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. 189 of 2006 ------------------------------ WCC.261/2003 of THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., KUNNAMKULAM NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): APPLICANT AND 1ST OPPOSITE PARTY: ---------------------------------------------------------------------------------- 1. P.K. SATHEESHKUMAR, S/O.P.P. KUTTAN, PANIKKASSERY HOUSE, CHEMMANNUR, THRISSUR. 2. PRASEETHA, D/O. VENUGOPALAN, PANIKKASSERY HOUSE, ARTHAT, KUNNAMKULAM, THRISSUR. R1 BY ADV. SRI.JIJO PAUL 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.189 of 2006-C ----------------------------------------- Dated, this the 19th day of August, 2011 J U D G M E N T K.M.Joseph, J. Appellant is the 2nd opposite party in a claim petition under Section 22 of the Workmen's compensation Act, 1923. Alleging fracture of left ulna and contusion and sprain of right leg, the Ist respondent/applicant sought compensation. The Commissioner awarded compensation in a sum of Rs.94,377/- with interest at 12% per annum from 22.1.2003 till the date of deposit. It is submitted that the Commissioner has acted illegally. It is submitted by the learned counsel for the appellant that this is a case where the claimant was actually the husband of the Ist opposite party. Yet, the Commissioner has accepted the case of the applicant that he is the employee of the Ist opposite party. It is contended that the Commissioner has taken loss of earning capacity at 20% which is unsustainable. It is further submitted that interest ought not have been ordered to be paid from the date of accident. 2. We heard the learned senior counsel for the MFA 189/2006 -2- appellant Sri.Mathews Jacob and the learned counsel for the claimant. Of course, the finding that the claimant is the employee of the Ist opposite party is apparently a question of fact and no substantial question of law arises and the learned senior counsel does not seriously dispute that it is a question of fact. 3. As far as loss of earning capacity is concerned, there is some merit in the complaint. Following are the disabilities noted in Ext.A5 which is the disability certificate issued by the Medical Practitioner who was examined as Aw3. “1. His left ulna fracture has united. 2. He has mild stiffness of the left wrist with loss of last 10 dorsiflexion and 10 phalmarflexion. 3. He has weakness of grip of the left hand begane grade. 4. He has pain in the left wrist on rotations and on lifting and carrying loads. 5. He has terminal painful limitasion of last few degree of invertion ans eversion of the right ankle. 6. He has pain in the right ankle on loading the left leg and as walking.” The Medical Practitioner has assessed the disability at 8% and the loss of earning capacity as Lorry Driver is assessed as 25%. We find that there is considerable merit in contention of the learned counsel for the appellant. As held by the Full Bench in Vanajakshan v. Joseph (2003 (2) KLT 462) the result of injury must be in relation to loss of earning capacity in respect of all work MFA 189/2006 -3- he could do at the time of accident. However, the loss of earning capacity at 25% assessed by the Medical Practitioner is in his capacity as Lorry Driver. We further notice that, in fact, the appellant filed petition to refer the claimant to a Medical Board. Counter affidavit is filed in that petition and all that is stated is that after hearing both sides in detail the loss of earning capacity is reduced and decided as 20% considering all aspects of medical evidence and nature of job. 4. After hearing the learned counsel, we would think that percentage of loss of earning capacity can be fixed at 15% instead of 20%. If that be so, the amount due would be Rs.70,782.66 which is rounded off to Rs.70,800/- (Rupees seventy thousand and eight hundred only) in place of Rs.94,377. 5. Learned senior 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], 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 MFA 189/2006 -4- 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.” 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 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 MFA 189/2006 -5- 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 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 and we reject the contention. Accordingly, we partly allow the appeal as above. We MFA 189/2006 -6- also make it clear that any amount deposited by the appellant in excess of what the appellant is liable to deposit shall be released to the appellant. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS