bench of this Court granted interest at the rate of 12% from the date of accident. The learned Judge of the Himachal Pradesh High Court has taken the view as follows. ''The Constitutional Bench had already decided the question as to when compensation falls due in terms of the Workmen's Compensation Act, 1923. Unfortunately, this decision of the Constitution Bench was not brought to the notice of the Apex Court while deciding National Insurance Company Ltd. v. Mubasir Ahmed and another, 2007 ACJ 845: 2007(2) TAC 3. Therefore, I feel that this Court is bound by the judgment rendered by the Constitutional Bench of the Apex Court and I accordingly hold that the compensation falls due on the date when the accident takes place and in case the same is not deposited within thirty days, the workman is entitled to claim interest at M.F.A. 35 OF 2009 -:8:- the rate of 12% per annum without having to show that delay in depositing the compensation was attributable to the employer. While taking this view, I am supported by a Division Bench judgment of the Kerala High Court reported in National Insurance Company Ltd. V. Rekha, 2008 ACJ 886.” 9. In the light of these pronouncements I hold the view that the claimant is entitled to interest at the rate of 12%. The stay if any is only with reference to that particular case and not otherwise. Therefore the MFA is disposed of as follows. 10. The claimant is awarded a compensation of Rs.72,930/- together with simple interest of 12% per annum from 19.7.2003 till realisation and the insurance company is directed to deposit the said amount. If the amount is already deposited the entitled amount be disbursed to the applicant and the balance amount be reimbursed to the insurance company. M.F.A. 35 OF 2009 -:9:- M.N. KRISHNAN, JUDGE. ul/-