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. 48 of 2008() -------------------- WCC.384/2002 of Commissioner for Workmen's Compensation THRISSUR .................... APPELLANT(S): -------------- THE NATIONAL INSURANCE CO. LTD., THRISSUR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): --------------- 1. P.K. RAPHEAL, S/O. KOCHAPPAN, PAYYAPPILLY HOUSE, P.O. CHIYYARAM, THRISSUR DIST. 2. P.P. MUHAMMED, VARANDAKAYIL HOUSE, P.O. MULLASSERY, THRISSUR DISTRICT. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 SRI.G.SREEKUMAR (CHELUR) FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.8.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.48 of 2008 ----------------------------------------------- Dated 19th August, 2011. J U D G M E N T Joseph, J. Appellant is the second opposite party/insurer in a proceedings under Section 22 of the Workmen's Compensation Act. The Commissioner has awarded a sum of Rs.1,98,904/-. The wages was found to be Rs.1,800/- per month. The loss of earning capacity was fixed at 60% and it was accordingly that the amount of Rs.1,98,904/- was awarded. The appellant was saddled with liability to pay interest at the rate of 12% from the date of the accident till the date of deposit. 2. We heard learned counsel for the appellant and learned counsel for the claimant. Two contentions are pressed before us. Firstly, it is contended that the Commissioner acted illegally in reckoning the loss of earning capacity as 60%. It is pointed out that this is a case where the appellant had filed a petition for referring the matter to the Medical Board. A counter was filed and it is stated that after hearing the arguments, the percentage of loss of earning capacity is reduced and fixed at 60%. It is contended that this procedure MFA 48/08 2 is impermissible. Secondly, it is contended that it is illegal to saddle the appellant with liability to pay interest from the date of the accident. 3. Learned counsel for the respondent/claimant supported the order. He would point out that the injuries were very serious. Ext.A4 is the disability certificate issued by the medical practitioner. He was also examined as AW2. In the medical certificate, the following injuries are noted : (1) His ® Transverse process fracture has not united. (2) The ® sacral fracture has malunited. (3) The (L) Superior and inferior public rami fractures have malunited. (4) He has stiffness of the spine with paraspinalspasm with loss of flexion and extension. Only 20o flexion is possible. (5) He has stiffness of (L) hip joint flexion is possible from 45o to 180o line. (6) Abductional adduction 23o to 15o. (7) He has 2 cm. startening of the ® lower limb. (8) He has difficulty in sitting and squatting and bending forwards. (a) He has pain in the (L) hip, ® sacral area and loss bar spine on attempted movements. MFA 48/08 3 Permanent loss of earning capacity is assessed as 70%.” 4. After hearing the learned counsel for the parties and having regard to the nature of the injuries, we can fix the loss of earning capacity at 50%, instead of 60%. It is so ordered. 5. Learned counsel for the appellant 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], 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. MFA 48/08 4 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.” 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 : MFA 48/08 5 “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 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 MFA 48/08 6 before the Supreme Court against the aforesaid judgment 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)]. In the light of the said legal position, we do not find any merit in the contention of the appellant. 7. Resultantly, we pass the following order : The appellant will be liable to pay a sum of Rs.1,65,753/- with interest at 12% as ordered from the date of the accident. The order of the Commissioner will stand modified and the appeal is allowed as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.