IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 MFA.No. 232 of 2009 C --------------------- (AGAINST THE ORDER IN W.C.C.NO.31 OF 2005 DATED 4.6.2009 OF THE COURT OF THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), THRISSUR.) .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------------------------------------- THE ORIENTAL INSURANCE CO. LTD., THRISSUR NOW REP. BY ITS ASSISTANT MANAGER REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANTS --------------------------------------------- 1. VAHEETHA W/O. ANVAR @ SATHEESHKUMAR, POKKAKKILLATH HOUSE, VADOOKKARA, THRISSUR DIST. 2. AYSH THAHAR (MINOR) S/O. VAHEETHA, DO-DO- REP. BY HIS MOTHER 1ST RESPONDENT. (NO RELIEFS ARE CLAIMED AGAINST OPPOSITE PARTIES 1, 3 & 4 IN THE APPLICATION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL.) ADV. SRI.RAJIT FOR R1-2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC).NO.232 OF 2009 C ------------------------------------------ Dated this the 19th August, 2011 JUDGMENT K.M. Joseph, J. Appellant is the second opposite party/insurer in a claim under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded Rs.3,66,930/= with interest at 12 per cent from the date of accident. 2. Two contentions are raised by the appellant. Firstly, it is contended that the Commissioner has taken the income as Rs.3,600/= per month, when there is no documentary evidence to support the finding. Next, it is contended that the Commissioner ought not to have directed payment of interest from the date of the accident. He would point out 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 accident. 3. As far as the question of wages is concerned, we notice that the claimants set up a case that the deceased was in receipt of Rs.4,500/= per month. There was a dispute raised by the MFA(WCC).NO.232/2009 C 2 appellant. An issue was raised. It was answered as follows: “Issue No.3: Ex.A13 is a copy of passport of the deceased. In these documents the date of birth of deceased Ashraf is shown as 8.4.1972. Accordingly, the deceased had completed 32 years age at the time of the accident on 2.5.2004. As per the statement of the applicants, the deceased was getting Rs.4,500/= per month from the 1st opposite party, but not produced any document to prove their claim. Even though the 2nd opposite party objected the claim of wages, they also not produced any document to disprove the claim of applicants. Hence I take the deceased's monthly salary as Rs.3600/= for calculation of compensation amount considering the deceased's profession as a Cleaner in a lorry during the year 2004.” 4. The Commissioner has taken the wages at Rs.3,600/= per month. It is true that the Commissioner has noted that there was no documentary evidence on the side of the appellant. We, however, must notice a few aspects. At the first place, the accident took place in the year 2004. The deceased was working as a Cleaner. He was aged about 32. There was oral evidence given. The Commissioner has further noted that there was no material produced by the opposite parties to disprove it. It is no MFA(WCC).NO.232/2009 C 3 doubt true that primarily it is for the applicants to prove their case. But, the fact that there is no evidence at all on the part of the opposite parties indicating that the income was not as suggested by the applicants. It is also a relevant aspect. In the circumstances of this case, having regard to the year and the nature of the employment of the deceased, and in particular reminding ourselves on the limitation of the exercise of the appellate jurisdiction under Section 30 of the Act, namely the existence of a substantial question of law, we decline to accept the case of the appellant in this regard. 5. As far as the further question is concerned, it relates to payment of interest. Learned counsel for the appellant 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 engaged the attention of the Apex Court and a Bench of four Judges in Pratap MFA(WCC).NO.232/2009 C 4 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.” It is no doubt pointed out that the said Judgment related to a scheduled injury and the facts were different. 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 inter alia held as follows : “In Mubasir Ahamed's case, Maghar Singh's case was relied, but, directed to pay interest from the date of MFA(WCC).NO.232/2009 C 5 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 decision of the Division Bench of this Court. 6. The same view was taken by another Division Bench in an employer's appeal in Harrisons Malayalam Ltd. v. P.K.Ashraf and Others [2009(1) KHC 799 (DB)]. We also MFA(WCC).NO.232/2009 C 6 notice that this is a case of death. In such circumstances, we see no merit in the contention based on interest, either. Accordingly, we see no merit in the Appeal and the Appeal is dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// PS to Judge