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. 204 of 2009 ---------------------------- WCC.39/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION (DEPUTY LABOUR COMMISSIONER) ERNAKULAM .................... APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------- M/S. NATIONAL INSURANCE CO. LTD., REP. BY ITS REGIONAL MANAGER, MUTHOOT TOWERS M.G.ROAD, KOCHI-35. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY: ---------------------------------------------------------------------------------- 1. SRI. NIZAR.I, S/O. ISMAILKUNJU, VADAKKARA PEDIKAYIL HOUSE, SHASTRIYA JUNCTION KUNNIKODE POST, KOLLAM. 2. SRI. J.HARRIS S/O. JAMAL KUNJU, RUBINZA MANZIL, 14/1790, CHULLICKAL, KOCHI-5. R1 BY ADV. SRI.P.RAMAKRISHNAN SRI.T.C.KRISHNA 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. ----------------------------------------- MFA (WCC) No.204 of 2009 ----------------------------------------- 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 filed under Section 22 of the Workmen's Compensation Act, 1923. It is the insurer. By the impugned order, the Commissioner has awarded a sum of Rs.92,227/- with 12% simple interest from the date of accident till the date of payment. 2. We heard the learned counsel for the appellant and the learned counsel for the claimant. Learned counsel for the appellant would contend that there is no evidence connecting the injuries to the use of motor vehicle. He would next contend that the Commissioner has acted illegally in ordering interest from the date of accident. 3. Per contra, the learned counsel for the claimant supported the order. 4. As far as the question of there being no injury attributable to any motor vehicle, we notice that there was evidence of claimant as Aw1. That has been considered by the MFA 204/2009 -2- Commissioner. According to the claimant, he was a cleaner of lorry and it was while working as such his right hand was crushed in between the tyre of the vehicle and a piece of wood and due to the same his right thumb was amputated on the middle. Accordingly, it is, the Commissioner noting that it is a Scheduled injury as per which 20% loss of earning capacity is provided in the Schedule to the Act, compensation was worked out. We find that it is essentially a question of fact and we are not inclined to interfere with the same in exercise of the appellate jurisdiction which can be exercised only upon existence of substantial question of law. We see that no substantial question of law is made out. 5. Learned 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 MFA 204/2009 -3- [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 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 inter alia held as follows : MFA 204/2009 -4- “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 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. MFA 204/2009 -5- 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. Accordingly, the appeal fails and it is dismissed. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS