IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 MFA.No. 247 of 2009() -------------------------------- WCC.184/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- THE ORIENTAL INSURANCE COMPANY LTD., CHALAKUDY, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE MR.P.JACOB MATHEW RESPONDENT(S): APPLICANTS & 1ST OPPOSITE PARTY -------------------------- 1. PAUL, S/O. PALU, KANJOOTHARA HOUSE, MALA PALLIPURAM DESOM, POYYA VILLAGE, MALA PALLIPURAM P.O., MUKUNDAPURAM TALUK. 2. K.P.JAISON, KANJOOTHARA HOUSE, MALA PALLIPURAM P.O. R1 BY ADV. MR.P.V.BABY THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A 2851/2009 IN MFA. NO. 247/2009 DISMISSED 07/12/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 247 OF 2009 = = = = = = = = = = = = = = = Dated this the 7th day of December, 2009. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.184/03. The applicant before the Court below sustained injuries while he was riding a motor bike and the Compensation Commissioner found him to be an employee of the owner of the vehicle covered by the policy, fixed the loss of earning capacity at 22% and awarded him a compensation of Rs.74,012/- and directed the insurance company to pay it along with 12% interest on the said sum from the date of accident. It is against that decision the insurance company has come up in appeal challenging the employer - employee relationship, the quantum, the procedure adopted by he Compensation Commissioner as well as the interest. They had also raised three substantial questions of law as follows. M.F.A.. 247 OF 2009 -:2:- “(1) Whether the Commissioner is justified in finding that the applicant was employed as a driver of the motorcycle owned by the 2nd respondent herein who is also his brother? (2) Whether the Commissioner is justified in fixing 22% loss of earning capacity arbitrarily for comparatively minor injuries sustained by the applicant and also in dismissing the application filed by the appellant to refer the applicant to a Medical Board? and (3) Whether the Commissioner is justified in granting 12% interest from the date of accident if the compensation is not paid within 30 days from the date of receipt of the order?” Points No.1 and 2: 2. These points dealt with the question of employer- employee relationship as well as the percentage of disability. The contention of the injured is that he was working under M.F.A.. 247 OF 2009 -:3:- the owner of the motorbike as a construction worker as well and while he was riding the motorbike of the employer in connection with the employment he sustained injuries and therefore claimed compensation. The owner while claiming own damages to his vehicle has also incorporated the same plea and he has admitted that the injured was riding the bike as an employee of him for his purpose. Just because he is a construction worker and he had ridden the motorcycle it cannot be said that he is not an employee under the employer. There was a case wherein field supervisor was injured in an accident while riding the motorbike of the employer. The matter came up for consideration before a Division Bench of this Court in Benz Authomobiles Ltd. v. Thomas (2008 (3) KLT 1015). A Division Bench of this Court held that one need not be a full time driver but if he has driven the vehicle during the course of employment he is liable to be covered. Similar is a situation here and therefore M.F.A.. 247 OF 2009 -:4:- by virtue of the contention raised by the employer and the evidence tendered by the employee the employer-employee relationship is established and it has to be found that the employee has sustained injuries while riding the vehicle during the course of his employment. 3. The next question is the disability. The way in which the disability has been dealt with is not very satisfactory. The claimant had sustained a fracture on the tibia and a doctor has certified his permanent disability at 15% and loss of earning capacity at 32% in spite of the doctor's evidence the Compensation Commissioner without reasons took the loss of earning capacity at 22% and decided the compensation. I am conscious of the fact that by virtue of the decision of this Court in Vanajakshan v. Joseph (2003 (2) KLT 462) the percentage of loss of earning capacity has to be worked out taking into consideration the whole work which the person was capable of doing and not M.F.A.. 247 OF 2009 -:5:- on the basis of the work which he was doing. The matter has to be subjected to be examined in that angle and when a petition was filed for referring the matter to a Medical Board that was also disallowed. Really the proper course is to send back the matter which will unnecessarily delay the whole thing and therefore after discussing with the learned lawyers at the Bar I have decided to fix the loss of earning capacity as well at 15% considering the nature of fracture and the decide the compensation. When 15% is taken as the loss of earning capacity the compensation to be worked out is 3000 x 60/100 x 186.90 x 15/100 = Rs.50,463/-. Point No.3: 4. This point deals with the interest. It is argued that interest is to be paid only from the date of award and not earlier. The matter has been considered by a Division Bench of this Court and it has also been relied upon by a learned Judge of the Himachal Pradesh High Court in the M.F.A.. 247 OF 2009 -:6:- decision reported in New India Assurance Company v. Budh Ram and another(2009(4) TAC 614)(HP) and reliance has been placed on the Division Bench of this Court reported in National Insurance Company Ltd. v. Rekha 2008 ACJ 886. In the above said case the Division Bench of this Court considered the question as well relied upon decision of the Constitutional Bench of the Hon'ble Supreme Court in the decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222) and held that the interest should be given from the date of accident. A similar view has been followed in the decision reported in Himachal Pradesh High Court which is extracted as follows. ''The Constitutional Bench had already decided the question as to when compensation falls due in terms of the Workmen's Compensation Act, 1923. Unfortunately, this decision of the Constitution Bench was not brought to the notice of the Apex Court while deciding M.F.A.. 247 OF 2009 -:7:- National Insurance Company Ltd. v. Mubasir Ahmed and another, 2007 ACJ 845: 2007(2) TAC 3. Therefore, I feel that this Court is bound by the judgment rendered by the Constitutional Bench of the Apex Court and I accordingly hold that the compensation falls due on the date when the accident takes place and in case the same is not deposited within thirty days, the workman is entitled to claim interest at the rate of 12% per annum without having to show that delay in depositing the compensation was attributable to the employer. While taking this view, I am supported by a Division Bench judgment of the Kerala High Court reported in National Insurance Company Ltd. V. Rekha, 2008 ACJ 886.” 5. So in the light of the same it has to be held that the interest has to be given at the rate of 12% from the date of accident. Therefore the appeal is partly allowed and the M.F.A.. 247 OF 2009 -:8:- amount is fixed as Rs.50,463/- with 12% interest from the date of accident till deposit. If excess amount is deposited let it be reimbursed to the insurance company and the claimant be disbursed the amount which he is entitled to as per the award. M.N. KRISHNAN, JUDGE. ul/-