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 18TH AUGUST 2011 / 27TH SRAVANA 1933 MFA.No. 69 of 2008() -------------------- WCC.330/2000 of COMMMISSIONER FOR WORKMEN'S COMPENSATION & DEPUTY LABOUR COMMISSIONER, THRISSUR .................... APPELLANT(S): ------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED PALAKKAD NOW REPRESENTED BY THE MANAGER, REGIONAL OFFICE, M.G. ROAD,KOCHI-11. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S): --------------- MANIKANDAN, S/O. KUMARAN, THANNIRAMKODI HOUSE, AMBALAVATTOM P.O.,PANAMANNA, PALAKKAD DISTRICT. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. No.69 of 2008 ----------------------------------------------- Dated 18th 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. It challenges the order of the Commissioner by which the Commissioner awarded Rs.1,84,758/- with 12% interest from 25.10.2000, which was the date of accident. 2. The claimant was a driver in an autorikshaw owned by the first opposite party. The injuries suffered by him, as noted in the order and found in Ext.A6 disability certificate issued by AW2 medical practitioner are as follows : “(1) Adherent irregular scar over ® forearm dorsum with tenderness over ® radium and ulna. (2) Partial ankulosis of ® forearm, with limitation of movement from full pronation to 10 degree supination. (3) Partial ankylosis of ® wrist with an arc of movement from 20 degree dorsiflexion to 180 degree lower and no palmar flexion. (4) Weakness ® hand grip with partial ankylosis of MCP joints of ® index middle and ring fingers with flexion from 180 degree to 25 degree. (5) Sensory blunting over dorsum of ® hand radial side MFA 69/2008 2 with evidence of ® radial nerve injury (cutaneous branch). (6) Partial ankylosis of ® elbow with an arc of flexion from 140 degree to 75 degree with fixed flexion deformity of elbow by 40 degree.” 3. The doctor has assessed the permanent physical disability at 25% as per Mc Bride Schedule and loss of earning capacity at 75%. The appellant filed an application for referring the matter to the Medical Board. Counter affidavit was filed and it is stated that the said application was rejected. 4. We heard learned senior counsel for the appellant. Though served, there is no appearance for the respondent. 5. Learned senior counsel for the appellant would contend that the Commissioner has acted illegally in rejecting the application for referring the matter to the Medical Board. He would submit that having regard to the injuries, there is no basis for fixing the loss of earning capacity at 70%. He would further contend that the Commissioner has acted illegally in ordering interest from the date of the accident. 6. As far as first question is concerned, we see there is merit in the contention of the appellant. The appellant did MFA 69/2008 3 file a petition for referring the matter to the Medical Board. This is a case where the medical practitioner has assessed permanent disability at 25% and however, fixed the loss of earning capacity at 75%. We notice that there is no appearance for the applicant. Having regard to the nature of the disabilities which have been noted by an Assistant Professor -Orthopaedic, Medical College, Thrissur and the nature of the disability which is incurred, we would think that the interests of justice would be sub-served, if the loss of earning capacity is fixed at 50%, instead of 70%. 7. 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 two judges benches. No doubt, they MFA 69/2008 4 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.” 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 MFA 69/2008 5 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.” However, it is pointed out that the matter is pending in appeal before the Supreme Court against the aforesaid judgment of MFA 69/2008 6 the Division Bench of this Court. 8. 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. 9. Accordingly, the order of the Commissioner is modified and the appeal is partly allowed. We order that the appellant will be liable to pay a sum of Rs.1,31,970/- with interest at 12% as ordered by the Commissioner. The appellant will be entitled to withdraw the amount as deposited in excess of what is ordered to pay as per this judgment. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.