Kerala High Court
V.T.Suresh Kumar vs Managing Director on 16 March, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
MFA.No.140 OF 2019
AGAINST THE ORDER IN ECC 357/2014 DATED 06-09-2018 OF THE COURT OF
EMPLOYEES COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL AND
EMPLOYEES INSURANCE COURT),KOLLAM
APPELLANT/APPLICANT:
V.T.SURESH KUMAR
AGED 44 YEARS
S/O THANKAPPAN NAIR,LETHALAYAM,
NADUKKUNNU,VETTIKKAVALA.P.O,KOTTARAKKARA,
KOLLAM DISTRICT,PIN-691538.
BY ADV. SRI.N.SASIDHARAN UNNITHAN
RESPONDENTS/OPPOSITE PARTIES:
1 MANAGING DIRECTOR
KSRTC,TRANSPORT BHAVAN,
FORT,THIRUVANANTHAPURAM-695023.
2 ASSISTANT TRANSPORT OFFICER,
KSRTC,KILIMANNOOR DEPOT,
THIRUVANANTHAPURAM-695601.
3 DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD,
DIVISIONAL OFFICE,CHINNAKADA,
KOLLAM-691001.
R1-2 BY ADV. SRI.P.C.CHACKO, SC, KERALA STATE ROAD
TRANSPORT CORPN.
R3 BY ADV. SRI.A.A.ZIYAD RAHMAN
R3 BY ADV. SRI.LAL K.JOSEPH
THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON
16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MFA.No.140 OF 2019
2
CR
JUDGMENT
A very acme issue - appearing to be res nova - has been impelled by the appellant for forensic adjudication and answer by this Court; namely, if an employee is entitled to claim reimbursement of medical expenses for injuries caused in an accident during the course of his employment, even if such accident occurred before 18.01.2010, being the date on which Sub Section 2-A of Section 4 of the Employees Compensation Act, 1923 - which provides for such reimbursement - had been brought into the said Act.
2. The appellant, who is stated to have been working in the services of the Kerala State Road Transport Corporation (KSRTC for short), says that he suffered an accident on 09/01/2010, while he was MFA.No.140 OF 2019 3 driving one of their buses, bearing registration No.KL-15-6882 attached to the Kilimanoor depot; and that he was thus grievously injured, constraining him to eventually resign from their services.
3. The appellant submits that in the endeavour to avoid a direct collusion with a car travelling from the opposite direction - which was driven recklessly and seen overtaking a lorry carelessly - he had to swerve the bus to the left side, causing it to smash into a tree on the road margin, thus causing him very serious injuries.
4. The appellant asserts that he was 34 years at the time of accident; that he was drawing a monthly salary of Rs.10,000/- and thus claimed compensation of Rs.4 lakhs. He says that the claim made by him covered not merely the statutory compensation entitled to him under the MFA.No.140 OF 2019 4 provisions of the Employees Compensation Act, 1923, (hereinafter referred to as 'the Act' for short) but also the amounts suffered by him towards medical expenses, which he claims is also payable to him by his employer under the provisions of Sub Section 2-A of Section 4(1) of the said Act.
5. The appellant submits that, however, even though the Compensation Commissioner has granted all eligible compensation under Section 4 of the Act, it has refused to grant him the medical reimbursement under Sub Section 2-A of Section 4 of the Act, solely for the reason that the said Section was en-drafted into the Act only on 18/01/2010; while the accident took place on 09/01/2010.
6. The appellant predicates that the Compensation Commissioner is in error in MFA.No.140 OF 2019 5 having declined his claim for reimbursement of medical expenses; and consequently prays that the impugned final order, to the extent to which it denies such benefit, be set aside and the Compensation Commissioner be directed to grant him the said benefits also.
7. Shri.N.Sasidharan Unnithan, learned counsel appearing for the appellant, in substantiation of the afore plea of his client, submitted that Sub Section 2-A of Section 4 of the Act - though included in the Chapter relating to "Compensation" - must be construed to be an independent provision which is indented to provide succor to an employee for treatment of injuries caused during the course of employment, be that on account of an accident or on account of an occupational disease, which, in any case is deemed to be an accident within the meaning MFA.No.140 OF 2019 6 of Section 3(2) of the Act. He contents that, therefore, every expense for medical treatment incurred by an employee after 18/01/2010 would become payable and the date of accident, which was the cause of the injury would be of no relevance, since the said factor is applicable only in the case of compensation under the Act.
8. Shri.N.Sasidharan Unnithan thus argues that there is a clear distinction between "compensation" under the provisions of the Act and "reimbursement Of medical expenditure", the latter which has been sanctioned through Sub Section 2-A of Section 4 thereof with effect from 18.1.2010. He thus reiteratingly prays that all medical expenses incurred by his client after 18/01/2010 be declared to be liable to be reimbursed by the employer; and resultantly, that the impugned order, which denies this benefit, be interdicted to MFA.No.140 OF 2019 7 that extent.
9. Shri.Ziyad Rahman, learned Standing Counsel appearing for the 3rd respondent Insurance Company, vehemently opposed the afore submissions of Shri.N.Sasidharan Unnithan by saying that it has been now well settled through a catena of precedents, including Pratap Narain Singh Deo v. Srinivas Sabata and another [(1976) 1 SCC 289]; Kerala State Electricity Board & Another v. Valsala K. & Another [(1999) 8 SCC 254]; United India Insurance Company Ltd. v. Alavi [1998 (1) KLT 951 (FB)]; Oriental Insurance Company Ltd. v. Siby George and Others [(2012) 12 SCC 540] and North East Karnataka Road Transport Corporation v. Sujatha [(2019) 11 SCC 514], that the liability on the employer to pay compensation under Section 4 of the Act is fastened with effect from the date of the accident and that it "falls MFA.No.140 OF 2019 8 due" from that day.
10. Shri.Ziyad Rahman asserts that, therefore, as per the Scheme of the Act, it is the date of the accident which is important for calculating all benefits under it and that any payment which was not eligible to be claimed by the employee on the date of accident, cannot be claimed by him subsequently; and he adds to this by saying that this is particularly relevant in this case because, the accident took place on 09/01/2010, on which date, concededly, Sub Section 2-A of Section 4 of the Act had not been even introduced. He thus maintains that the reimbursement of medical expenses with respect to an accident that took place prior to 18/01/2010, being the date on which Sub Section 2-A of Section 4 was brought into effect, cannot be mulcted on the employer and, consequently, neither on the Insurance MFA.No.140 OF 2019 9 Company and thus prays that this appeal be dismissed.
11. Taking note of the importance of the issue involved, as also the fact that a binding precedent on this aspect did not appear to have been noticed by either of the learned counsel for the parties, I deemed it appropriate to seek the assistance of a learned Amicus Curiae and I, therefore, requested Shri.Jacob P.Alex, learned counsel of this Court, to assist me in such capacity.
12. Shri.Jacob P.Alex, learned Amicus Curiae, has filed his detailed notes on record, which I must say is very through and of great assistance to this Court and I must commend him for the effort taken in explaining the position of law with the support of almost all the judgments that cover the field.
MFA.No.140 OF 2019 10
13. Shri.Jacob P.Alex brought to my notice that the submissions of Shri.Ziyad Rahman - that the compensation payable under the Act can be computed only with relation to the date of the accident - is now well settled and he confirms that the afore cited judgments by the learned counsel is to such effect. He, however, says that the benefits granted through Sub Section 2-A of Section 4 of the Act are additional benefits, other than compensation under the Act, and that even though they are included in Section 4 - under the head of 'amount of compensation'
- they can only be construed to be reimbursement of actual expenses and not compensation for injury.
14. Shri.Jacob P. Alex, then continued to say that the afore two concepts are discernibly differently employed in the Act and drew my attention to the 37th report of MFA.No.140 OF 2019 11 the Parliamentary Standing Committee on Labour (2008-2009)('Committee' for short), prepared in support of the Workmen's Compensation (Amendment) Bill 2008 - which, however, subsequently lapsed - wherein the said Committee has recorded their resolve as under:
"21. The Committee observe that the Workmen's Compensation Act, 1923 does not have any provision regarding reimbursement of the expenditure to the employee incurred over the treatment due to injuries which he/she received during the course of employment. It defines only compensation depending upon the percentage of impairment of the wage earning capacity of the employee caused due to accident. The reimbursement of the expenditure incurred over the treatment of injuries caused due to accidents is natural corollary prior to compensation. To have a provision for a latter contingency and not for the treatment expenditure is beyond any rational approach and requires consideration. It is imperative that provision for reimbursement of medical expenditure is brought within the purview of the Act. The Committee, therefore, strongly emphasize that the provision for reimbursement of actual medical expenditure incurred for treatment of injuries caused during course of employment be made part of the Act"
15. The learned Amicus Curiae, thereafter, explained that though the above mentioned Amendment Bill 2008 lapsed in the MFA.No.140 OF 2019 12 next year, the Workmen's Compensation (Amendment) Bill 2009 was introduced, which has now been accepted, leading to the consequential amendment of the Act; wherein, the statement of objects and reasons - available in Paragraph 4 thereof
- states as under, with respect to the requirement for introduction of Sub Section 2-A of Section 4 into it:
"4. The Central government has decided to introduce the Workmen's Compensation (Amendment) Bill, 2009, on the lines of the Workmen's Compensation (Amendment) Bill, 2008 introduced in the 14th Lok Sabha incorporating therein certain recommendations of the Standing Committee proposing to amend the Workmen's Compensation Act, 1923, which inter alia, makes provision:-
(a) for amendment in long title and the provisions of the aforesaid Act so as to substitute "Workman" by the "employee",
(b) for enhancement of the minimum rates of compensation payable to a worker from eighty thousand rupees to one lakh twenty thousand rupees for death and from ninety thousand rupees to one lakh forty thousand rupees for permanent disability and to empower the Central Government to enhance the minimum rates of said compensation from time to time;
(c) to confer power upon the Central Government to specify the monthly wages MFA.No.140 OF 2019 13 in relation to an employee for the purposes of the aforesaid compensation;
(d) for enhancement of the funeral expenses from two thousand five hundred rupees to five thousand rupees and to empower the Central Government to enhance the same from time to time.
(e) for the reimbursement of actual medical expenditure incurred for treatment of injuries caused during the course of employment."
16. He says that, therefore, it is without doubt that the Parliamentary Committee has accepted the provisions of Sub Section 2-A of Section 4 of the Act to be an additional ameliorative benefit to an employee, which represents the actual amounts spend by him towards medical expenses and therefore, that it must be construed to be independent of the concept of "compensation" as contained in Section 4 of the Act.
17. After affirming as above, Shri.Jacob P.Alex shows me that, in M.S.K.Projects India (JV) Ltd. v. State of Rajasthan [(2011) 10 SCC 573], the Hon'ble MFA.No.140 OF 2019 14 Supreme Court has clearly noticed the distinction between "reimbursement" and "compensation" and he read out Paragraph 38 of it to demonstrate that "reimbursement" means an employee's restoration of any equivalent for something paid or expended; while "compensation" means anything to make the equivalent. He submitted that same view had been taken by the Supreme Court nearly 10 years earlier in Rathy Menon v. Union of India [(2001) 3 SCC 714] and referred to Paragraph 24 thereof, which also speaks on the afore lines.
18. Sri.Jacob P. Alex, in furtherance, very meticulously took me through various lexicons and dictionaries in substantiation of the afore and expressed his opinion that the appellant is entitled to succeed, particularly because the amounts of medical expenses incurred by him appears to be much after the date of accident, since he had a MFA.No.140 OF 2019 15 rather protracted hospitalization - from 09/01/2010 to 21/01/2010 and from 04/04/2010 to 12/04/2010 - and that the records reveal that he honoured the medical bills only on the dates of discharge, namely, 21/01/2010 and 12/04/2010 respectively. He says that, therefore, the amounts which the appellant incurred on account of Medical expenses after 18/01/2010, being the date on which Sub Section 2-A of Section 4 was brought into the Act, is certainly entitled to him from the employer and consequently from the Insurance Company.
19. I have examined the afore submissions and have also gone through the evidence and documents recorded and marked in trial by the Compensation Commissioner.
20. I notice from the files that the Compensation Commissioner has recorded the MFA.No.140 OF 2019 16 testimony of AW1, who is the appellant herein, and has marked Exts.A1 to A9 on his side, as also Ext.X1 being the disability certificate produced by him. I further see that the opposite party did not lead any evidence nor were any documents produced by them on their side. The Compensation Commissioner, after an exhaustive evaluation of the materials available, allowed the claim of the appellant under Section 4 of the Act, but refused to award reimbursement of the medical expenses under Sub Section 2- A of Section 4 of the Act, citing the reason that the accident took place prior to 18.01.2010, being the date when the said Section had been brought into the statute.
21. It is without any contest that Sub Section 2-A of Section 4 of the Act came into effect only from 18/01/2010 and that the accident took place on 09/01/2010. There is no dispute as regards this and MFA.No.140 OF 2019 17 axiomatically, I am, only called upon to consider whether the reimbursement of the medical expenses incurred by the appellant after 18/01/2010 would be eligible to him or whether such amounts has been rightly denied by the Compensation Commissioner, referring only to the date of the accident.
22. Prefatorily, there can be little doubt that in matters relating to compensation under Section 4 of the Act, it is the date of the accident which is relevant and no other. I don't have to labour much on this aspect in any manner at all because, as early as in the year 1976, the Hon'ble Supreme Court, in Pratap Narain Singh Deo (Supra), declared the law conclusively that the liability on the employer to pay the compensation under the Act commences as soon as the personal injury was caused to the claimant and that there can be no argument to the contrary. MFA.No.140 OF 2019 18 These declarations are indited in Paragraphs 7 and 8 of the said judgment, which makes very compelling reading and are, therefore, extracted as under:-
"7. 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 6, 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. There is therefore nothing to justify the argument that the employer's liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.
MFA.No.140 OF 2019 19
8. 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 heed 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."
23. The afore views of their Lordships in Pratap Narain Singh Deo (Supra) was approvingly restated by a Full Bench of this Court in Alavi (Supra), in the following manner in Paragraphs 10 and 11 of the said judgment:-
"10. The Workmen's Compensation Act is a special enactment enacted for the benefit of the workmen. This Act created new rights on the workmen and corresponding MFA.No.140 OF 2019 20 liabilities on the employer. S.3 of the Act deals with the employer's liability for compensation. In order to fasten liability there must be an injury and it should be caused in an accident and should be in the course of employment. The employer becomes liable to compensation, as soon as personal injury is caused to the workman by accident. S.4 deals with the amount of compensation. The amount of compensation allowable under the Act has been fixed by the Statute itself thereby leaving no option to the Commissioner, but to allow the compensation as fixed by the Statute once he holds the employee or his heirs entitled to claim compensation. S.4(I)(a) deals with compensation payable in the case of death. S.4(I)(b) deals with compensation payable in the case of permanent total disablement. The compensation to be awarded under various clauses of S.4 is to be in accordance with the Schedule given in the Act. S.4A of the Act deals with the compensation to be paid when due and penalty for default. The three sub-sections constituting S.4A deal respectively with three different aspects of payment of compensation under the Act, namely, (1) point of time at which compensation falls due, (2) employer's liability to pay provisional compensation where he does not accept his liability to the extent claimed and (3) power of the Commissioner to award interest and penalty.
11. A combined reading of Ss.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 gets 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 MFA.No.140 OF 2019 21 the Act. These legal positions have been clearly laid down by 5 Judges Bench of the Supreme Court in Pratap Narain Singh v. Srinivas, AIR 1976 SC 222 = 1976 ACJ
141."
24. After noticing the afore two judgments, the Hon'ble Supreme court delivered Valsala K. (Supra), unequivocally approving them; further holding that a two bench judgment of the Court in New India Assurance Company Ltd. v. V.K.Neelakandan [Civil Appeal Nos.16904- 16909 of 1996] was in error, since it took a contrary view. It, thereafter, went on to reaffirm the views in Pratap Narain Singh Deo (Supra) in Paragraph 3 of the judgment in the manner below:
"3. A four-Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata speaking through Shinghal, J. has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman 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"
25. The position being so declared by MFA.No.140 OF 2019 22 the Supreme Court, it is brought to my notice by the learned Amicus Curiae, Shri.Jacob P.Alex, that two other benches of the Hon'ble Supreme Court took dissimilar views in National Insurance Company Ltd. v. Mubasir Ahmed [2007 (2) SCC 349] and Oriental Insurance Company v. Mohd. Nazir [2009 (6) SCC 280]; but that, in a subsequent judgment, in Siby George (Supra), the afore judgments were found to be not binding and per incurium, which conclusions are recorded in Paragraph 9 thereof which is extracted as under:-
"9.Now, coming back to the question when does the payment of compensation fall due and what would be the point for the commencement of interest, it may be noted that neither the decision in Mubasir Ahmed nor the one in Mohd. Nasir can be said to provide any valid guidelines because both the decisions were rendered in ignorance of earlier larger Bench decisions of this Court by which the issue was concluded. As early as in 1975 a four Judge Bench of this Court in Paratap Narain Singh Deo v. Srinivas Sabata directly answered the question"
26. Finally, in the latest judgment in MFA.No.140 OF 2019 23 Northeast Karnataka Road Transport Corporation v. Sujatha [2019 11 SCC 514] the afore principles were emphatically reiterated and restated by the Hon'ble Supreme Court in paragraphs 20 to 25 thereof, which, for the sake of a complete reading, are excerpted infra:
"20) The grant of interest on the awarded sum is governed by Section 4-A of the Act. The question as to when does the payment of compensation under the Act 'becomes due' and consequently what is the point of time from which interest on such amount is payable as provided under Section 4-A(3) of the Act remains no more res intergra and is settled by the two decisions of this Court.
21. As early as in 1975, a four-
Judge Bench of this Court in Pratap Narain Sing Deo v. Srinivas Sabata speaking through Singhal, J, has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman in the accident which arose out of and in the course of employment. It was accordingly held that it is the date of the accident and not the date of adjudication of the claim, which is material.
22. Another question analogous to the main question arose before the three- Judge Bench of this Court in Kerala SEB v. Valsala K. as to whether increased amount of compensation and enhanced rate of interest brought on statute by amending Act 30 of 1995 with effect from 15.9.1995 would also apply to cases in which the accident took place before 15.9.1995. Their Lordships, placing reliance on the law laid down in MFA.No.140 OF 2019 24 Pratap Narain case held that since the relevant date of determination of the rate of compensation is the date of accident and not the date of adjudication of the claim by the Commissioner and hence if the accident has taken place prior to 15.9.1995, the rate applicable on the date of accident would govern the subject.
23. After these two decisions, this Court in two cases (both by the two-Judge Bench) viz. National Insurance Co.Ltd. v. Mubasir Ahmed and Oriental Insurance Co.Ltd. Mohd. Nasir without noticing the law laid down in Pratap Narain and Valsala cases took a contrary view and held that payment of compensation would fall due only after the Commissioner's order or with reference to the date on which the claim application is made.
24. This conflict of view in the decisions of the question was noticed by this Court (two-Judge Bench) in Oriental Insurance Co.Ltd. v. Siby George. Aftab Alam J, speaking for the Bench referred to the aforementioned decisions and explaining the ratio of each decision held that since the two later decisions rendered in Mubasir and Mohd. Nasir which took contrary view without noticing the earlier two decisions rendered in Pratap Narain and Valsala cases by the larger Benches (combination of four and three Judges respectively) and hence later decisions rendered in Mubasir and Mohd. Nasir cases cannot be held to have laid down the correct principles of law on the question and nor can, therefore, be treated as binding precedent on the question.
25. In other words the law laid down in Pratap Narain and Valasala cases was held to hold the field throughout as laying down the correct principle of law on the subject. The two-Judge Bench in Oriental Insurance Co.Ltd. v. Siby George accordingly followed the principle of law laid down in Pratap Narain and Valsala cases and decided the case instead of following the law laid down in Mubasir and Mohd. Nasir cases which was held per incuriam."
MFA.No.140 OF 2019 25
27. From the above, it is ineluctable that in the case of 'compensation' under the provisions of the Act, what is relevant is the date of accident; and further that such compensation becomes payable with effect from that date. Consequently, any subsequent amendment to the rates applicable to such compensation could not have any effect and the claimant will be bound by the computation as per the statutory figures available on the date on which the accident was caused.
28. This is indubitably so because the compensation under the Act is fixed by the Act itself, as has been declared in Rathi Menon v. Union of India [2001 (3) SCC 714] and Union of India v. Rina Devi [2019 (3) SCC 572] as also in Alavi (supra); and obviously, therefore, the compensation amounts become due on the MFA.No.140 OF 2019 26 date of accident itself, rendering the employer liable to honour it, or at least to the extent to which, he concedes to it. There can be no two ways on these propositions, whatsoever, at this point of time.
29. That said, however, the applicative question involved in this case is not whether compensation becomes payable on the date of the accident - which it undoubtedly does - but whether the reimbursement of medical expenses would also relate solely to that date.
30. As I have already recorded above, Sri.Ziyad Rahman, learned counsel for the Insurance Company, asserts that since compensation is payable only as per the computation based on the rates applicable on the date of accident, all other liabilities of the employer under Section 4 - which according to him, encompasses MFA.No.140 OF 2019 27 both Sub Section 2A and Sub Section 4 (relating to reimbursement of funeral expenses) - would also be only those as per the law applicable as on that date and no other.
31. However, contrary to this, Sri.N.Sasidharan Unnithan, learned counsel for the applicant, contends that since the benefit under Sub Section 2A of Section 4 is independent of the compensation under Section 4, it becomes payable on the date on which it is incurred by the employee without any reference to the date of the accident.
32. As also seen above, the opinion of the learned Amicus Curiae, Sri.Jacob P. Alex, favours the appellant, with him asserting that since the benefit of reimbursement of medical expenses - granted through Sub Section 2A of Section 4 of the Act - are applicable for the MFA.No.140 OF 2019 28 treatment of all injuries caused during the course of employment, and not merely to those caused by accidents, it is not governed by the date of accident, but by the date on which they are actually incurred.
33. When I proceed to answer the syllogistic stand of the parties as afore, I must notice that Section 4 of the Act begins with the heading "Amount of compensation". Until 18.01.2010, there was no provision for reimbursement of actual medical expenditure, but it was introduced through Sub Section 2A of Section 4 of the Act, which came into effect from that date. The specific tenor of Sub Section 2A is extremely important and I therefore, reproduce it as under to enable a quick reference:
"(2A) The employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during the course of employment"
MFA.No.140 OF 2019 29
34. It is perspicuous from the above that Sub Section 2A of Section 4 of the Act provides for the reimbursement of the actual medical expenditure incurred by an employee for treatment of injuries, without making a specific reference to any accident. This is crucial because, when one glances through Section 3(1) of the Act, it is limpid therefrom that, while Sub Section 1 of it provides for compensation in the case of personal injury caused by an accident arising of and in the course of employment; Sub Section 2 of it provides for compensation in the case of a disease contracted by an employee as an occupational one, which is peculiar to that employment.
35. What is of particular interest in Sub Section 2 of Section 3 is that even such an occupational disease is deemed to be an "injury caused by an accident"
MFA.No.140 OF 2019 30 within the meaning of the said Section;
and hence, when they are considered juxtaposed with the provisions of Sub Section 2A of Section 4 of the Act, it becomes inevitable that every kind of injury - be that caused by accident or on account of occupational diseases - would come within its ambit and that the employer will be liable to reimburse the actual medical expenditure incurred by the employee in such regard.
36. That apart, as rightly opined by the learned Amicus Curiae, while Section 4 talks about "compensation" for death or injury on account of an accident, as a case may be, Sub Section 2A talks of "reimbursement" of the actual medical expenditure; making it beyond contest that while the former is in the nature of unliquidated damages, the latter is in the nature of reimbursement of liquidated MFA.No.140 OF 2019 31 expenses.
37. This is evident from the following passage in M.S.K.Projects India (supra), wherein the Hon'ble Supreme Court spoke succinctly regarding the difference between 'reimbursement' and 'compensation':
"38. In common paralance, 'reimbursement' means and implies restoration of an equivalent for something paid or expended. Similarly, 'compensation' means anything given to make the equivalent. (See State of Gujarat v. Shantilal Mangaladas TISCO Ltd. v. Union of India, GDA and HUDA v. Raj Singh Rana). However, in Dwaraka Das v. State of M.P, it was held that a claim by a contractor for recovery of amount as damages as expected profit out of contract cannot be disallowed on ground that there was no proof that he suffered actual loss to the extent of amount claimed on account of breach of contract."
38. In addition, I am fortified in my view by the submissions of the learned Amicus Curiae, Sri.Jacob P. Alex, that the words "reimbursement" and "compensation" are semantically different and I notice that he has placed on record the meanings of these terms from various dictionaries MFA.No.140 OF 2019 32 and lexicons as under:
A. "Concise Oxford English Dictionary - 11th Edition
1. Compensation (noun) - something awarded to compensate for loss, suffering or injury.
2. Reimburse (Verb) - repay (a person who has spent or lost money);
repay (a sum of money that has been spent or lost) B. P Ramanatha Aiyar Concise Law Dictionary (Abridged Version) - 1997 Edition - Wadha & Company, Nagpur
1. Compensation - an act which a Court orders to be done, or money whch a Courts orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal values for hos loss, or be made whole in respect of his injury.
2. Reimbursement no definition given.
3. Repay - to refund (a sum of money etc.). C. Black's Law Dictionary - 9th Edition
1. Compensation - Payment of damages, or any other act that a court orders to be done by a person who has caused injury to another.
2. Reimburse - repayment, indemnification
3. Indemnify - To reimburse (another) for a loss suffered because of a third party's or one's own act or default.
D. Merriam - Webster Law Dictionary
1. Compensation - something that makes up for a loss
2. Reimburse - to pay back to someone."
39. As far as the Act is concerned, the difference between the two terms can brook no confusion because, as declared by the Hon'ble Supreme Court in Rathi MFA.No.140 OF 2019 33 Menon (supra) and Rina Devi (supra), "compensation payable" under the Act is fixed in the Act itself. The relevant paragraph in Rathi Menion (supra) makes this clear, which is, therefore, extracted below to enable complete comprehension.
"33. The scheme of the provision under the WC Act is materially different from the scheme indicated in Chapter XIII of the Railways Act. In the former, compensation payable is fixed in the Act itself through the Schedule incorporated thereto. Section 4 of the WC Act shows that such compensation is to be linked with the monthly wages of the workman concerned. It also provides the the liability to pay compensation on the employer would arise not when the Commissioner passes the order but on the date of sustaining the injury itself. A provision is made in Section 4-A of the WC Act that where any employer is in default of paying the compensation due within one month the Commissioner shall direct the employer to pay not only interest but in appropriate cases a penalty ranging up to 50% of the amount payable. The said scheme cannot be equated with the scheme in Chapter XIII of the Railways Act, as the principles involved have differences."
40. In fact, the same view is seen adopted in Alavi(supra), as is discernible from the extracted portions of the said MFA.No.140 OF 2019 34 judgment in paragraph 20 herein; but it is without doubt that in the case of reimbursement of medical expenses this is not so, since it depends upon the actual expenses incurred and suffered by the claimant from time to time and is not a fixed sum related to the date of accident.
41. An insight to the intention of the Statute makers to draw a distinction between the "reimbursement of medical expenses" and "compensation" in the Act is also obtained from the explanation to Section 4(2) of the Act - which refers to compensation in the case of temporary disablement and which sanctions certain type of payments to the employee in such cases - wherein, it stipulates luculently that 'any payment or allowance which the employee has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance MFA.No.140 OF 2019 35 received by him by way of compensation within the meaning of Clause A of the proviso'. The fact that Section 2A of Section 4 was introduced just beneath this explanation would make the position crystally clear; and consequently, am of the firm opinion that this Court will be fully justified in accepting the submissions of the learned Amicus Curiae, that "reimbursement of medical expenses"
under the Act is different and independent from the "compensation" payable under Section 4 of it.
42. That being so said, moving on the legislative intent leading to the introduction of Sub Section 2A of Section 4 of the Act, as is recorded in the 37th report of the Standing Committee on Labour of the 14th Lok Sabha - which has been extracted ut supra in paragraph 13 of this judgment - makes it irrefutable that MFA.No.140 OF 2019 36 since the Workman's Compensation Act, 1923 (as the Statute was then called) did not have any provision regarding reimbursement of the actual medical expenses, the Committee felt that a specific provision for such purpose was imperative and thus the introduction of a Sub Section in the Act was recommended.
43. Even though the Workman's Compensation (Amendment) Bill, 2008, lapsed thereafter, Sub Section 2A of Section 4 was introduced through the Workman's Compensation (Amendment) Bill, 2009 and the statement of objects and reasons for its introduction, which are as excerpted in paragraph No.13 of this judgment, clearly show that it was intended for reimbursement of all medical expenditure incurred by an employee for treatment of his injuries caused during the course of employment.
MFA.No.140 OF 2019 37
44. Hence it becomes indisputable that the Act, as it now stands, provides for compensation for injury on account of an accident, as also reimbursement of actual medical expenditure in the case of any personal injury which may be on account of an accident or on account of occupational diseases.
45. Obviously, therefore, the submissions of Sri.Ziyad Rahman, that Sub Section 2A of Section 4 should also relate to the date of accident, cannot find my favour because the date of accident becomes relevant only for the purpose of computation of the compensation, which is a certain and fixed sum under the Act; while the reimbursement of medical expenditure is not a sum that can be computed under the provisions of the Statute, but based on the actual medical bills, which will have to be produced and MFA.No.140 OF 2019 38 established by the claimant.
46. The crucial difference between the concepts of "compensation" and "reimbursement" under the Act, namely that the former is a fixed sum which relates to the date of the accident and the latter being a flexible one, depending upon the medical bills to be produced and established by the claimant, renders the scenario crystally clear; and therefore, the declarations of the Hon'ble Supreme Court in the afore cited judgments - that the date of accident is the only one relevant for the purpose of computation of "compensation" under the Act - will not apply to the case of "reimbursement of medical expenses" under Sub Section 2A of Section 4. Axiomatically, the claimant becomes entitled to such reimbursement incurred by him after 18.01.2010.
47. Resultantly, it becomes needless MFA.No.140 OF 2019 39 to say that though the medical expenditure incurred by the claimant prior to 18.01.2010 would be rendered incapable of being claimed by him, the amounts incurred thereafter, would certainly be enjoined upon the Compensation Commissioner to consider as per law.
48. In summation, I am of the firm opinion that the impugned order of the Compensation Commissioner, to the extent to which it has denied the claim of the appellant for reimbursement of medical expenses, requires to be interfered by this Court and that a reconsideration of the same becomes necessary and imminent.
Resultantly, I allow this appeal and set aside the award to the afore extent;
with a consequential direction to the
Compensation Commissioner to reconsider
the claim of the appellant for
reimbursement of actual medical
MFA.No.140 OF 2019
40
expenditure, after assessing and
evaluating the dates on which it had been incurred by him, under the provisions of Sub Section 2A of Section 4 of the Act, leading to a final order, after affording necessary opportunity to both sides, as expeditiously as is possible but not later than four months from the date of receipt/production of a copy of this judgment.
I make it clear that since the appellant has not called into question any other issue before this Court, all other conclusions and holdings of the Compensation Commissioner in the impugned order are confirmed and that the remand is being ordered solely for the purpose of examining and adjudicating if the claimant is entitled to any reimbursement of actual medical expenses and if so, to what extent.
In the nature of the singular MFA.No.140 OF 2019 41 circumstances noticed in this case, I deem it appropriate not to make any order as to costs and to direct the parties to suffer their respective costs.
I close this judgment placing on record the appreciation of this Court for Sri.Jacob P. Alex, learned Amicus Curiae, for his detailed exposition of the issues involved.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC/RP