Punjab-Haryana High Court
New India Assurance Company Limited vs Manphool Singh And Ors. on 17 December, 2007
Equivalent citations: (2008)149PLR706
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. Though the case was listed for consideration of the application for vacation of stay, however, keeping in view the nature of the controversy, this matter has been heard for final disposal with the concurrence of counsel for the parties.
2. Insurance-Company, the appellant herein has challenged award dated 28.2.2997 passed by the Commissioner, under the Workmen's Compensation Act, 1923, Hisar (hereinafter referred to as "the Commissioner") awarding the compensation to the tune of Rs. 4,72,944/-, interest to the tune of Rs. 2,01,001/- and the expenses to the tune of Rs. 2,000/-, total Rs. 6,75,945/-. The award further directs the Insurance Company appellant herein, to deposit the amount within 30 days from the date of order, failing which the whole amount will be recovered alongwith 15% per annum interest from the date of order upto the date of payment.
3. Though the Insurance Company has challenged the award as a whole, however, during the course of arguments and keeping in view the findings recorded by the Commissioner, on the basis of the facts, learned Counsel appearing for the Insurance Company has ultimately confined his arguments to the question of payment of interest. It has been urged on behalf of the appellant that the Commissioner has awarded interest from the date of accident at the rate 10% per annum and not from the date of order. According to the learned Counsel, interest under Section 4A(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as "the Act") becomes payable from the date of the order and not from the date of the accident. With a view to appreciate the contention of the appellant, it is deemed appropriate to examine the provisions of Section 4A(1) of the Act which is reproduced here-in-under:
4A Compensation to be paid where due and penalty for default.- (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be, without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due the Commissioner shall:
(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; and
(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears, and interest thereon pay a further sum not exceeding fifty per cent of such amount by way of penalty;
Provided that an order for the payment of penalty shall not be passed under Clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.
Explanation.- For the purposes of this sub-section, "scheduled bank" means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934(2 of 1934).
(3A) The interest and penalty payable under Section (3) shall be paid to the workman or his dependant, as the case may be).
4. Compensation payable under this Act is required to be determined in accordance with the provisions of Section 4 and Section 4A of the Act which was introduced by various amendments provide for payment of compensation when due and interest and penalty for default. Under Sub-section (1) of Section 4A, the compensation has to be paid as soon as it falls due. In terms of Sub-section (2) of Section 4A, the employer is under an obligation to make provisional payment to the extent of liability which he accepts where he does not accept the entire liability claimed and the amount of such admitted liability is required to be deposited with the Commissioner. Sub-section (3) of Section 4A provides for payment of interest in default of payment of compensation within one month from the date it falls due. In default the Commissioner is empowered to impose simple interest at the rate of 12% per annum in addition to the amount of the arrears or such higher rate not exceeding maximum of the lending rates of any Scheduled Bank. Sub-section (3) of Section 1989 (44) E.L.T. 3 of the Act further empowers the Commissioner to levy penalty in addition to arrears and interest, if he is of the opinion that there is no justification for the delay. However, no penalty can be imposed, without giving reasonable opportunity to the employer, in view of the proviso appended to Sub-section (3) of Section 1989 (44) E.L.T. 3 of the Act.
5. According to the learned Counsel for the appellant, compensation under Section 1989 (44) E.L.T. 3 falls due only on adjudication of the claim (compensation) by the Commissioner. It has been vehemently argued that in the present case, the liability for the payment of compensation was completely disputed and unless the liability is finally determined by the Commissioner, no amount can be said to be due and thus interest, if any, becomes payable only from the date of the adjudication i.e. the passing of the award by the Commissioner. Learned Counsel for the appellant has relied upon a judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Mubasir Ahmed (2007-2)147 P.L.R. 188. This judgment has been rendered by two Hon'ble Judges of the Hon'ble Apex Court. In this case, Hon'ble Apex Court, while interpreting Section 4A(1) and the expression "falls due" used herein, observed as under:
9. Interest is payable under Section 4A(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 4A was dealt with by this Court in Maghar Singh v. Jashwant Singh . By amending Act 14 of 1995, Section 4A 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 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 4A(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 4A. 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.
(Emphasis supplied)
6. To the contrary, learned Counsel appearing for the claimants-respondents has relied upon a larger Bench judgment of the Hon'ble Apex Court in the case of Pratap Narain Singh Deo v. Srinivas Sabata . This judgment has been rendered by four Hon'ble Judges of the Apex Court. In this judgment also, the Hon'ble Apex Court has considered the expression "falls due" and has observed as under:
6. It has next been argued that the Commissioner committed a serious error of law in imposing a penalty on the appellant under Section 4A(3) of the Act as the compensation had not fallen due until it was "settled" by the Commissioner under Section 19 by this impugned order dated May 6, 1969. There is however no force in this argument.
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.
(Emphasis supplied).
7. It may be noted here that when the judgment in the case of National Insurance Co. Ltd. v. Mubasir Ahmed and Anr. (supra) was delivered, the judgment in the case of Pratap Narain Singh Deo v. Srinivas Sabata (supra) was not brought to the notice of the Hon'ble Supreme Court. The judgment in the case of National Insurance Co. Ltd. v. Mubasir Ahmed (supra) was rendered by two Hon'ble Judges of the Hon'ble Supreme Court whereas the judgment in the case of Pratap Narain Singh Deo v. Srinivas Sabata (supra) was rendered by four Hon'ble Judges of the Supreme' Court. It is settled principle of law that under Article 141 of the Constitution of India, judgment of the Hon'ble Apex Court creates a binding precedent on all the courts in the country. However, in the event of conflict between two judgments on any question of law or interpretation of statute, it is the later view which needs to be followed, provided both the decisions are of the Bench of equal strength. In the event, the conflict is between a judgment of a Constitution Bench rendered earlier and a Hon'ble Division Bench delivered later in time, the Constitution Bench judgment is to be followed under the doctrine of stair decisis. Otherwise where the conflict is between a larger Bench judgment and a Bench of lesser strength, the opinion of the larger bench is to be followed, notwithstanding the fact that the decision of the larger bench is earlier in time. This issue came up for consideration before the Hon'ble Apex Court in the case of the State of U.P. v. Ram Chandra Trivedi wherein it has been observed as under:
22. ...It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975, decided on July 30 1976 to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.
7.1. In another judgment in the case of Commissioner of Income Tax, Bihar v. Trilok Nath Mehrotra , the Hon'ble Supreme Court has observed as under:
4. We do not find any conflict in the law laid down in the case of R.M. Chidambaran Pillai with the law laid down in the earlier two cases. The decision in the case of Raj Kumar Singh Hukam Chandji was rendered by a Bench of three Judges. Therefore, even assuming that there was a conflict between that decision and the decision rendered in Chidambaram Pillai case which was rendered by a Bench of two Judges, the decision of the larger Bench will prevail.
8. In view of the law laid down by the Hon'ble Apex Court regarding the binding precedent under Article 141 of the Constitution of India, I am of the considered view that the judgment in the case of Pratap Narain Singh Deo v. Srinivas Sabata (supra) will create a binding precedent regarding the interpretation of expression "falls due" under Section 4A(1) of the Act and amount of compensation becomes due on expiry of one month from the date of accident. Thus, interest becomes payable not from the date of order/award of the Commissioner, but on expiry of one month from the date of injuries sustained by the workmen. Accordingly, I uphold the judgment of the Commissioner and dismiss this appeal with no order as to costs.