1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. FAO(WCA) NO.209 of 2005 with Cross-Objections No.88 of 2007 Date of Decision: 14 .5.2009 The New India Assurance Company …Appellant Versus Dev Raj and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? No For the Appellant : Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate. For the respondents: Mr. G.R. Palsra, Advocate, for respondent No.1. Mr. Romesh Verma, Advocate, for respondent No.2. Kuldip Singh, J(Oral) This appeal has been directed against the order dated 21.2.2005 passed by Commissioner under Workmen’s Compensation Act, 1923, (Sub Divisional Magistrate) Ghumarwin, District Bilaspur in Case No.2/2004, whereby the Commissioner has awarded Rs.2,44,660/- compensation along with 12% simple interest with further direction that the insurer shall pay the interest liability from 5.11.2003 till the amount is deposited, remaining interest from 4.9.2001 to 5.11.2003 shall be borne by the employer. __________________________ Whether reporters of Local Papers may be allowed to see the Judgment?Yes 2 2. The brief facts are that Dev Raj had filed petition claiming Rs.5,99,000/- compensation along with interest from the date of accident from respondents No.2 and 3 and appellant on the grounds that he was employed as Generator operator, Boiler operator cum electrician since 21.4.1991 at Shingar Regency Hotel, Manali and during the course of his employment he met with an accident on 4.9.2001 at 6 p.m. while he was working in the boiler room. He got severe injuries due to electrocution and suffered 75% disability. He was 30 years of age at the time of accident and was earning Rs.4,000/- per month from salary and Rs.1500- 2000 approximately per month on account of overtime. On these grounds he filed the petition. 3. The respondents No.2 and 3 had contested the petition, they admitted the employment of injured on Rs.2990/- salary per month. It was pleaded that appellant-insurer is liable to indemnify the compensation. 4. The appellant contested the petition and denied the claim of the injured. In rejoinder the injured reiterated his case. The Commissioner allowed the petition on 21.2.2005, as noticed above, hence this appeal by the insurer. The respondents No.2 and 3 have accepted the award, they have not filed any appeal or cross-objections but injured Dev Raj has filed cross-objections, claiming Rs.5,99,152/- compensation along with interest from the date of accident. 5. The appeal has been admitted on the following substantial questions of law:- 1. Whether on a proper construction of the provisions of Workmen Compensation Act and the policy of Insurance as also the judgment of the Hon’ble Supreme Court in 2004 A.C.J. 452 P.J. 3 Narayan versus Union of India, the Insurance Co. could be burdened to pay the liability of interest? 2. Whether the findings of the Commissioner are perverse, based on misreading of documentary and oral evidence and the provisions of the Workmen Compensation Act in awarding compensation of Rs.2,44,660/- when treating the injuries as permanent total disablement only 60% of the monthly wages multiplied by the relevant factor or an amount of Rs.90.000 whichever was higher could have been awarded under section 4 of the Workmen Compensation Act ? 6. I have heard Mr. K.D. Sood, Advocate alongwith Mr. Sanjeev Sood, Advocate, learned counsel for the appellant, Mr. G.R. Palsra, Advocate, learned counsel for respondent 1-cross-objectors and Mr. Romesh Verma, Advocate, learned counsel for respondent No.2 and have also gone through the record. On behalf of the appellant it has been submitted that in the policy there is exclusion clause for payment of interest and the Commissioner has erred in burdening the appellant for payment of interest. It has also been submitted that compensation amounting to Rs.2,44,660/- has been assessed on the higher side. The learned counsel for the respondent No.1- cross-objectors has supported the impugned order and has stated that in the facts and circumstances of the case the Commissioner has awarded just compensation. He has not pressed the cross-objections at the time of hearing. The learned counsel for the respondent No.2 has supported the impugned order. 7. The learned counsel for the appellant has referred to photocopy of Insurance Policy at page 27 of the Commissioner file and on that basis he has submitted that there is an exclusion clause for payment of interest. In other words he has submitted that in view of policy at page 27 of 4 the Commissioner file the appellant is not liable to pay interest. The learned counsel for respondent No.2 has drawn my attention to policy Ex.RW-1/A at page 30 of the Commissioner file. In policy Ex.RW-1/A there is no exclusion of payment of interest by the insurer. The Policy at page 27 of the Commissioner file has not been proved, therefore, it cannot be looked into. In view of the fact that there is no exclusion clause in policy Ex.RW-1/A, the insurer is liable to pay interest as per the impugned award. P.J. Narayan vs. Union of India A.C.J. 2004, 452 referred in substantial question of Law No.1 is not applicable in the facts and circumstances of the present case. The substantial question of Law No.1 is decided against the appellant. 8. In so far substantial question No.2 is concerned, the learned counsel for the appellant has submitted that compensation of Rs.2,44,660/- has been calculated on the higher side. He has not disputed the wages, disability and relevant factor applied by the Commissioner. According to the Commissioner the amount comes to Rs.2,44,660/-. There appears to be some calculation error, on the basis of permissible wages Rs.2000, percentage of disability and factor applied by Commissioner amount comes to Rs.2,44,620/- instead of Rs.2,44,660/- . The Commissioner has thus awarded Rs.40/- in excess to which the respondent No.1 is entitled. The difference of Rs.40/- is very small and therefore, I am not inclined to interfere. In these circumstances, substantial question of Law No.2 is decided against the appellant. The learned counsel for the respondent No.1/cross-objector has not pressed the cross-objections. In these circumstances, FAO No.209 of 2005 and C.O. No.88 of 2007 are dismissed with no order as to costs. ( Kuldip Singh) Judge May 14, 2009(sks) 5