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 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 MFA.No. 92 of 2009() -------------------- WCC.38/2004 of Commissioner for Workmen's Compensation Thiruvananthapuram. .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, PALAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANTS ------------------------- 1. SMT.K.VASANTHA, KOCHAMAKUZHI VEEDU, UDARAMOOLA, KATTAYAIKONAM POST, THIRUVANANTHAPURAM. 2. SUDHEESH MINOR (AGED 9 YEARS), DO. DO. 3. LALU MINOR (AGED 4 YEARS) OF DO. DO. (MINORS TWO AND THREE REP. BY THEIR GUARDIAN AND GRAND MOTHER SMT.K.VASANTHA THE FIRST RESPONDENT HEREIN). 4. SRI.SHIBU, S/O.ANANDAN, PALAKKATTUVILA VEEDU, 41/10, KATTAYIKONAM, THIRUVANANTHAPURAM. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.92 of 2009 ----------------------------------------------- Dated 29th September, 2011. J U D G M E N T K.M.Joseph, J. Appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act (for short, 'the Act'). The Commissioner has allowed the application filed by the legal representatives of the deceased workman. According to the applicants, the workman was employed by the first opposite party to load and unload goods in his lorry. It is their case that he developed chest pain inside the lorry and he died upon being taken to the hospital. 2. On the basis of the evidence before him, the Commissioner has found that loading and unloading rubbles in the lorry is an arduous job. It is also found that death was due to accident which has arisen in the course of employment. The Commissioner awarded a compensation of Rs.3,79,120/- with interest at 12%. Further more, the Commissioner also directed payment of interest, failing which penalty under Section 4A(3) (b) of the Act was directed to be imposed on the entire amount of compensation. MFA 92/2009 2 3. We heard learned counsel for the appellant. There is no appearance for the contesting respondents. 4. Learned counsel for the appellant would contend that there was no proof regarding employer-employee relationship and there is no pleadings or evidence connecting the death to any accident. The death, according to the learned counsel, is natural death. Learned counsel also challenged the finding regarding monthly income being fixed at Rs.4,000/-. Thereafter, it is contended that the Commissioner ought not have directed payment of interest from the date of accident. Finally, it is contended that the Commissioner has acted illegally in imposing penalty. 5. As far as the question relating to the employer- employee relationship, death being natural death, we would think that there is no basis for the said complaint. There is evidence given by the applicants in the form of AW1 and AW2 besides producing Ext.A1, of course, which is a newspaper report and Ext.A2, which is a referral letter of the doctor. It is a case where the employment is not disputed by the first MFA 92/2009 3 opposite party. AW2 is an eye witness. He was the cleaner of the lorry. It was categorically found that loading and unloading rubbles in the lorry is an arduous job. In such circumstances, it is a case where the employee died in the course of his employment and the nature of the job, apparently was a major contributory factor for his untimely death, as he was only 38 years at the time of death. 6. As far as monthly income is concerned, there is oral evidence. These are findings of fact. In such circumstances, we would think that there is no basis for challenging the findings. No substantial question of law is made out. The further question relates to interest. 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], MFA 92/2009 4 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 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.” MFA 92/2009 5 No doubt, it is pointed out that the said case 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 interalia held as follows : “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 MFA 92/2009 6 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. 7. 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)]. In the light of the said legal position, we do not find any merit in the contention of the appellant. 8. The last contention raised by the appellant relates to the imposition of penalty. It is held by the Apex Court in its decision reported in National Insurance Co.Ltd. v. Mubasir Ahamed and Another (2007(2) ACC 374) that it cannot be in the region of dispute that an insurer cannot be MFA 92/2009 7 made liable to pay penalty. Further more, learned counsel for the appellant is also justified in pointing out that penalty can be imposed only on finding that the ingredients in Section 4A(3) of the Act are satisfied. In this case, we notice that penalty is directed to be paid in case the amount is not deposited. The appellant has already challenged the proceedings also. In such circumstances, we feel that there is no scope for imposing penalty. We direct that the appellant will not be liable to pay penalty. In all other respects, we confirm the findings of the Commissioner. The appeal is partly allowed as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.