Allahabad High Court
M/S B.S.M. Petro Chemicals (Pvt.) ... vs Gajendra on 11 August, 2011
Bench: Satya Poot Mehrotra, Yogesh Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- FIRST APPEAL FROM ORDER No. - 2502 of 2011
Petitioner :- M/S B.S.M. Petro Chemicals (Pvt.) Ltd.
Respondent :- Gajendra
Petitioner Counsel :- Vivek Saran
Hon'ble Satya Poot Mehrotra,J.
Hon'ble Yogesh Chandra Gupta,J.
Order on Appeal
It is submitted by Shri Vivek Saran, learned counsel for the appellant, that as per the Medical Certificate brought on record before the Workmen's Compensation Commissioner, the claimant-respondent sustained injuries under Non-Scheduled Category, and the extent of disability was about 60%. The Medical Certificate, however, stated that it was not possible to assess the loss of earning capacity as a result of disability sustained by the claimant-respondent. It is submitted that the Workmen's Compensation Commissioner failed to appreciate the distinction between the extent of disability and the extent of loss of earning capacity on account of such disability, and assessed the compensation to be awarded to the claimant-respondent assuming the loss of earning capacity as 60% on the basis of the extent of disability as mentioned in the Medical Certificate. Sri Vivek Saran, learned counsel for the appellant, refers to the provisions contained in Item (ii) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923, read with Explanation II to the said clause (c) and submits that in view of the said provisions, it is necessary that there should be assessment of loss of earning capacity by a qualified Medical Practitioner. No such assessment having been done in the present case, the submission proceeds, the Workmen's Compensation Commissioner erred in law in passing the impugned Judgment and Order dated 21st April, 2011.
It is further submitted by Sri Vivek Saran, learned counsel for the appellant, that as per the provisions contained in sub-section (3) of Section 4A of the Workmen's Compensation Act, 1923, interest may be awarded in case there is default on the part of the employer in paying the compensation due within one month from 'the date it fell due.' The words 'the date it fell due', the submission proceeds, have been interpreted by the Supreme Court as meaning the date on which the compensation is quantified as a result of adjudication by the Workmen's Compensation Commissioner, i.e., the date of the Order passed by the Workmen's Compensation Commissioner. In the present case, interest has been awarded with effect from the date of expiry of 30 days from the date of accident, which is contrary to the provisions contained in sub-section (3) of Section 4A of the Workmen's Compensation Act, 1923.
Sri Vivek Saran, learned counsel for the appellant, has placed reliance on a decision of the Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Mohd. Nasir and Another, (2009) 6 SCC 280 (paragraph nos. 27 and 50).
Having considered the submissions made by Sri Vivek Saran, learned counsel for the appellant, we are prima-facie satisfied that the following Substantial Questions of Law are involved in the present Appeal:
(1) Whether on the facts and in the circumstances of the case and keeping in view the fact that the Medical Certificate stated that it was not possible to assess the extent of loss of earning capacity and also keeping in view the provisions contained in Item (ii) of clause (c) of sub-section (1) of Section 4 of the Workmen's Compensation Act, 1923 read with Explanation II to the said clause (c), the Workmen's Compensation Commissioner was justified in law in awarding compensation on the assumption that the extent of loss of earning capacity was 60% on the basis of disability sustained by the claimant-respondent as per the Medical Certificate?
(2) Whether on the facts and in the circumstances of the case and keeping in view the provisions contained in sub-section (3) of Section 4A of the Workmen's Compensation Act, 1923, the Workmen's Compensation Commissioner was justified in law in awarding compensation with effect from the date of expiry of 30 days from the date of accident?
Admit.
Issue notice.
Notice will be issued to the respondent by Registered Post A.D. fixing the next date fixed in the matter.
Order on Stay Application
Issue notice.
Notice will be issued to the respondent by Registered Post A.D. fixing the next date fixed in the matter.
Requisite steps will be taken within three weeks.
Heard on the question of grant of interim relief.
The amount awarded under the impugned Judgment and Order dated 21st April, 2011 has already been deposited by the appellant, as is evident from the Certificate filed with the Memorandum of Appeal.
Having regard to the facts and circumstances of the case and having considered the submissions made by Shri Vivek Saran, learned counsel for the appellant, it is directed that the operation of the impugned Judgment and Order dated 21st April, 2011 will remain stayed until further orders of the Court subject to the following terms and conditions:
(1) 50% of the amount deposited, as mentioned above, will be paid to the claimant-respondent without furnishing any security.
(2) Balance 50% of the amount of the deposit, as mentioned above, will be invested in maximum interest-bearing Fixed Deposit in a Nationalized Bank, renewable from time to time, in the name of the claimant-respondent.
The amount invested in Fixed Deposit as per the directions given above, will not be permitted to be withdrawn by the claimant-respondent without leave of this Court. However, 50% of the periodical interest accruing on such Fixed Deposit, will be permitted to be withdrawn by the claimant-respondent as and when the same accrues. Balance 50% of the periodical interest accruing on such Fixed Deposit, will continue to be reinvested in such Fixed Deposit.
Counter Affidavit and Rejoinder Affidavit may be exchanged between the parties by the next date fixed in the matter.
List on 25th November, 2011.
Order Date :- 11.8.2011
NS
