: 1 : 1792-11-fa=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1792 OF 2011 WITH CIVIL APPLICATION NO. 3624 OF 2010 The Oriental Insurance Co. Ltd. .. Appellant v/s. Fatimabai Lal Mohd. Khan & Ors. .. Respondents ......... Mr. Rajan Tripathi i/b Mr. A.S. Vidyarthi for the appellant Mrs. Smita Mane for respondents ......... CORAM : A.V. NIRGUDE, J DATE : 14th DECEMBER,2011. P.C. : 1. The appeal is taken up for hearing at admission stage by consent of the learned Counsel appearing for the parties. 2. The appeal is filed challenging the Judgment and Award dated 15th April, 2010 passed by the learned Commissioner for Workmen’s Compensation, Mumbai in Application (WCA) No.224/C­47 of 1998. It : 2 : 1792-11-fa=.sxw was originally a claim arising from injury caused to workman Lal Mohammed Khan, of the respondent no.9. During the pendency of the claim petition, original claimant Lal Mohammed Khan died and the respondent nos. 1 to 8 are added as his legal representatives. The facts leading to this litigation in short can be stated as under. 3. Lal Mohammed Khan was in employment of respondent no.9 as a driver. His monthly salary at the relevant time was Rs.2,880/­ per month. On 18th June, 1997 while he was driving a Truck, he met with an accident and sustained injury to his leg. During the medical treatment, his leg below knew was amputed. At that time, he was 33 years old. In view of this, the original claimant moved an application for compensation. As said above, during the pendency of the case, he died. The learned Commissioner held in favour of the original claimant that the accident occurred while he was performing his duty and that due to amputation of his leg, he suffered permanent total disablement. He then utilised the provisions of Section 4 of the Workmen’s Compensation Act, 1923 as amended after 1995 and then calculated the compensation amount. Amendment in Section 4 effected in the year 2000. He held that he was required to take into account the entire salary of 2,880/­ as the basis for : 3 : 1792-11-fa=.sxw calculation and held that the original claimant was entitled to a sum of Rs. 2,92,792/­ as compensation. The substantial question of law arising in this case is whether the provisions of Section 4 (as amended in 2000) would apply to the present case or whether the provisions of Section 4 as was prevailing at the time of accident would apply to this case? The learned Counsel appearing for the appellant raised only one point to the appeal. He said that since the accident took place prior to year 2000, the amended provisions of Section 4 will not apply to this case when the accident took place in 1997, the provisions of Section 4 read as under. “4. Amount of compensation. (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:— (a) Where death results from the injury :­ an amount equal to [forty per cent.] of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of [fifty thousand rupees],whichever is more; (b) Where permanent total disablement results from the injury :­ an amount equal to [fifty per cent.] of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of [sixty thousand rupees], whichever is more; : 4 : 1792-11-fa=.sxw Explanation I.—For the purposes of clause (a) and clause (b) “relevant factor” in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due. Explanation II.—Where the monthly wages of a workman exceed [two thousand rupees], his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be [two thousand rupees] only; (c)Where permanent partial disablement result from the injury:­ (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury; Explanation I.—Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. Explanation II.—In assessing the loss of earning capacity for the purpose of sub­clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in : 5 : 1792-11-fa=.sxw relation to different injuries specified in Schedule I; (d) Where temporary disablement whether total or partial results from the injury : ­ a half monthly payment of the sum equivalent to twenty­ five per cent of mostly wages of the workman, to be paid in accordance with the provisions of sub­section (2). (1A) Notwithstanding anything contained in sub­section (1), while fixing the amount of compensation payable to a workman is respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the workman in accordance with the law of that country.] (2) The half­monthly payment referred to in clause (d) of sub­ section (1) shall be payable on the sixteenth day — (i) from the date of disablement where such disablement lasts for a period of twenty­eight days or more, or (ii) after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty­eight days; and thereafter half­monthly during the disablement or during a period of five years, whichever period is shorter: Provided that— (a) there shall be deducted from any lump sum or half­monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half­monthly payment, as the case may be; and (b) no half­monthly payment shall in any case exceed the amount, if any by which half the amount of the monthly wages : 6 : 1792-11-fa=.sxw of the workman before the accident exceeds half the amount of such wages which he is earning after the accident. Explanation.—Any payment or allowance which the workman has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso. (3) On the ceasing of the disablement before the date on which any half­monthly payment falls due there shall be payable in respect of that half­month a sum proportionate to the duration of the disablement in that half­month.] (4) If the injury of the workman results in his death, the employer shall, in addition to the compensation under sub­ section (1), deposit with the Commissioner a sum of [two thousand and five hundred rupees] for payment of the same to the eldest surviving dependant of the workman towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure.]” 4. The learned Counsel appearing for the appellant asserted that the learned Commissioner erred in applying the amended provisions of Section 4 for calculating the amount of compensation. He placed reliance on the judgment of Supreme Court in the case of Kerala State Electricity Board Vs Valsala K. 2000 ACJ 5. Indeed the Supreme Court in this judgment clearly held that the amendment in Section 4 and Section 4A of the Act has retrospective application. They would not be applied to the cases in which accidents occurred prior to date of amendment. Applying this law, : 7 : 1792-11-fa=.sxw the calculation made by the learned Commissioner requires correction. While calculating the compensation, the learned Commissioner, as said above, used the entire salary of Rs. 2,880/­ but in view of the previous position of Section 4 he ought to have used a sum of Rs.2000/­ only for calculating the compensation. If one replaces the sum of Rs.2,880/­ with Rs.2,000/­, the amount of compensation would come to Rs.2,03,328/­. The appeal should therefore partly succeed. The appeal is allowed. The impugned order stands corrected as under. ORDER (i) The opponent nos. 1 and 2 being joint and severally liable are directed to deposit an amount of Rs.2,03,328/­ for being paid to the applicant with interest thereon at the rate of 12% p.a. One month after the date of adjudication till realization. (ii) The appellant shall deposit the entire award amount in the lower Court within 4 weeks from today. (iii) There shall be no order as to costs. (iv)In view of this Civil Application does not survive and is disposed of accordingly. : 8 : 1792-11-fa=.sxw (v)In view of the assistance rendered by learned Counsel Smt. Mane, appointed as Amicus Curie, she shall be paid Rs.2,500/­ as fees. (A.V. NIRGUDE, J.)