Andhra HC (Pre-Telangana)
Samala Gangadhar vs Ch. Gangaram And Anr. on 27 July, 2004
Equivalent citations: I(2005)ACC166, 2006ACJ385, 2004(5)ALD84, 2004(5)ALT115
JUDGMENT M. Narayana Reddy, J.
1. This judgment, according to Law, arises out of a civil miscellaneous appeal, filed by the sole appellant, against R1 and R2, under Section 30 of the Workmen's Compensation Act, 1923, questioning the, validity and legality, of the adjudications made by, and set forth in Para 2, infra.
2. Orders dated 31-7-2003, of the Commissioner for Workmen's Compensation, Nizamabad, made in WC No. 83/2002, of his file.
3. Perused the material papers of the Record.
4. Arguments were heard.
5. The sole appellant in this C.M.A. corresponds, to the sole applicant in the said WC No. 83 of 2002, on the file of the said Commissioner. R.1 and R.2 herein correspond, respectively, to Opposite Party Nos. 1 and 2 therein, being, respectively, the owner and the Insurance Company of the accident vehicle.
6. The parties are, hereinafter, referred to, as the applicant, the owner and the Insurance Company, lest, so specified.
7. The sole applicant filed the said W.C. No. 84 of 2002, before the said Commissioner, against the owner and the Insurance Company, under Section 22 of the said Workmen's Compensation Act, 1923 (W.C. Act, 1923), for recovery of total compensation of Rs. 2,00,000/-, with interest thereon, in respect of the injuries, and disabilities, etc., alleged to have been sustained, by him, on 4-3-2001, around 5.30 p.m., near Narendra College on NH 7 Road at Armoor Village shivar, out of, and, in the course of, his employment, as a Driver, on Tipper bearing No. AP 25 T 2269 (accident Tipper), owned by the owner, and insured with the Insurance Company, etc., etc.
8. In the said W.C., the owner of the said accident Tipper, filed a written statement, inter alia, admitting the employment of the applicant under him, in the said accident lorry and his salary, as Rs. 6,000/-, per month, by the date of the accident, and the consequences, thereof, etc.
9. In the said W.C., the Insurance Company of the said accident lorry, filed a Written Statement, inter alia, denying all the material allegations made therein, by the applicant, etc., and hence, urging for dismissal thereof, etc., etc.
10. Subsequently, the said Commissioner enquired into the said W.C. No. 83 of 2002, in the process whereof, he, recorded the oral evidence of P.W1 and P.W.2, and, exhibited the documentary evidence, by way of Exs.A1 to A.7, and, later, after due arguments there-into, finally, adjudicated thereupon, by his now impugned orders, dated 31-7-2003, set forth in Para 2, supra, as under;
(a) Awarded total compensation of Rs. 84,259/- as against the WC maximum claimed compensation of Rs. 2,00,000/-;
(b) Directed, the owner and the Insurance Company, to pay the foregoing awarded compensation, jointly and severally, etc., by deposit thereof with the Commissioner; and
(c) Did not award any interest, on the foregoing awarded compensation.
11. Aggrieved thereby, and, hence, questioning the, validity and legality, thereof, but, only, insofar as the same awarded lesser compensation, than what was claimed in the W.C., as well as, as, the same failed to award any interest, and not estimating the disability, at 100%, etc., only, the applicant filed the present C.M.A., as set forth in Para 1, supra, read with Para 2, supra.
12. The owner and the Insurance Company did not file any independent C.M.As., questioning the foregoing impugned orders, or, any part, or, parts, thereof, on any aspect, or, aspects.
13. In the foregoing facts and circumstances, and the legal position, prevailing, the findings of the said Commissioner, insofar as the same are not questioned by any of the parties, became, final and binding, on all the concerned, including this Court, inter alia, due to efflux of time prescribed to question the same, etc.
14. Hence, the findings of the said Commissioner, that, the applicant is a Driver under the owner, in respect of the said accident Tipper, bearing No. AP 25 T 2269, within the meaning of the said W.C. Act, 1923, and that, he sustained injuries, etc., out of, and, in the course of his employment, as Driver, under the owner, in the said lorry, became, final and binding, on all the concerned.
15. Again, similarly, the finding of the said Commissioner, that, the owner and the Insurance Company are liable to pay, jointly and severally, the compensation payable to the applicant, also, became, final and binding, on all the concerned.
16. So, therefore, the only questions, that, remain to be decided in the present C.M.A., will be, whether, the said Commissioner failed to estimate the disability, at 100%, and wrongly failed to award interest, as claimed in the W.C., even though, he is entitled for the same, according to Law, etc., etc.,
17. Latha Wadhva and Ors. v. State of Bihar and Ors., , inter alia, estimating the value of services of a house wife, at Rs. 3,000/-, per month. However, as can directly be seen from this Ruling, this case pertains to compensation in respect of tort and negligence in the factory of TISCO of Tata, etc. After considering the entire Ruling, I am of the opinion, that, on the basis of analogy, the wages of a Driver, or, Cleaner, or, Labourer in a case under WC Act, 1923, cannot be fixed at that rate, of Rs. 3,000/-. The facts, the circumstances, and the context, in which this Ruling of the Supreme Court was delivered, on the one hand, and the same, prevailing, in the case, on hand, are, totally, distinct and dis-similar. Inter alia, that, Ruling pertains to negligence, tort, and compensation, etc. Hence, this Ruling does not apply to the case, on hand.
18. The learned Counsel for the applicant vehemently urged, that, under Explanation II of Sub-section (1) of Section 4 of the said W.C. Act, 1923, maximum wages of Rs. 2,000/-, or, Rs. 4,000/-, as prescribed therein, as the case may be, prior to, or, after, the amendment thereof, have to be considered for the purposes of calculation and computation of the compensation, etc.
19. A careful analysis and examination, and, so to say, even a superficial reading of Explanation II of Sub-section (1) of Section 4 of the said W.C. Act, 1923, in my opinion, prior to its amendment, on 8-8-2000, will make it manifest, that, the amount of Rs. 2,000/-, mentioned therein, is, only and only, for the purposes of maximum ceiling, or, limitation, for consideration of the wages of the injured, or, the deceased, as the case may be, for computing the compensation, as prescribed by, either, Clause (a), or, Clause (b), of Sub-section (1), and, nothing, there beyond.
20. Nowhere therein, it is mentioned, even remotely, that, the maximum wages of Rs. 2,000/-, shall be considered. For example, if the wages of a workman are Rs. 3,000/-, or, Rs. 4,000/-, or, more than that, in any of such cases, still, notwithstanding, only, maximum amount of Rs. 2,000/- only, has to be considered, for the purposes of computation of compensation, as per either of said Clauses (a) and (b) of the said Sub-section (1) of Section 4 of the said W.C. Act, 1923. Hence, I do not agree with the learned Counsel for the applicant, that, a sum of Rs. 2,000/- shall be considered, as wages, for computation of the compensation, prior to the amendment thereof.
21. The same reasonings and the same findings, as are set forth in the immediately preceding paragraph, will, mutatis mutandis, apply to the said Explanation II, wherein, by Amendment Act 46 of 2000, which came into force, on 8-8-2000, the said sum of Rs. 2,000/- was substituted by a sum of Rs. 4,000/-.
22. Hence, the wages of the applicant cannot be fixed, either, at Rs. 4,000/-, or, at Rs. 2,000/-, as the case may be, either, before, or, after, amendment of the said Explanation II of the said Section 4(1) of the said W.C. Act, 1923.
23. However, having regard to realities and realistic and pragmatic approach to the question involved, I am of the opinion, that, fixation of the wages of the Driver at Rs. 2,500/- per month will be just and equitable and will be modest and will be inconsonance with the realities and the realistic approach to the question involved. Hence, the wages of the applicant, as a Driver, is fixed at Rs. 2,500/- per month as against Rs. 2,000/- fixed by the Commissioner.
24. The learned Counsel for the applicant vehemently urged, that, even though, the applicant is entitled for 100% compensation, on the ground of total disablement, within the, factual and legal, meaning, scope and ambit, as also, purview, of Clause (1) of Sub-section (1) of Section 2 of the said W.C. Act, 1923, still, notwithstanding, the Commissioner, erroneously and illegally, awarded less compensation, than that, and that, hence, the same is unsustainable at Fact and Law, and that, hence, the same has to be corrected, as such, to 100% compensation, etc., etc.
25. To substantiate the foregoing version of his, the learned Counsel for the applicant relied upon ten Rulings, set forth, as under:
(1) (Maghar Singh v. Jashwant Singh), delivered, inter alia, interpreting Sections 3(1), 2(1)(e) and (n), 4(1)(b) and 4-A(3), and Schedule IV of the Workmen's Compensation Act, 1923; (2) 2001 (6) ALD 447 (United India Insurance Company Limited, Nizambad v. Mekala Adavaiah and Anr.); (3) (Oriental Insurance Company Limited, Hyderabad v. Koti Koti Reddy and Anr.); (4) (Pasupuleti Rama Rao v. Pothiboina Durga Rao and Anr.);
(5) (United India Insurance Company Limited Hyderabad v. Ramulu and Anr.);
(6) (Lingamplalli Rajam (died) by L.Rs. v. Colliery Manager, Morgan's Pit Singareni Colleries Company Limited); and (7) (Rayapati Venkateswara Rao v. Manti Sambasiva Rao and Anr.).
(8) (Janatha Modern Rice Mills v. G. Satyanarayana).
(9) (The New India Assurance Company Limited rep. by Divisional Manager, Hyderabad v. Kotam Appa Rao and Anr.), (10) (Ballari Rajendra v. G. Gurumurthy and Ors.).
26. The foregoing Rulings, inter alia, interpreted Clause (1) of Sub-section (1) of Section 2 of the said W.C. Act, 1923, postulating the scope, ambit and purview thereof, inter alia, as to, what is meant by total disablement, as contemplated thereby, vis-a-vis, etc.
27. Also, the learned Counsel for the applicant relied upon (DB) (Charan Singh v. G. Vittal Reddy), delivered, inter alia, interpreting Section 4(1)(c) of the said W.C. Act, 1923, and, inter alia, postulating, that, any qualified Doctor can assess the loss of disability, vis-a-vis, the earning capacity, and that, it is not necessary, that, he should be the same Doctor, who treated the injured, etc., etc.
28. The applicant is a Driver of the said accident Tipper, by profession. The medical, evidence, oral and documentary, proved, that, the applicant sustained 40% partial permanent disability, as well as, loss of earning capacity of 50% and functional disability 45% and that, the applicant cannot work as Driver with that disability, in future. However, the Commissioner reduced the same only to 40% loss of earning capacity, without any basis, whatever. Therefore, it should be recorded, that, the applicant sustained loss of 100% earning capacity, instead of 40%, as found by the Commissioner.
29. However, when the foregoing material, as to disability, etc., of the applicant, is examined, in the light of the well-settled legal position, being postulated by this High Court, from time to time, uniformly, as set forth in Para 25, supra, then, it will, factually and legally, ipso facto, follow, that, a finding has to be recorded, straight away, that, the applicant sustained total disablement, within the meaning of the said Clause (1) of Sub-section (1) of Section 2 of the said W.C. Act, 1923, and that, hence, he will be entitled to compensation, on the basis of 100% loss of earning capacity.
30. So, therefore, the compensation payable to the applicant has to be calculated, afresh, on the wages now fixed at Rs. 2,500/-per month, as set forth in Para 23, supra, vis-a-vis 100% loss of earning capacity. When so done, Rs. 2,500/- x 60/100 x 175.54, then, the total compensation payable will come to Rs. 2,63,310/-.
31. Hence, the applicant will be liable to the foregoing compensation, arrived at in Para 30, supra.
32. Under Clause (a) of Sub-section (3) of Section 4-A of the said W.C. Act, 1923, it is mandatory, on the part of the said Commissioner, to award interest, that too, at the statutory minimum rate of 12%, per annum, as can directly be seen therefrom. However, the said Commissioner, erroneously, failed to award any interest, or, at that rate, etc. Hence, this Court has to award the same.
33. By Amendment Act 14 of 1995, Section 4-A(3)(a) of the said W.C. Act, 1923, was amended in the year 1995, inter alia, fixing, statutorily, the minimum rate of interest, which is irreducible, at 12%, per annum.
34. As can directly be seen from that amended provision, after the amendment in 1995, the minimum rate of interest is 12%, per annum, which can be enhanced, or, increased, to more than 12%, per annum, provided, the facts and circumstances, prescribed therein, prevail. Lest, not. The special circumstances, mentioned therein, are not prevailing, in the case, on hand. In any case, minimum of 12%, per annum, rate of interest, cannot be reduced.
35. The learned Counsel for the applicant relied upon the four Rulings as to interest, etc., as under.
36. In 2000 (5) ALD 83 (SC), Kashibai Rambai Patel v. Shahabai Spmabhai Paramar and Ors. (SC), delivered, inter alia, interpreting Sections 4-A and 19 of the said WC Act, 1923, and, inter alia, postulated, that, interest can be recovered from the Insurance Company, even though, it cannot be made liable to pay penalty, etc.
37. The Supreme Court, in Ved Prakash Garg v. Premi Devi and Ors., 1997 (6) ALD (SCSN) 6 = (1) 1998 ACJ 1 and Meghar Singh v. Jashwant Singh, ; inter alia, interpreting Section 4-A(3)(a) of the said W.C. Act, 1923, awarded interest, from the date of the accident, till realization. Also, in Midicharla Ramanamma and Ors. v. V. Naga Prathap and Anr., 2003 (1) ALD 594, this High Court, while interpreting the said same provision, awarded interest, from the date of accident, till actual realization.
38. The learned Counsel for the Insurance Company relied upon the Orders of the Supreme Court, reported in Record of Proceedings in W.P.No. 341/2003, between P.J. Narayan v. Union of India and Ors., inter alia, urging, that, the Insurance Company is not liable to pay any interest, whatever, on its basis, etc. 38A. However, a direct examination of that Report, inter alia, will reveal, that, the same is the outcome of writ proceedings, wherein, the petitioner therein filed that writ petition, against Union of India and others, to delete the clause in the Insurance Policy, which provides, that, in cases of compensation under the Workmen's Compensation Act, 1923, the Insurance Company will not be liable to pay interest. Full facts of the case are not available in that Report. However, therein, the Supreme Court, finding, that, there is no substance in the writ petition, dismissed the writ petition. However, therein, the Supreme Court, inter alia, observed, that, because, it is a matter of contract between the party and the Insurance Company, the Insurance Company is entitled to provide, by contract, that, it will not take any liability, to pay interest, etc.
39. On the basis of that Ruling, it is urged for the Insurance Company, that, Insurance Company is not liable to pay any interest, etc.
40. However, in the face of the foregoing Rulings of the Supreme Court, referred to in Paras 36 and 37, supra, vis-avis, the orders of the Supreme Court, referred to in Para 38, supra, I am of the opinion, that, interest has to be awarded.
41. Hence, following the same, I also award interest for this period, at 12%, per annum, from the date of the accident, till the actual payment, or, realization.
42. In the two foregoing Rulings, referred to in Para 37 supra, the Supreme Court awarded interests, respectively, at 6%, and, 9%, per annum, because, the respective accidents, covered thereby, occurred, much prior to the aforesaid amendment of the said Section 4-A(3)(a) of the said W.C. Act, 1923, in the year 1995.
43. Hence, the impugned orders, set forth in Para 2, supra, have to be modified and corrected, accordingly, as afore-found, and, as is being done, hereunder.
44. Hence, the High Court doth hereby adjudicate upon the civil miscellaneous appeal, as under:
(I) Modify the orders, dated 31-7-2003, of the Commissioner for Workmen's Compensation, Nizamabad, made in W.C. No. 83 of 2002, of his file, and set forth in Para 2, supra, as under:
(a) Enhance the total compensation awarded thereby, from Rs. 84,259/-, to Rs. 2,63,310/- (Rupees Two lakhs sixty three thousand three hundred and ten only);
(b) Award simple interest thereon, at 12% per annum, from the date of accident, till actual realization thereof; (II) Not interfered with the foregoing impugned orders, on any other aspect, or, aspects; and (III) Direct the parties to the CMA to bear their respective costs, incurred herein.