Oriental Insurance Co. Ltd vs Md. Mehebub Alom And Anr
2022 Latest Caselaw 665 Gua

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GAHC010015502009




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : MFA/38/2009

             ORIENTAL INSURANCE CO. LTD.
             A COMPANY REGD. UNDER THE COMPANIES ACT, REPRESENTED BY ITS
             REGIONAL MANAGER, ULUBARI, GUWAHATI-7.



             VERSUS

             MD. MEHEBUB ALOM and ANR.
             S/O NURUL ISLAM A.M.CO. ROAD, P.S. AND DIST. DHUBRI, ASSAM.

             2:MOTIUZAMAN SK.
              S/O ABDUL MOZID SK. VILL. DR. ZAKIN HUSSAIN ROAD BIDYAPARA
             WARD NO.9
              P.O. BIDYAPARA
              P.S. AND DIST. DHUBRI
             ASSAM

Advocate for the Petitioner   : S K GOSWAMI

Advocate for the Respondent : MD.S ISLAM , MR AMARENRA GOGOI LEGAL AID COUNSEL

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

24.02.2022

Heard Mr. S. K, Goswami, learned counsel appearing for the appellant as well as Mr. A. Gogoi, learned Legal Aid Counsel representing the respondents.

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2. This is an appeal under Section 30 of the Workmen's Compensation Act, 1923 against the common judgment and order dated 28.08.2007 passed by the Commissioner, Workmen Compensation, Dhubri in WC Case No. 22/2006.

3. The respondent no. 1 was an employee under the respondent no. 2, who owned the three wheeler vehicle bearing registration number AS-17-7140. On 02.04.2006, at about 4.30 PM, the said vehicle driven by the respondent no. 1 met with an accident on the National Highway No. 31. The accident took place because of tyre burst. As a result of the accident, the respondent no. 1 sustained grievous injuries. He was taken t the nearest hospital, thereafter, he had to take treatment in several other hospitals including a hospital at Coochbihar, West Bengal. Finally, he had to go to another hospital at Siliguri, West Bengal, where his left hand was amputated. Thus, the respondent no. 1 became permanently disable.

4. The respondent no. 1 filed a claim case before the Commissioner, Workmen Compensation at Dhubri. By the impugned judgment, the Commissioner awarded a compensation of Rs.4,49,273/- with interest @ 9% per annum to be calculated from the date of the accident.

5. The present appeal was admitted for hearing upon the following three substantial questions of law:

(i) Whether the learned Commissioner, Workmen's Compensation can assess the monthly wage of a workman contrary to the definition given in Section 2 (n) of the W.C. Act, 1923; without deducting an amount for daily allowance from total monthly stipend receipt received from his employer?

(ii) Whether the Commissioner, Workmen's Compensation can direct payment of interest on the award from the date of the accident or one month from the date of adjudication?

(iii) Whether the Commissioner, Workmen's Compensation can assess loss of earning capacity of an injured contrary to Schedule-I of the W.C. Act, 1923?

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6. Mr. Goswami, appearing for the appellant has referred to Section 4 A of the Workmen's Compensation Act, 1923 and has relied upon a decision of the Supreme Court that was rendered in National Insurance Co. Ltd. v. Mubasir Ahmed, (2007) 2 SCC 349. In paragraph 9 of the said judgment, the Supreme Court held as under:

"9. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh [(1998) 9 SCC 134] . By amending Act 30 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is "falls due". Significantly, legislature has not used the expression "from the date of accident". Unless there is an adjudication, the question of an amount falling due does not arise."

7. I have given my anxious consideration to the submissions made by the learned counsels for the both sides.

8. The compensation, awarded by the Commissioner, must fall due on a certain date and if on that day the compensation is not paid then only interest upon the award will start to accrue from that day. The Commissioner, Workmen's Compensation is not entitled to award interest upon the compensation from the date of the accident.

9. This appeal relates to an incident that took place in the year 2006, when the respondent was a 30 years old young person and after 16 years, the respondent no. 1 is yet to receive compensation. There is no dispute that because of the accident the Page No.# 4/4

respondent no. 1 had lost his left hand. He became permanently disable. The accident took place during the course of employment. His monthly income was held to be Rs.4,000/-. On this point, at this stage, this court does not intend to have any opinion other than what the Commissioner had held.

10. The Commissioner assessed the disability of the respondent no. 1 to be 90%. Mr. Goswami has referred to Schedule-I of the Act of 1923 and submitted that for loss of a hand of a person, the percentage of loss of earning capacity should have been assessed at 60%.

11. This Court has decided to agree with Mr. Goswami that the loss of earning capacity held to be 90% by the Commissioner is without any basis. Because the Schedule -I of the Act of 1923 has mentioned that in case of loss of hand, the percentage of loss of earning capacity is 60%. This is a statutory mandate and it must be followed by all concerned authorities.

12. Therefore, under the said premised reasons, the impugned judgment requires to be modified. Taking into consideration the aforesaid facts, ,the respondent no. 1 is entitled to a compensation of Rs.3,49,406/- only.

13. The compensation shall be paid before 30th April, 2022. If it is not paid within that period, then the compensation shall carry a simple interest @ 9% per annum from 30th April, 2022 till full payment.

14. The appeal is allowed with the aforesaid modification and direction.

15. Send back the LCR.

JUDGE

Comparing Assistant