Himachal Pradesh High Court
New India Assurance Co. Ltd. vs Sunita Devi And Ors. on 17 May, 2005
Equivalent citations: IV(2005)ACC232, 2006ACJ1036
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. When this case was taken up today, learned Counsel for the parties submitted that instead of taking up the application for release of amount, keeping in view the limited controversy involved in the matter, this appeal may be finally heard and disposed of.
2. Keeping in view this joint prayer, as well as the controversy involved in this appeal, matter was finally heard and is being disposed of.
3. Admitted facts of this case are that deceased Prem Chand was employed as a driver with Roop Chand, respondent No. 2 (owner of the vehicle in question). Sunita, respondent No. 1 is Prem Chand's widow, respondent No. 3 is his mother, respondent No. 4 is his brother and respondent Nos. 5 and 6 are his sisters. It was not disputed at the time of hearing that vehicle involved in the accident bearing registration No. HP 07-2061 was owned by Roop Chand and was insured with the appellant insurance company. Prem Chand having died in the accident during the course of his employment with Roop Chand, insured, is another fact that stands duly proved on record, is also not disputed.
4. In this background, Mr. Sood, the learned Counsel for the appellant insurer on a substantial question of law urged, that keeping in view the date of accident/death, i.e., 23.5.1995, relevant wage to be considered for calculating the compensation of the deceased is Rs. 1,000 per month under the Workmen's Compensation Act, 1923. According to him, any wage beyond Rs. 1,000 per month has no relevance while calculating the compensation. Further as per him, 50 per cent of Rs. 1,000 has to be multiplied with the relevant factor as contained in Schedule IV attached to the Workmen's Compensation Act. Proved age of the deceased driver Prem Chand in this case is 30 years.
5. The learned Counsel for the parties further submitted that relevant factor in this case is 207.98.
6. Thus, in view of the legal position, the compensation payable in the present case on the date of accident works out to Rs. 1,03,990 (Rs. 500 x 207.98). Whereas the Commissioner awarded Rs. 1,55,985 besides interest and penalty on it.
7. Faced with this situation, learned Counsel for respondent Nos. 1 and 3 to 6 urged that the provisions of Workmen's Compensation Act, 1923, being beneficial piece of legislation, amendment carried out w.e.f. 15.9.1995, has to be treated as retrospectively applicable. Therefore, according to them, present appeal merits dismissal.
8. In this behalf, it may be appropriate to observe that on the date of accident, rights of the parties, i.e., respondent Nos. 1 and 3 to 6, and the liability of the insurance company and also of the owner of the vehicle, were fructified. By amending Section 4 of the Workmen's Compensation Act w.e.f. 15.9.1995, its implication is that liability is enhanced against both appellant as well as respondent No. 2.
9. In these circumstances, submission urged on behalf of the claimants is without merit and thus liable to be rejected. Reason being that the amendment of substantive provision of law, which enhances financial liability, cannot be said to be procedural in nature, so as to make it retrospectively applicable. Further, it is by now well settled that unless the amended provision is made retrospectively applicable, it has to be prospective in its application. In this behalf reliance is being placed on a Division Bench judgment of this Court under Workmen's Compensation Act in United India Insurance Co. Ltd. v. Nako . What was held in this case and is relevant for the purpose of present appeal, is extracted hereinbelow:
(8) We may refer to Maxwell on Interpretation of Statutes, 12th 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 and distinct implication.' Applying the above settled law of interpretation, we hold that as the accident took place prior to the amendment of 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.
10. To similar effect are also the decisions of this Court in H.P. State Forest Corporation Ltd. v. Ganu Devi 2006 ACJ 624 (HP) and in Executive Engineer, B&R, H.P.P.W.D., Solan v. Kewal Ram 2005 ACJ 329 (HP).
11. Similar view has been expressed by various High Courts, namely, Punjab and Haryana High Court in Oriental Fire & Genl. Ins. Co. Ltd. v. Moola Singh 1970 ACJ 401 (P&H); Nagpur Bench of Bombay High Court in Uttam v. Corporation of the City of Nagpur 1981 (1) ILR (Bombay Series) 789; Allahabad High Court in U.P. State Road Trans. Corporation v. Abdul Hameed 1985 ACJ 832 (Allahabad) and Kerala High Court in Kochu Vein v. Purakkattu Joseph 1984 ACJ 630 (Kerala).
12. A perusal of the impugned award shows that penalty has also been levied in the impugned award on the awarded sum of Rs. 1,55,985. This amount has been fixed at Rs. 77,992. .Since it has been held that compensation payable is Rs. 1,03,990 only, penalty also needs to be reduced to its 50 per cent. This comes to Rs. 51,995 being 50 per cent of the awarded compensation. This is being ordered to bring the amount as per law.
13. Interest at the rate of 12 per cent is also payable on the sum of Rs. 1,03,990 w.e.f. 1.7.1995 to 3.8.1998, the date on which the amount was deposited with the Commissioner below as per the certificate at page 18 of the paper book of this appeal.
14. Registry is now directed to retain the amount in terms of this judgment and to remit the balance amount with up-to-date interest, if any, to the bank account of the appellant insurance company, number whereof Mr. Sood submitted, will be furnished within 2 weeks. Out of the awarded compensation, Sunita, respondent No. 1, will get Rs. 50,000 with proportionate interest whereas rest of the amount will be apportioned equally amongst respondent Nos. 3 to 6. Any amount received by any one of them shall be deducted from share of such recipient in terms of this judgment.
15. No other point was urged. Appeal is disposed of in the aforesaid terms. No order as to costs.
C.M.P. No. 248 of 2005No order in view of the disposal of the main appeal. Application stands disposed of.