Himachal Pradesh High Court
The New India Assurance Company Limited vs Babu Ram And Others on 10 August, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
FAO No. 161 of 2017
.
Decided on : 27.7.2017
The New India Assurance Company Limited
.. Appellant
Versus
Babu Ram and others
..Respondents
___________________________________________
Coram
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? yes
________________________________________________
For the petitioner : Mr. Praneet Gupta, Advocate.
For the respondent(s) :Mr. Dhairya Sushant and Mr.
Prashant Chaudhary,
Advocates, for respondent
No.1.
None for respondents No. 3
and 4.
Sureshwar Thakur, Judge (oral)
The insurance company is aggrieved by the award of 7.10.2016, recorded by the learned Commissioner under Employee's Compensation Act , 1923, Jawali, District Kangra, H.P. in claim petition No. 157 of 2011, whereby he assessed upon the claimant/respondent No.1 herein, compensation amount borne in a sum of Rs. 10,26,400/-, also ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 2 fastened the apposite liability in respect of its liquidation upon the insurer. Uncontrovertedly, the demise of one Dalbir Singh, son of the appellant .
occurred during the course of his performing employment under his employer. It is also not disputed that the claimant was dependant upon the earnings of his deceased son. The relevant mishap which begot his demise evidently occurred on 14.9.2009. The learned counsel for the appellant contends that the learned Commissioner while computing compensation upon the claimant had proceeded to irrevere the mandate of the applicable hereat statutory tenet borne in Explanation-II occurring in sub-Section (4) of the Workmen's Compensation Act, hereinafter referred to in short as "the Act", Act whereof given its prevalence at the time of occurrence of the ill-fated mishap warranted its application hereat, than application of the mandate(s) borne in the Employees' Compensation Act, legislative enactment whereof came subsequently into force in the year 2010. He further espouses that the learned Commissioner, inaptly on anvil of a notification 2 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 3 issued by the Central Government in exercise of statutory powers conferred upon it under Section 4(1)(b) of the Act, whereby explanation-II borne in .
Section 4 of the "Act" stood deleted, unbefittingly proceeded to assess compensation, whereas with the apposite notification issued by the Central Government evidently coming into force on 10.1.2010, hence, obviously subsequent to the demise of one Dalbir Singh rendered any reliance thereon besides application vis-à-vis the petition at hand, to be grossly inappropriate.
2. Tritely, the legal conundrum which warrants an answer being meted thereto, is, of the respective applicability(s) hereat of explanation-II borne in Section 4 of the Act or applicability of a notification subsequent thereto issued by the Central Government, whereby the aforesaid explanation stood deleted. Any answer to the aforesaid conundrum would hold a bearing upon the validity of the quantum of compensation amount assessed in the impugned award. Significantly also, the date of demise of one Dalbir Singh during the course of his 3 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 4 performing employment under his employer, is also of utmost importance, for gauging therefrom whether explanation-II which was evidently in prevalence .
thereat or the subsequent thereto notification issued by the Central Government, whereby it stood deleted, are respectively applicable, for thereupon fathoming the validity of the quantum of compensation assessed under the impugned award. Undisputedly, the notification issued by the Central Government, whereby Explanation-II occurring in Section 4 of the Act was apparently not given any retrospective effect, wherefrom its inevitable to conclude that the Central Government in exercise of powers of delegated legislation hence issuing, it had not intended to explicitly cover the period whereat the demise of one Dalbir Singh occurred. In a like situation, this Court in a judgment reported in Latest HLJ 2006 (HP) 456, New India Assurance Co.Ltd versus Nand Lal and another, relevant paragraph 7 whereof is extracted hereinafter:
"7. This Court has also consistently taken the view that the rights of the parties are governed by law as its exists on the date of the 4 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 5 accident. The above view has also been taken in a judgment titled as United Insurance Company Ltd. v. Smt. Nako alias Naiku Devi, 1996 (1) Sim.L.C. 370 wherein it is held as .
follows:
"8. We may refer to Maxwell on interpretation of statutes. Twelth Edn.P. 215, regarding retrospective operation of statures in the following terms:
" Upon the presumption that the legislature does not intend that is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary distinct implication."
9. Applying the above settled law of interpretation, we hold that as the accident took place prior to the amendment of the Schedule IV of the Act, the compensation has to be assessed according to unamended Schedule. We say so as if 5 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 6 retrospective operation is given to the amended Schedule, it will take away the rights of the parties, namely, the owner as well as the Insurance Company, in this .
regard. Therefore, the Commissioner erred in law in assessing the compensation under the amended Schedule IV", also a firm conclusion exists therein that rights of the parties are governed by law as it is existed on the date of accident. Meting deference to the aforesaid legal proposition propounded by this Court in the aforesaid citation, begets an inevitable conclusion that the date of demise of one Dalbir Singh, is of singular utmost relevance in determining whether explanation-II borne in Section 4 of the Act or subsequent thereto notification issued by the Central Government, whereby it stood deleted, hence hereat hold(s) sway or prevalence. Corollary of the aforesaid is that when evidently the demise of one Dalbir Singh occurred during the operation besides prevalence thereat, of explanation-II borne in Section 4 of the Act, thereupon the mandate occurring therein enjoined reverence being meted thereto rather than reverence being 6 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 7 meted by the learned Commissioner vis-à-vis the subsequent thereto notification issued by the Central Government whereby explanation-II stood deleted.
.
Contrarily, the learned Commissioner proceeded to inaptly revere the mandate of the apposite notification issued by the Central Government on 18.1.2010, whereat the demise of one Dalbir Singh had not evidently occurred, significantly also when the aforesaid date does not constitute the relevant date for making any determination in respect of the respective applicability(s) hereat of explanation-II borne in the "Act" or of the apposite notification, which stood issued subsequent thereto. Also, when operation of the apposite notification was not explicitly given any open retrospective effect, thereupon also any compliance meted thereto by the learned Commissioner, cannot be held to be holding any legal tenacity.
3. However, at this stage, Mr. Dhairya Sushant and Mr. Prashant Chaudhary, Advocates appearing on behalf of the respondent/claimant, vehemently contend that the subsequent notification issued on 7 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 8 18.1.2010 by the Central Government whereby benefits stood bestowed upon the claimants' also whereby explanation-II occurring in the "Act" stood .
deleted, thereupon the bestowal of benefits thereunder upon the claimants "dehors" no explicit retrospectivity being accorded thereto, yet warranting their imperative ensuel vis-à-vis the claimants', beneficiaries thereto, conspicuously when it would hence facilitate the salutary beneficent purpose of the benevolent subsequent thereto apposite notification issued by the Central Government. Also, they contend that the Rules of interpretation in respect of beneficent benevolent provisions held in the apposite notification, enjoin(s) retrospectivity being accorded thereto "dehors" no explicit retrospective effect thereto being openly pronounced in the apposite rules/notification(s). In making the aforesaid submission, the learned counsel appearing for the respondent/claimant relies upon a judgment of the Hon'ble Apex Court reported in AIR 1960 Supreme Court Cases (V 47 C 166) 937, Mohandeolal Kanodia versus The Administrator General of West Begal 8 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 9 relevant paragraph whereof stands extracted hereinafter:
"Mr.Pathak has repeatedly stressed this and .
has asked us to construe S.1(2) in a way that would retain the benefits of S.28 to tenants whose applications remained to be disposed of on the crucial date. He has in this connection emphasized the fact that the amendment Act itself is a piece of beneficent legislative and that the amendments made by Ss. 2, 3,5 and 9 all extend to tenants benefits to which they would not have been entitled under the original Act.
This extension of further benefits to tenants, he says, is a guiding principle of the amending legislation. He points out also that except as regards such pending applications under Section 28 the effect of Section 1(2) of the amending Act will be to give the extended benefits to tenants in pending proceedings. It will be incongruous, he argued, that while all tenants stand to benefit by the amending legislation only those whose applications under Section 28 have, for no fault of theirs, remained pending would be deprived of the benefit in the amending Act of Section 28. It is difficult not to feel sympathy for these tenants. As rule of interpretation of beneficent legislation that incases of ambiguity the construction should be accepted in preference to the one to advance 9 ::: Downloaded on - 11/08/2017 23:57:04 :::HCHP 10 the beneficent purpose of legislation courts must not however yield to the temptation of seeking ambiguity when there is none. On a careful consideration of the language used by .
the Legislature in S.1(2) ambiguity. The language used here has one meaning only and that is that the Act in its new shape with the added benevolent provisions, and minus the former benevolent provisions in Section 28 has to be applied to all pending proceedings, including execution proceedings and the proceedings pending under Section 28 of the original Act on October 21, 1952. There is therefore no scope for applying in this case the principles of interpretation which are applicable in cases of ambiguity."
4. The afore-referred extracted paragraph of the judgment(supra) voices a legal proposition that where the object of any legislative enactment is to confer benefit(s) upon a particular class of persons also when the apposite legislative enactment holding therein benevolent beneficent provisions "when" manifestly discloses ambiguity in respect of a construction vis-v-
vis retrospectivity or prospectivity thereto being imputed by the legislature, thereupon the sound rule 10 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 11 of interpretation enjoins purveying an interpretation thereto holding leanings vis-à-vis preserving the apposite benefit(s) besides preserving the beneficent .
purpose(s) of the enactment, rather than defeating the salutary object of the subsequent enactment, also therein a pronouncement occurs that for ensuring the preservation of the benefit(s) of the benevolent provision(s) held in the apposite subsequent enactment, warrants benefits thereto being vested upon or ensuing vis-a-vis pending proceedings.
However, the aforesaid conclusion(s) drawn by the Hon'ble Apex Court obviously stand confined within the ambit of the facts with which it stood beset thereat, significantly the visible fact prevailing thereat unfolds, that no ambiguity being noticeable in respect of the benefit(s) of benevolent provisions meted in the apposite subsequent thereat legislative enactment being not afforded any retroactive effect by the legislature, rather the Hon'ble Apex Court on facts available thereat also on its closely reading the language of the apposite legislative enactment hence concluded that its language unfolded that hence it 11 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 12 vividly bestowing benefit(s) of its benevolent provisions upon the litigants concerned "embroiled" in pending litigations, also benefit(s) thereof traveling upto .
execution proceedings. The aforesaid factual scenario prevailing thereat does not unveil that the Hon'ble Apex Court in the judgment (supra) had propounded a legal proposition that despite the apposite legislative enactment not explicitly bestowing its benefits retroactively, thereupon too, its apposite beneficent provisions being amenable to an interpretation of theirs' being meted retroactive effect. While applying the aforesaid ratio decidendi embodied therein, inasmuch as only on an evident ambiguity being palpably borne in the relevant notification, significantly in respect of it being given retroactive or only prospective effect, thereupon dehors no retroactive effect being meted thereto, yet only for preserving all the benefits bestowed therein, thereupon the apposite benefits held therein being meted retroactive effect. Nowat, it is evident from the plain language of the apposite 12 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 13 notification issued by the Central Government, notification whereof stood issued subsequent to the demise of one Dalbir, whereby explanation-II .
occurring in Section 4 of the "Act" stood deleted, of its visibly not holding any noticeable palpable ambiguity, significantly in respect of the Central Government, in the exercise of its delegated legislation hence issuing it, it giving it only prospective effect and not retrospective effect. Moreover, on a reading of the notification, it is evidently clear that the Central Government never intended to confer its benefit(s) upon claimants' concerned or the successors-in-
interest of the deceased concerned, even when respectively the disabling injuries or the demise of the workman concerned occurred prior thereto. In sequel, any relieance placed thereon by the learned counsel for the respondent, for theirs thereon concerting to scuttle besides erode the effect of the judgment (supra) delivered by this Court, is wholly inapt besides the force of the contention aforesaid is also enfeebled by theirs' remaining oblivious to the provisions borne in Section 4(A) of the Act, Sub-
13 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 14Section 1 of statutory provisions whereof, stands extracted hereinafter:
"4-A Compensation to be paid when .
due and penalty for default--Compensation under Section 4 shall be paid as soon as it falls due".
wherein a statutory liability is fastened upon the employer/insurer to pay compensation to the workman concerned or to the successor(s)-in-interest of the deceased workman concerned "as soon as it falls due". This Court in a judgment reported in ILR 1986 (15) 842, Ram Dulari Kalia versus H.P. State Electricity Board and another, relevant paragraph-8 whereof is extracted hereinafter:
"Against the backdrop aforesaid, it is manifest that in the present case duty to pay the compensation at the rate provided in Section 4 arose under sub-section (1) of Section 4-A of the Act as soon as the accident resulting in the injury to the deceased workman and in his consequential death occurred and that the respondents being in default in paying the compensation due under the Act within one month from the said day, the discretion conferred on the Commissioner under sub-14 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 15
Section (3) of Section 4-A to award interest on the compensation amount in accordance with law was required to be exercised reasonably and in a judicial manner after .
taking into consideration all the relevant factors and that if, in her considered opinion, there was no justification for the delay, the penalty was also required to be ordered to be recovered. The Commissioner has held, as earlier pointed out, that since the respondents had admitted the liability to pay the compensation whatever is to be awarded" and that they had also deposited the amount of compensation in the Court, the claim with regard to the payment of interest was not justified. The question of imposition of penalty does not appear to have been considered at all presumably on the same ground. The question for determination is whether the award suffers from any error of law based, inter-alia, upon the misconstruction of the relevant statutory provision, has propounded a legal expostulation, that the signification borne by the statutory parlance "as soon as it falls due" occurring in Section 1 of Section 4(a) of the Act "being of" the employer or in case he holds the relevant insurance cover from the insurer 15 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 16 concerned qua both being jointly and severably liable "to" immediately on occurrence of the ill-fated mishap, liquidate the compensation amount vis-à-vis the .
injured workman concerned or vis-à-vis successor(s)-
in-interest of the deceased workman concerned. The effect of the aforesaid pronouncement, is of the relevant statutory liability(s) warranting theirs being fastened upon the employer concerned or upon the insurer concerned "immediately" on demise of one Dalbir Singh, who as aforestated died on 14.9.2009, whereat explanation-II existed on the statute book, obviously when thereat the apposite notification issued subsequent thereto was not borne on the statute book, thereupon the beneficent benevolent provision(s) held therein is rendered inapplicable hereat nor the apposite notification deleting apposite explanation-II from the statute book, holds any consequence in computing compensation amount payable to the claimant.
5. In aftermath, the mandate of explanation-II warranted deference being meted thereto by the learned Commissioner in the latters' computing 16 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 17 compensation amount vis-à-vis the claimant, than his contrarily proceeding to inaptly apply the mandate of the subsequent thereto issued apposite notification, .
whereby the aforesaid explanation stood deleted. In his making an inapt reliance upon the apposite notification also his hence miscomputing compensation amount vis-à-vis claimant he has committed a gross illegality. Substantial question No.2 is answered in favour of appellant. The impugned award is modified accordingly.
6. Consequently, while revering the mandate of Section 4 of sub-Section (II) of the workmen's Compensation Act, wherein it is postulated that where the monthly wages of a deceased workman exceed 4,000/- thereupon the wages drawn by the deceased from his relevant employment for the purpose of applying thereon, the relevant statutory factor, warranting theirs being pegged in a statutory sum of Rs. 4000/-.
7. Besides consequently by also revering the mandate of clause (a) of sub-Section 1 of Section 4 of the Act, wherein it is postulated that where death 17 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP 18 ensues from an injury befalling a workman, thereupon 50% of the statutory wages comprising the relevant sum(s) whereon the relevant factor is to be applied, .
thereupon:
430560= (2000x 215.28) is computed as compensation amount payable to the claimant.
8. In aftermath, the impugned award is modified and the claimant is held entitled to compensation amount of Rs. 430560 along with interest @ 12 % per annum from one month elapsing since the date of accident till, its realization. All pending application(s), if any are also disposed of.
(Sureshwar Thakur) Judge July 27, 2017 Kalpana 18 ::: Downloaded on - 11/08/2017 23:57:05 :::HCHP