Delhi High Court
Oriental Insurance Co.Ltd vs Bimlesh & Ors on 7 September, 2012
Author: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 474/2011
% Date of Decision: September 7, 2012
ORIENTAL INSURANCE CO.LTD ..... Appellant
Through : Mr. L.K.Tyagi, Advocate
versus
BIMLESH & ORS ..... Respondents
Through : Mr. Sanjeev Srivastava, Advocate
for respondent no.1.
Mr.J.P.Verma, Advocate for
respondent no.2.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J (Oral)
*
1. The present appeal is filed against the impugned order dated 30th
August, 2011 passed by the Commissioner, Employee's Compensation
under the Employee's Compensation Act, 1923 (hereinafter referred to as
`the Act') wherein the Commissioner has directed the appellant-Oriental
Insurance Company to pay compensation of Rs.5,04,000 along with simple
interest @ 12% per annum from the date of accident i.e., 8.12.2009 till its
realization to the respondent.
2. Learned counsel for the appellant has contended that the grievance of
the appellant is that the Commissioner has calculated the compensation on
the basis of the amended Act by taking the wages of the deceased @
FAO 474/2011 Pag e 1 of 5
Rs.4500/- per month. It is contended that as per the settled law laid down
by the of the Supreme Court, the compensation in the present case ought to
have been calculated on the basis of provisions which were applicable on
the date of accident. It is contended that under the unamended provisions
applicable on the date of accident, the calculation was to be made on the
basis of wages not exceeding Rs.4000/- per month. In support of his
contention, learned counsel for the appellant has relied upon KSEB vs
Valsala: II (1999) ACC 656 (SC). It is further contended that the other
grievance is that the interest on compensation is awarded by the
Commissioner from the date of accident whereas it ought to be awarded
from the date of adjudication of the claim petition.
3. Admittedly the date of accident is 8.12.2009. It is admitted position
that the deceased Banti @ Jai Kishan was in the employment of respondent
no.2 who was the owner of truck bearing no.HR-69-0441 and his death had
occurred during the course of employement as he was crushed under the
wheels of aforesaid truck. Before the Commissioner, appellant had
admitted its liability. The Commissioner has calculated the compensation
by taking the salary of the deceased at Rs.4500/- per month and by taking
into consideration the age of the deceased and the relevant factor as provided
under the Act, the compensation has been computed as Rs.5,04,000/-. What
is relevant date for determining the rights and liabilities of the parties under
the Act has been dealt with by the Supreme Court in the Kerala State
Electricity Board & anr Vs. Valsala K and Anr: II (1999) ACC 656
wherein relying on the four Judges' Bench of the Supreme Court in Pratap
FAO 474/2011 Pag e 2 of 5
Narain Singh Deo V Srinivas Sabata & anr: 1976(1) SCC 289, it has been
held that the relevant date for determination of date of compensation is the
date of accident and not the date of adjudication of claim.
4. In the present case, the date of accident is 8 th December, 2009. The
amendment to the Act came into effect on 18 th January, 2010, by which
explanation II to Section 4 was omitted. Prior to 18.1.2010, the maximum
wages under the Act which was to be taken into consideration for calculating
the amount of compensation was not to exceed Rs.4000/- whereas in the
present case the Commissioner has taken the wages of deceased as Rs.4500/-
per month. Accordingly, excess amount of Rs.56000/- has been awarded.
5. Mr.Sanjeev Srivastava, learned counsel for the respondent who is
present has not pointed out anything to the contrary.
6. It is stated that the compensation amount on the basis of calculation of
monthly wages @ Rs.4000/- per month, comes to Rs.4,48,000 and the said
amount has already been paid to respondent no.1. It is not disputed by the
learned counsel for the respondent no.1 that excess amount of Rs.56000/-
has been awarded. In view of the above submission made, let the excess
amount of Rs.56000/- along with interest which has accrued on the same
and which is lying deposited with the Commissioner be released in favour of
the appellant.
FAO 474/2011 Pag e 3 of 5
7. As regards the contention that the interest is payable from the date of
adjudication, learned counsel for the appellant has relied upon National
Insurance Co. Ltd Vs Mubasir Ahmed & Ors: 2007(2) SCC 349.
8. The Supreme Court in Pratap Narain Singh Deo vs. Srinivas
Sabata and Anr.; (1976) 1 SCC 289 has held that the liability arises as soon
as personal injury is caused to the workman and employer has to pay the
compensation in accordance with Section 4 of the Act, the failure to pay
entails liability to pay interest and penalty under Section 4A of the Act. The
relevant para of the judgment is reproduced as under:-
"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. He failed to do so. What is worse, he did not
even make a provisional payment under Sub-section (2) of
Section 4 for, as has been stated, he went to the extent of
taking the false pleas that the respondent was a casual
contractor and that the accident occurred solely because of
his negligence. Then there is the further fact that he paid no
need to the respondent‟s personal approach for obtaining
the compensation. It will be recalled that the respondent
was driven to the necessity of making an application to the
Commissioner for settling the claim, and even there the
appellant raised a frivolous objection as to the jurisdiction
of the Commissioner and prevailed on the respondent to
file a memorandum of agreement settling the claim for a
sum which was so grossly inadequate that it was rejected
by the Commissioner. In these facts and circumstances, we
have no doubt that the Commissioner was fully justified in
making an order for the payment of interest and the
penalty."
FAO 474/2011 Pag e 4 of 5
9. The judgment relied upon by the learned counsel for the
appellant i.e. National Insurance Co. Ltd. vs. Mubasir Ahmed &
Ors.(supra) to contend that the interest becomes payable not from
the date of accident but after one month of adjudication by the
Commissioner is of no help to the appellant as the said decision is by
the two Judge Bench of the Supreme Court and does not refer to the
decision of Pratap Narain (supra) which has been delivered by the
four Judge Bench of the Supreme Court.
In view of the above discussion, no case is made out to interfere with
the findings as regards interest is given by the Commissioner.
The appeal stands disposed of accordingly.
VEENA BIRBAL, J
SEPTEMBER 7, 2012
ssb
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