FA/3484/1998 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3484 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== NEW INDIA ASSURANCE CO.LTD. Versus JUNUS ISHAQ KUMBHAR AND ANOTHER ====================================== Appearance : MR SUNIL PARIKH for MR RAJNI H MEHTA for Appellant. MR MEHUL S SHAH for Respondent No.1. MR SURESH M SHAH for Respondent No.1. RULE SERVED for Respondent No.2. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/08/2008 ORAL JUDGMENT 1. This appeal is filed by the appellant against judgment and award dated 30-4-1998 passed by Commissioner for Workmen Compensation, Kutch at Bhuj in Workmen Compensation Application No.69 of 1996, FA/3484/1998 2/5 JUDGMENT whereby the claim application filed by the claimant was allowed. 2. The facts in brief, as emerging from record, are as under: 3. The claimant was working as a driver with respondent no.1 on monthly salary of Rs.900/- and over and above said amount, other allowances were paid on said amount. On 19-11-1987, when the claimant was on duty, while going from Kolhapur to Tharad, he with an accident. In the said accident, the claimant has received various injuries in his body and his right leg was amputated. Therefore, the claimant suffered permanent disability and he is not in a position to do any work. Since original respondent no.1 had not paid any amount towards compensation, notice under Section 10 of the Act was given to the appellant herein and, thereafter, an application was filed for compensation before Workmen Compensation Commissioner and prayed that since the insurance of the vehicle in question was taken from original respondent no.2, respondents are liable to pay amount of compensation jointly and severally. 4. Said claim was resisted by original respondent no.1 by filing reply at Exh.44, whereby allegations made in the claim application are denied by him. It is also denied that the claimant was earning Rs.900/- per month. It is also stated that the claimant is not entitled to any amount of penalty as well as interest. It is also stated that since insurance of the vehicle as well as driver and cleaner of the vehicle was taken from original respondent no.2, appellant herein, said respondent would be liable to pay amount of compensation. 5. Original respondent no.2 - insurance company has not filed any reply before Workmen Compensation Commissioner. FA/3484/1998 3/5 JUDGMENT 6. After considering the evidence on record and relevant documents on record, Workmen Compensation Commissioner fixed salary of the claimant at Rs.1,400/- per month and counting 60% from the said amount, Rs.840/- was considered as salary. In view of the age of the claimant, Workmen Compensation Commissioner held that multiplier of 219.95 is required to be applied. Accordingly, Workmen Compensation Commissioner awarded an amount of Rs.1,84,758/- and also awarded 50% penalty on the said amount. Orders regarding payment of interest and cost are also made by the impugned order. Being aggrieved by it, the appellant has filed present appeal. 7. Heard learned advocate, Mr.Sunil Parikh for the appellant and learned advocate, Mr.Shah for respondent no.1 – claimant. 8. Learned advocate for the appellant mainly contended that since accident has happened on 19th November 1987 and amendment in the Workmen Compensation Act has came into force from 1995, Workmen Compensation Commissioner has committed an error by awarding amount under the provisions of amended Act. He also submitted that interest cannot be awarded at the rate of 12% because the accident in question took place on 19th November, 1987 and at that point of time the interest payable was only 6%, but by subsequent amendment made with effect from 15.09.1995, the rate of interest came to be enhanced to 12%. Hence, enhanced rate cannot be awarded in a case where the accident took place earlier and the claim application was also filed earlier. He has also relied on decision of Division Bench of this Court rendered in Civil Application No.2169 of 2006 on 1-5-2004, wherein it is held as under in paragraphs 5 and 6: FA/3484/1998 4/5 JUDGMENT “5. As far as the dispute about the rate of interest is concerned, the controversy is now concluded by the decision dated 19.04.2006 of another Division Bench of this Court, wherein it is held that where the accident had taken place prior to the amendment made on 15.09.1995, the rate of interest would be 6% p.a. from the date of accident till 15.09.1995 and thereafter from 15.09.1995 till realisation of the awarded amount, the rate of interest would be 12%. 6. In view of the said decision, the award under appeal is modified to the extent that the rate of interest would be 6% for the period from 06.06.1986 till 14.09.1995 and for the period from 15..09.1995 till realisation of the awarded amount, the rate of interest shall be 12%.“ 8.1 It is submitted that, therefore, the impugned award is required to be modified and the amount of compensation is required to be awarded as per the provisions of unamended Act. No other contention is raised on behalf of the appellant. 9. Learned advocate for the respondent is not in a position to dispute aforesaid position. 10. Therefore, contention raised by the appellant is required to be accepted. Under the unamended Act, maximum Rs.1,000/- was required to be counted as salary for the claimant and 50% of the said amount was required to be deducted therefrom. Therefore, the claimant would be entitled to only Rs.500/- per month as salary. Since the claimant was 23 years of age at the time of accident, as per the schedule appended to the unamended Act, multiplier of 218.47 is required to be applied. Therefore, the claimant will be entitled to get Rs.500 X 218.47 = Rs.1,09,235/- as compensation. In view of above decision of Division Bench of this Court, the award under appeal is also modified to the FA/3484/1998 5/5 JUDGMENT extent that the rate of interest would be 6% for the period from 19.11.1987 till 14.09.1995 and for the period from 15.09.1995 to 9.7.1999 rate of interest shall be 12% on the amount deposited by the appellant. It is clarified that the amount of interest is required to be paid by the appellant herein. The balance amount from the deposited amount will be refunded to the appellant-insurance company. Rest of the award of the Workmen Compensation Commissioner will remain unchanged. 11. Accordingly, this appeal is allowed to the aforesaid extent with no order as to costs. (K.S.Jhaveri, J.) *malek