Himachal Pradesh High Court
New India Assurance Company Ltd. vs Nand Lal And Anr. on 15 December, 2005
Equivalent citations: II(2006)ACC466, 2006(3)SHIMLC218
Author: Deepak Gupta
Bench: Deepak Gupta
JUDGMENT Deepak Gupta, J.
1. This appeal under Section 30 of the Workmen's Compensation Act has been filed against the order passed by the Commissioner under the Workmen's Compensation Act, Arki, in case No. 2 of 2000 decided on 7.1.2003.
2. The brief facts of the case are that the claimant filed a petition under the Workmen's Compensation Act for the grant of compensation. This petition was filed on 1.7.2000. In the petition it was alleged that on 13.3.1993 when the claimant Nand Lal was employed as Cleaner in truck No. HIS-1978 belonging to respondent Kundan Sen Thakur he met with an accident which resulted in an injury to his log. According to the claimant he suffered disablement to the extent of 60%. He stated that his income was Rs. 2,000/- per month and apart from this he used to receive Rs. 50/- as daily allowance. The truck in question was insured with the appellant-Insurance Company. The claim petition was contested by all the respondents. The Insurance Company had taken up the plea that the petition is hopelessly time barred and should be dismissed on this ground alone. In addition thereto the Insurance Company raised other pleas. The evidence was led by the parties and thereafter the Commissioner Workmen's Compensation, Arki vide his impugned order dated 7.1.2003 has assessed the compensation payable to the claimant at Rs. 3,78,370/ -. In addition thereto the claimant has been held entitled to interest @ 12% p.a. from the date of accident till the date of payment of compensation. He has further ordered that in case the amount alongwith interest is net deposited within 30 days the respondents shall pay 50% of the assessed amount as penalty.
3. I have heard Mr. Sanjeev Sood, learned Counsel for the appellant. He submits that the Commissioner has not even given any finding on the question whether the claim was barred by time. He further submits that in the absence of any application for condonation of delay the claim petition could not have been entertained. Further he submitted that the Commissioner has not calculated the compensation in accordance with the provisions of the Workmen's Compensation Act. His next argument is that accident admittedly occurred in the year 1993 and therefore compensation had to be assessed as per the law which existed in the year 1993. Finally he submitted that the Commissioner could not have ordered payment of penalty especially by the Insurance Company.
4. The following questions of law arise in this appeal:
(1) Whether the original petition was barred by limitation?
(2) Whether compensation has to be assessed as per the law existing on the date of accident? (3) Whether penalty can be imposed upon the Insurance Company?
5. As far as the first question is concerned Mr. Sanjeev Sood is absolutely right when he submits that the Commissioner was expected to give a finding on the specific plea raised by the Insurance Company that the original application was time barred. The Insurance Company had specifically taken this plea and in rejoinder the claimant had only stated that since he had not obtained the disability certificate, therefore, the claim petition was within limitation. However, it appears that an application for condonation of delay was filed later on 10.9.2002 and the delay was condoned by the Commissioner on 9.10.2002. I find that the order condoning the delay is only on the application itself and the said order is not reflected in the daily order sheet. The procedure followed by the Commissioner Workmen's Compensation, to say the least, is highly unsatisfactory. The application under Section 5 for condonation of delay was filed on 10.9.2002 and the case was adjourned for 9.10.2002. No orders were passed on the application for condonation of delay on the main file but on the application itself the Commissioner wrote "delay condoned" on 9.10.2002. The Commissioner while passing an order for condonation of delay should have given reasons for condoning the delay and should have also noted the objections to the delay. However, keeping in view the fact that admittedly the workman had suffered injuries and the fact that the Workmen's Compensation Act is a social welfare legislation and keeping in view the explanation given by the claimant that he is an illiterate person and was not aware about the procedure and remained under the impression that till he obtained disability certificate he could not file a petition under the Workmen's Compensation Act the order condoning the delay is upheld though for different reasons.
6. The second contention of Mr. Sanjeev Sood is that the compensation has to be assessed as per law existing on the date of accident. In fact this question is no longer res integra. There are numerous judgments of the Apex Court on this point. The compensation has to be calculated as per the provisions of law as they exist on the date of accident. In the present case the cause of action has arisen on the date when the accident had occurred.
7. A four Judge Bench of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata 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. This judgment was followed in Kerala State Electricity Board and Anr. v. Valsala K. and Anr. . The same view has been taken in Oriental Insurance Co. Ltd. v. Khajuni Devi and Ors. .
8. This Court has also consistently taken the view that the rights of the parties are governed by the law as it exists on the date of the accident. This view has been taken in United India Insurance Company Ltd. v. Smt. Nako alias Naiku Devi 1996 (1) Sim. L.C. 370, when it was held as follows:
8. We may refer to Maxwell on Interpretation of Statutes, Twelfth Edn. P. 215, regarding retrospective operation of statutes 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 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.
9. To similar effect arc also the decisions of this Court in H.P. State Forest Corporation Ltd. v. Ganu Devi and Ors. Latest HLJ 2004 (HP) 945, and in Executive Engineer, B & R, HPPWD, Solan and Anr. v. Kewal Ram FAO No. 261 of 2003 decided on 17.7.2094.
10. This view has also been followed by this Court in FAO No. 252 of 1998 and FAO No. 308 of 1995 decided on 12.5.2005.
11. The method of assessment of compensation followed by the Commissioner is totally vague. How he has assessed the compensation at Rs. 3,78,370/- is unclear. He has taken the entire income i.e. Rs. 3,500/ - and then calculated the compensation. This could not have been done since the maximum wages in the year 1993 which could be taken into consideration were only Rs. 1,000/- per month.
12. In view of the above settled position of law, the compensation has to be assessed by keeping in view the legal provisions of the Workmen's Compensation Act as existing on 13.3.1993 the date of accident. On the said date the maximum wages of a workman which could be taken for consideration for assessment of compensation were only Rs. 1,000/- per month. In case of 100% permanent disability, 50% of the wages have to be multiplied by the relevant factor. In case the maximum wages of Rs. 1,000/- have to be taken into consideration, Rs. 500/- have to be multiplied by the relevant factor. The age of the claimant at the time of the accident was 19 years the relevant factor, therefore, is 225.22. In case of 100% disablement the compensation payable would be Rs. 225.22 x 500 = Rs. 1,12,600/-. In the present case the disability certificate produced on record is Ext. PW-l/C. This shows that the disability is 60%. Taking the disability at 60% the compensation payable works out to Rs. 67,560/-. On this amount the claimant shall be entitled to interest @ 6% p.a. w.e.f. 13.4.1993 i.e. one month after the date of the accident till payment or the deposit of the amount of compensation.
13. As far as penalty is concerned the Apex Court in Ved Prakash Garg v. Premi Devi and Ors. , has held that no liability to pay penalty can be imposed upon the Insurance Company, therefore, the direction of the Commissioner imposing penalty on the Insurance Company is not justified.
14. In view of the above discussion, the appeal filed by the Insurance Company is allowed and the award of the Workmen's Compensation Commissioner is set aside. It is held that the claimant shall be entitled to compensation of Rs. 67,560/- along with interest @ 6% p. a. from 13.4.1993 i.e. one month after the date of accident till payment/deposit of the said amount. There will be no order as to costs.