Gauhati High Court
Oriental Insurance Co. Ltd. vs Malati Devi And Ors. on 17 February, 2000
Equivalent citations: 2001ACJ240, [2000(87)FLR569], (2000)IILLJ432GAU
Author: A.K. Patnaik
Bench: Brijesh Kumar, A.K. Patnaik
JUDGMENT A.K. Patnaik, J.
1. This is an appeal under Clause-15 of the Letters Patent Appeal against the judgment dated December 7, 1998 of the learned single Judge of this Court in MA(F)No. 287 of 1997.
2. The facts briefly are that the respondent No. 1, Smt. Malati Devi, filed WC Case No. 29/93 against the appellant and the respondent No. 2, Shri Pawan Kumar Agarwal, claiming compensation under the Workmen's Compensation Act, for the death of her husband late Lakhindar Singh and in the judgment and award dated October 4, 1997, the Commissioner for Workmen's Compensation, Kamrup, Guwahati, held, inter alia, that late Lakhindar Singh died on July 22, 1992 in an accident in course of his employment under the respondent No. 2, Shri Pawan Kumar Agarwal, while driving the Truck No. AMK3271 which was insured with the appellant-Insurance Company and awarded compensation of Rs. 1,97,060.00 in favour of the respondent No. 1 calculated in accordance with the provisions of the Workmen's Compensation Act, 1923, as amended by the Amendment Act, 1995 and interest at the rate of 12% per annum on the said amount of compensation from the date of the filing of the claim case on January 30, 1993. Aggrieved by the said judgment and award of the Commissioner for Workmen's Compensation, Kamrup, Guwahati, the appellant filed MA(F) No. 287/97 before the learned single Judge contending inter alia, that the Amendment Act, 1995, was prospective and was not retrospective and, therefore, not applicable to the accident in the present case which took place in the year 1992. By judgment dated December 7, 1998, the learned single Judge while accepting the position that the Amendment Act, 1995, was not applicable to an accident which occurred earlier to the amendments, held that he was not inclined to interfere with the Award because some more money should be available to the poor family of the workman and that there was no substantial question of law involved in the appeal. Aggrieved by the said judgment of the learned single Judge, the appellant has preferred the present appeal.
3. Mr. D. Sur, learned counsel for the appellant, submitted that in Kerala State Electricity Board and Anr. v. Valsala K and Anr. etc. (1999-II-LLJ-1112) (SC) the Supreme Court has held that the injured workman was entitled to get compensation, the moment he suffers personal injury of the type contemplated by the provisions of the Workmen's Compensation Act and it is the amount of compensation payable on the date of accident and not the amount of compensation payable on account of amendments made in the year 1995 which is relevant. He submitted that since the accident in the present case took place on July 22, 1992, the amount of compensation that was payable has to be calculated in accordance with the provisions of the Workmen's Compensation Act as it stood prior to the amendments made in the year, 1995. Mr. Sur argued that the learned single Judge ought not to have refused to interfere with the award on the ground that some more money should be available to the poor family of the workman. He further stated that in a large number of cases now pending before the Courts the question arises whether the amendments made in 1995 to the Workmen's Compensation Act, would be applicable to accidents which have occurred prior to September 15, 1995 when the Amendment Act of 1995 came into effect and the appellant- Insurance Company will suffer if the compensation is awarded for the accident which occurred.prior to September 15, 1995 in view of the amendments made with effect from September 15, 1995.
4. Mr. O.P. Bhati, learned counsel for the respondent No. 1, on the other hand, submitted that while the law on the subject has been clarified by the Supreme Court in the case of Kerala State Electricity Board v. Valsala K. & another (supra) cited by Mr. Sur, in the present case, the respondent No. 1 is the wife of a driver killed in the accident and she has already withdrawn the entire compensation amount of Rs. 1,97,060.00 deposited with the Commissioner for Workmen's Compensation Act, Kamrup, Guwahati, but she has not withdrawn the interest on the said amount awarded with effect from the date of filing of the claim, i.e. January 30, 1993. Therefore, at this stage, if the respondent No. 1 is calleld upon to refund a portion of the said amount of Rs. 1,97,060.00, she will not be able to do so on account of her poverty. He, therefore, suggested that ends of justice will be met if interest of 12% per annum on Rs. 1,97,060.00 calculated from January 30, 1933 is deleted from the award. Relying on the decision of the Supreme Court in the case of New Kenilworth Hotel (P) Ltd. v. Orissa State Financial Corporation, AIR 1997 SC 978, Mr. Bhati further submitted that the present Letters Patent Appeal would have been maintainable only if a declaration was made by the learned single Judge who passed the impugned judgment that the case was a fit one for appeal but there is no such declaration in this case. He also relied on paragraph 11 of the judgment of the Supreme Court in the aforesaid case in support of his contention that the Letters Patent Appeal was not maintainable.
5. We are unable to accept the aforesaid submission of Mr. Bhati that this appeal was not maintainable under Clause 15 of the Letters Patent Act, against the impugned judgment of the learned single Judge. In Rajesh Kumar Agarwalla v. Yan Tikhak and Ors., 1998 (1) GLT 289, a Division Bench of this Court considered the decisions of the Supreme Court in the case of New Kenilworth Hotel (P) Ltd. v. Orissa State Electricity Board (supra) cited by Mr. Bhati and has held that a declaration of the single Judge who passed the impugned judgment that the case is a fit one for appeal would be necessary if the appeal before the Single Judge was a Second Appeal from a judgment and decree passed in exercise of appellate jurisdiction. But the declaration was not necessary where the Letters Patent Appeal arises from a judgment of a single Judge of the High Court passed in a First Appeal in exercise of appellate jurisdiction against a judgment and decree passed in exercise of original jurisdiction. In the said decision in the case of Rajesh Kumar Agarwalla v. Yan Tikhak (supra), the Division Bench further distinguished the observations of the Supreme Court in paragraph 11 of the judgment in the case of New Kenilworth Hotel (P) Ltd. v. Orissa State Financial Corporation (supra) stating that those observations were made in respect of an appeal which was barred under Section 104(2) of the Code of Civil Procedure.
6. In the present case, the judgment of the learned single Judge was passed in a First Appeal against the judgment and award of the Commissioner for Workmen's Compensation under the Workmen's Compensation Act, 1923. Therefore, no declaration of single Judge who passed the impugned judgment was required. Since the judgment of the learned single Judge was delivered in exercise of appellate jurisdiction of this Court under the Workmen's Compensation Act, 1923 and not under-Sub-section (1) of Section 104 of the Code of Civil Procedure, 1908, this appeal was not barred under Sub-section (2) of Section 104 of the Code of Civil Procedure. Therefore, the contention of Mr. Bhati that in view of the decision of the Supreme Court in the case of New Kenilworth Hotel (P) Ltd. v. Orissa State Financial Corporation (supra), the Letters Patent Appeal was not maintainable has no merit.
7. But in the present case we find from the judgment and award of the Commissioner for Workmen's Compensation, Kamrup, Guwahati, that although the accident took place on July 22, 1992 and the appellant-Insurance Company was informed of the accident, the appellant-Insurance Company did not settle the claim and pay the compensation to the respondent No. 1 and the respondent No. 1 was compelled to file the claim case before the Commissioner for Workmen's Compensation, Kamrup, Guwahati. For this default no penalty has been awarded in favour of the respondent No. 1. However, interest has been awarded at the rate of 12% per annum on the compensation amount of Rs. 1,97,060.00 calculated from the date of filing the claim, i.e. January 31, 1993. The said amount of Rs. 1,97,060.00 has already been withdrawn by the respondent No. 1 who was the wife of the driver who was killed in the accident. The earning member of the family of the respondent No. 1 having been killed, we are not quite sure as to whether she will be able to refund the portion of the compensation amount awarded in excess of what was due under the Workmen's Compensation Act, 1923, as it stood prior to the amendments made in the year 1995. Hence, no useful purpose would be served by setting aside the awarded amount of Rs. 1,97,060.00 and by awarding compensation calculated as per the provisions of the Workmen's Compensation Act, 1923, as it stood prior to the amendments made in the year 1995. But since the respondent No. 1 has already drawn more than what was due to her under the 1 Workmen's Compensation Act as it stood prior to the amendments made in the year 1995, we are of the view that she would not be paid interest of 12% per annum on the awarded amount of Rs. 1,97,060.00 as awarded in the judgment and award of the Commissioner for Workmen's Compensation. In fact, in the Kerala State Electricity Board, v. ValsalaK. & another (supra), the Supreme Court, while laying down the law that the amount of compensation payable on account of Amendment Act, 1995, could not be paid for the accident which had occurred prior to September 15, 1995, the Supreme Court did not interfere with the award impugned in the case keeping in view the peculiar facts and circumstances of the case. Thus, while we hold that for accidents which took place prior to September 15, 1995, compensation could not be awarded on the basis of amendments made to the Workmen's Compensation Act, 1923, in the year 1995. We are not inclined to set aside the awarded compensation amount of Rs. 1,97,060.00 already withdrawn by the respondent No. 1 and instead we delete from the award interest of 12% per annum on the said amount with effect from January 30, 1993 by way of relief to the appellant. But we make it clear that as has been observed by the learned single Judge in the impugned judgment, the award of compensation in this case to the respondent No. 1 will not be a precedent for other cases in view of the clear law laid down by the Apex Court as indicated above that for accidents which have taken place prior to September 15, 1995, the compensation payable by the amendments to the Workmen's Compensation Act in the year 1995 were not applicable.
8. The appeal is disposed of accordingly. No costs.