IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 MFA.No. 172 of 2007 ---------------------------- WCC.72/2001 of THE COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER), ERNAKULAM. .................... APPELLANT(S): THIRD OPPOSITE PARTY: ----------------------------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., MEDICAL MISSION JUNCTION, KOLENCHERRY. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANTS AND OPPOSITE PARTIES 1 & 2: ----------------------------------------------------------------------------------------- 1. VARGHESE, S/O.MATHAI, RESIDING AT PULLANTHIKKATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM. 2. MARIAMMA, W/O.VARGHESE -DO- 3. BABU @ ANTONY, S/O.CHACKO, KULANGARA HOUSE,GRAHAM'S LAND ROAD, MUNNAR. 4. C.K.THANKAPPAN, CHIRAPPATTU HOUSE, PEZHAKKAPPILLY, MUVATTUPUZHA. R1 & R2 BY ADV. SRI.K.JAJU BABU R3 BY ADV. SRI.N.F.JAMES SRI.TOJAN J. VATHIKULAM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- M.F.A.(WCC) No.172 of 2007 ----------------------------------------- Dated, this the 23rd day of August, 2011 J U D G M E N T K.M.Joseph, J. Appellant challenges the order the Commissioner for Workmen's Compensation in WCC No.72/2001. Appellant is the 3rd opposite party in the proceedings under Section 22 of the Workmen's Compensation Act. 2. We heard the learned counsel for the appellant and learned counsel for the claimants. 3. Learned counsel for the appellant purports to raise two substantial questions. Firstly it is contended that the calculation of wages at Rs.4,000/- per month is without any basis and there is no evidence and the decision is perverse. Secondly, it is contended that interest should not have been ordered from the date of accident. 4. Learned counsel for the claimants supported the impugned order. 5. As far as an appeal under Section 30 of the Workmen's Compensation Act is concerned it can be prosecuted only when a substantial question of law is made out. It is true that MFA 172/2007 -2- in this case the parents of the deceased set up a claim that the deceased was driver of a lorry and was drawing Rs.5,000/- per month as wages. It is disputed by his own employer, besides, of course, the appellant/insurer. Oral evidence is given that the wages was Rs.5,000/-. The Commissioner took the view that there is no documentary evidence. It is noted that the deceased was professionally a lorry driver. Oral evidence of Aw1 remained unchallenged. It is stated that there is no contra evidence either by the first opposite party or by the appellant. The Commissioner actually accepted the wages at Rs.5,000/-. But, noting that actual wages can be taken only as Rs.4,000/- the Commissioner fixed wages at Rs.4,000/- and accordingly compensation was granted. We find that this is essentially a question of fact. It may be true that there was no documentary evidence. As found by the Commissioner, the deceased workman was a professional driver of a lorry. The first opposite party has not disputed the employment. That means that he was employed as a professional lorry driver. We do not think that it can be characterized as a perverse decision. There was evidence. Adequacy or quantum of evidence can not be essentially gone into by us in this jurisdiction. Accordingly, we repel the said contention. 6. Thereafter, learned counsel would submit that the MFA 172/2007 -3- 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. 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 MFA 172/2007 -4- 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 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.” MFA 172/2007 -5- 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. We also notice that this is a case of death and hence we dismiss the appeal. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS