National Insurance Company ... vs Swarna Kaur Sokhi And Ors.
2004 Latest Caselaw 635 Bom

JUDGMENT

Mohta Anoop V., J.

1. Heard. The present appeal has been filed by the appellant, National Insurance Company Limited, Nagpur, whereby the order dated 31-10-1986, passed by the Commissioner under the Workmen's Compensation Act (for short 'the Act') in Case No. 79/1984 whereby, the appellant have been ordered to pay Rs. 48,428/- with interest at the rate of 5% to the respondents herein i.e. original applicants.

2. The impugned order is of dated 31-10-1986. On 17-5-.1984 a motor truck bearing No. MTG 4603 met with an accident, in which one Mr. Sohansingh died. The late respondent No. 1 is the mother and respondent No. 2 is the daughter of said Sohansingh. As the said Sohansingh was in the employment of the original non-applicant No., respondent No. 3 herein as driver, an application for compensation under the Act came to be filed. After considering the material on record by the impugned order, the aforementioned compensation was awarded as per the amended provisions of the Act. The respondent No. 3 has chosen not to prefer any appeal against the said order.

3. The learned Counsel appearing for the appellant basically contended that there was amendment to the original Section 4 by Act of 22 of 1984 w.e.f. 1-7-1984. It was further amended by Act of 1985 w.e.f. 15-9-1995 and therefore, contended that in view of the settled provision and interpretation as declared by the Hon'ble Apex Court, and various High Court, the award of compensation on the basis of the amended provisions of the Act is not permissible. He relied on Kerala State Electricity Board and Anr. v. Valsala K and Anr., 1999(II) A.C.C. 656 (S.C.) and 1976(I) S.C.C. 289 : A.I.R. 1976 S.C. 222 : 1976 A.C.J. 141, Pratap Narayan Singh Deo v. Srinivas Sabata and Anr., 1998(1) K.L.T. 951 (F.B.), United India Insurance Com. Ltd. v. Alavi. The relevant paras of the Full Bench decisions, are 11 and 13, which are as under:

11. A combined reading of Sections 3(1), 4(1) and 4-A indicates that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by those provisions. The right of the injured employee or his heirs to receive compensation get crystallised the moment the personal injury takes place. The corresponding liability of the employer to make good this claim also springs forth simultaneously and the liability has to be computed as per the relevant provisions of the Act. These legal positions have been clearly laid down by 5 Judges Bench of the Supreme Court in Pratap Narain Singh v. Srinivas, A.I.R. 1976 S.C. 222 :1976 A.C.J. 141, While dealing with the relevant provisions in the Act, the Supreme Court has held as follows:

"Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if personal injury is caused to a workman by accident arising out of and in the course of his employment. It was not the case of the employer that the right to compensation was taken away under Sub-section (5) of Section 3 because of the institution of a suit in a Civil Court for damages, in respect of the injury, against the employer or any other person. The employer, therefore, became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore, futile to contend that the compensation did not fall due until after the commissioner's order dated May 7, 1969 under Section 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement be settled by the Commissioner.

13. We may also notice that various High Courts while dealing with the claims for compensation under the workmen's Compensation Act, have uniformly taken the view that the relevant date for determining the rights and liabilities of parties is the date of the accident. The Gujarat High Court in General Manager, Western Railway v. Lala Nanda, 1985 A.C.J. 57 (Guj.), the Bombay High Court in Margarida Gomes v. Mackinnon Mackenzie & Co. Ltd., A.I.R. 1968 Bom. 328. Allahabad High Court in Saraswati Press v. Nand Ram, 1971 Lab.I.C. 1341. Jammu and Kashmir High Court in Vijay Ram v. Janak Raj, 1981 A.C.J. 184, Rajasthan High Court in Ramlal v. Regional Manager, Food Corporation of India, 1981 Lab.I.C. 1281 etc. have taken the same view."

A reference is also made to the Apex Court decision in Maahar Singh v. Jashwant Singh, 1997 A.C.J. 517, for the same principle. The Apex Court basic decision as reported in Pratap Narain Singh v. Srinivas, A.I.R. 1976 S.C. 222, has also been followed.

4. The relevant para of Kerala State Electricity Board (supra), which clinches the issue, are para Nos. 3 and 5, which are reproduced herein below:

3. A four Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata and Anr., 1976(1) S.C.C. 289, speaking through Singhal, J., has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation, is the date of the accident and not the date of adjudication of the claim.

4.....

5. Our attention has also been drawn to a judgment of the Full Bench of the Kerala High Court in United India Insurance Company Ltd. v. Alavi, 1998(1) K.L.T. 951(F.B.), wherein the Full Bench precisely considered the same question and examined both the above noted judgments. It took the view that the injured workman becomes entitled to get compensation the moment he suffers personal injuries of the types contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable in the date of the accident and not the amount of compensation payable on account of the amendment made in 1995, which is relevant. The decision of the Full Bench of the Kerala High Court to the extent it is in accord with the judgment of the larger Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata and Anr. (supra) lays down the correct law as we approve it."

5. In view of this, as the above referred order of compensation based on the amended provisions of the Workmen's Compensation Act, it cannot be sustained. The respondents are entitled for the compensation on the basis of then existing provisions of the Act. In view of the settled law, the relevant date for determination of the compensation should be the date of accident and not the date of adjudication of the claim. As stated above, the date of accident was 17-6-1984 and effective date of the first amendment Act of 22 of 1984, therefore, there is no question of applying the amended provision while awarding the compensation based on an accident prior to such effective date in question. Therefore, the order to that extent is unsustainable including all related consequences.

6. The learned Counsel appearing for the appellant pointed out that the respondents would have entitled for the amount as per the old Act, which is Rs. 21,600/- with interest @ 6% per annum from 1-7-1984 till the actual receipt of the amount or deposit of the same.

7. Despite service none appeared for the respondents. No appearance are shown on the record. The matter was listed firstly on 11-8-2003, and thereafter on 7-6-2004, 15-6-2004 and now today i.e. 21-6-2004.

8. However, considering the fact that there was an accident on 17-6-1984, and one Sohansingh died. The award is of 31-10-1986, and keeping in view the facts and circumstances of this case, it is expected that the appellant will take a lenient view.

9. In view of this settled position of the law. As stated above, the impugned judgment and order is modified and it is directed to make the payment as per the provisions of Workmen's Compensation Act, as on the date of accident i.e. 17-6-1984. Rest of the award is required to be modified accordingly, in so far as the fixation of the amount as per the respective proportion as awarded in the matter, if necessary.

10. That the respondent No. 1 Mother, of the deceased Sohansingh died during the pendency of the appeal, and her name came to be deleted by the order dated 27-6-1990. The surviving daughter-respondent No. 2 is the only a legal representative of the deceased Sohansingh on the record. In view of the order dated 31-10-1986, interest on the total amount as referred above, has already been enjoyed by the respondents, especially the amount which has been invested by Workmen's Compensation Commissioner in the National Saving Certificates, VIIth Issue. Therefore, without passing any specific order so far as that part is concerned, and it is declared that the appellants are entitled only to recover the balance principal amount and not the interest part.

11. The learned Counsel appearing for the appellant, after verification from the record, pointed out that the appellant has deposited total amount of Rs. 56,176/- on 26-2-1987, out of that the respondent Nos. 1 and 2, at the relevant time, had been paid Rs. 21,376/- on 26-3-1987, by the Workmen's Compensation Commissioner. The balance amount of Rs. 34,800/- have been invested in National Saving Certificates, VIIth Issue, on 26-3-1987 itself. This amount is still with the Workmen's Compensation Commissioner.

12. The learned Advocate had also placed on the record the basic entitlement of the respondent as per the unamended provisions of the Workmen's Compensation Act, on the basis of the date of accident in question.

13. The entitlement according to the pursis filed on the record by the appellant's, is of Rs. 21,600/- and interest @ 6% p.a. From 17-6-1984 till the date of deposit i.e. 26-02-1987 comes to Rs. 3400/-. Therefore, the total entitlement of the respondent No. 2 is of Rs. 25,000/- only.

14. The respondent No. 2 is entitled to the compensation on the basis of unamended provisions, as per above para. The appellant may recover or to take appropriate steps for the recovery of the principal amount of compensation paid in excess, but not the interest already earned till this date, as observed above.

15. The Workmen's Compensation Commissioner, in view of this order shall encash the National Saving Certificates, VIIth issue and act accordingly.

16. The award is modified and appeal is partly allowed. No order as to costs.