F.A.O. No.5489 of 2009 (O&M) 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... F.A.O. No.5489 of 2009 (O&M) Date of Decision: November 01, 2011 ICICI Lombard General Insurance Company Limited ... Appellant VERSUS Sh.Samay @ Samay Khan and others ... Respondents CORAM : HON'BLE MR.JUSTICE MOHINDER PAL Present: Ms.Vandana Malhotra, Advocate for the appellant. -.- MOHINDER PAL, J. C.M.No.27127-CII of 2009 For the reasons stated in the application, which is supported by an affidavit, the same is allowed and the delay of 38 days in filing the instant appeal is condoned. F.A.O.No.5489 of 2009 M/s ICICI Lombard General Insurance Company Limited (hereinafter referred to as 'the Insurance Company') has preferred this appeal against the order/award dated 30.07.2009 passed by the Commissioner under Workmen's Compensation Act, 1923, Circle-4, Gurgaon (hereinafter referred to as 'the Commissioner') whereby the claimants were held entitled to the compensation to the tune of `5,31,652/- (`4,27,140/- as compensation, `1,02,512/- as interest and ` 2,000/- as expenses) and in case the amount of compensation along F.A.O. No.5489 of 2009 (O&M) 2 with interest was not deposited within 60 days of this order, the whole amount of compensation would be recoverable with interest @ 12 per cent per annum. Since the owner had insured the vehicle in question with the Insurance Company, the claimants were held entitled to receive the said amount of compensation from the Insurance Company. The workman Tofiq Ali, aged 27 years, was working as a driver on truck bearing registration No.HR-38K-3131 owned by respondent No.4 and was held by the Commissioner to be earning `4000/- per month as wages. On 03.05.2007, he was driving the said vehicle and reached in the Police Station Sanawad. The vehicle in question struck with another vehicle and due to this accident he received grievous injuries and died. F.I.R. had been registered on 05.05.2007 and post-mortem examination was conducted. The claimants had filed the claim application before the Commissioner. Respondent-owner of the offending vehicle failed to appear before the Commissioner. He was proceeded against ex-parte. Respondent No.2 (appellant herein) only contested the application. Following issues were framed in the case:- “(i) Whether the injury which resulted to death of deceased caused by accident arising out of and during the course of his employment? (ii)Whether the applicants are entitled to the claimed amount or not? If so with what detailed and from whom? (iii) Relief.” Under issue No.1, it was observed by the Commissioner that there existed the relationship of master and servant between owner of offending vehicle and the deceased and Tofiq Ali (since deceased) met with an accident resulting into his death during the course of F.A.O. No.5489 of 2009 (O&M) 3 employment. Issues Nos.1 and 2 were decided in favour of the claimants-respondents No.1 to 3 and they were awarded compensation as stated above. I have heard Ms.Vandana Malhotra, Advocate appearing for the appellant and have gone through the record of the case. So far as factum of accident leading to the death of Tofiq Ali (since deceased) on 03.05.2007 during the course of employment of respondent No.4-owner of the offending vehicle- working as driver is not seriously disputed. Even otherwise, the findings of the Commissioner, after appreciating the evidence led by the claimants-respondents No.1 to 3 cannot be said to be improper or perverse. It has been duly proved from the statement of AW1 Samay father of the deceased and lodger of FIR, AW2 Shokeen, copy of FIR and post mortem report that deceased was employed as driver with respondent No.4 at the relevant time and he died during the course of employment. Under the circumstances, the Commissioner awarded compensation to the tune of `4,27,140/- to the claimants vide the impugned award. I do not see any ground warranting interference in the impugned award so far as award of compensation to the workman is concerned. Learned counsel for the appellant has submitted that the Commissioner has awarded interest on higher rates and in any case, at the most the interest could be awarded from one month after the date of adjudication i.e. the date of award and no interest is payable before that date as has been held by the Hon'ble Supreme Court in case titled as Kamla Chaturvedi Vs. National Insurance Company Limited and others 2009 ACJ 115. As far as interest on payment of compensation amount is F.A.O. No.5489 of 2009 (O&M) 4 concerned, it is to be mentioned that earlier this Court is awarding interest @ 9 per cent per annum instead of 12 per cent per annum in some of the cases keeping in view the facts and circumstances of those cases but the position now becomes clear in view of the judgment of Kamla Chaturvedi's case (supra) and in this judgment reliance was also placed to the decision rendered in National Insurance Company Limited Vs. Mubasir Ahmed, 2007 ACJ 845 (SC)-para 9 of the said judgment reads as under:- “(9) 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 Vs. Jashwant Singh, 1997 ACJ 517 (SC). 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 at the rate of 12 per cent. In the instant case, the accident took place after the amendment and, therefore, the rate of 12 per cent 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 to be the date of adjudication of the claim. This appears to be so because section 4-A (1) prescribes that the 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 F.A.O. No.5489 of 2009 (O&M) 5 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.” In the light of aforesaid position and relying upon the decision of Hon'ble Supreme Court in Kamla Chaturvedi's case 2009 ACJ 115- it is held that interest awarded by the Commissioner would be payable at the rate of 12 per cent per annum on the compensation amount and that too from the date of adjudication i.e. date of award and not from the date of accident. The impugned award is modified to the extent indicated above. With the above modification in the impugned award, this appeal is hereby dismissed. November 01, 2011 ( MOHINDER PAL ) jt JUDGE