Punjab-Haryana High Court
Gurdev Singh vs Indian Red Cross Society on 14 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
FAO No. 991 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
F.A.O. No. 991 of 1987
Reserved on: July 30, 2013
Date of Decision: August 14, 2013
Gurdev Singh
... Appellant
Versus
Indian Red Cross Society, Patiala and another
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Ms. Samiya Singh and
Mr. P.S. Ahluwalia, Advocates,
for the appellant.
None for respondent No.1.
Mr. M.B. Jain, Advocate,
for respondent No.2
Paramjeet Singh, J.
Challenge in this appeal is to the order dated 05.05.1987 passed by the Commissioner Workmen's Compensation Act, Patiala.
The appellant (hereinafter referred to as the "claimant") was working as a driver on the Ambulance Van of respondent no.1. During the period of his service, the claimant met with an accident on 11.12.1983. As a result of the accident, the claimant suffered injuries in his right eye Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 2 resulting in the loss of vision of his right eye.
The claimant filed an application under Section 92-A of the Motor Vehicles Act before the Commissioner claiming maintenance allowance from the respondents. It was pleaded that as he was earning Rs.784/- per month, had suffered permanent disability, which would prevent him from engaging in the job of driver which he used to do earlier, he was entitled to a compensation of Rs.40,000/- under the Workmen's Compensation Act.
The application was contested by respondent no.1 and it was stated that the offending van was insured with United India Insurance Company, therefore, it is the liability of the Insurance Company to pay compensation in this case. The Commissioner vide order dated 27.05.1986 directed the respondents to pay Rs.7500/- to the appellant as immediate relief under Section 92-A read with Section 92-D of the Motor Vehicles Act. Thereafter, the appellant filed an application under Section 22 of the Workmen's Compensation Act and under Rule 22 of the Workmen's Compensation Rules, 1924 for compensation. Separate replies were filed by the respondents. Respondent no.1 in his reply stated that the appellant was not a workmen under the Workmen's Compensation Act, he was only a casual employee. It was stated that the application was not maintainable as the respondent no.1 did not do any business or trade. Respondent No.2 in his reply, denied all the material allegations levelled in the application.
On pleadings of the parties, the Commissioner framed the following issues:-
Kumar Virender2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 3
"1. Whether the applicant was a workman with respondent no.1 on 11.12.1983, If so what were his monthly wages? OPA
2. Whether the applicant received personal injury by accident arising out of and in the course of his employment with respondent no.1? OPA
3. Whether the applicant gave notice of the accident to respondent no.1? If not to what effect? OPA
4. Whether the applicant is entitled to any compensation? If so, how much and from whom? OPA
5. Relief."
On the aforesaid issues, the claimant examined Dr. B.K.Chopra as AW1 and himself as AW2. The Commissioner vide order dated 05.05.1987, after appreciating the evidence, came to the conclusion that the claimant has suffered 30% permanent disability, the amount of compensation was awarded to the tune of Rs.10,080/- in favour of the claimant, payable by respondent no.2 - Insurance Company. The Commissioner further directed respondent no.2 to pay the balance sum of Rs.2580/-, as a sum of Rs.7500/- had already been paid to the appellant under Sections 92-A and 92-D of the Motor Vehicles Act with interest at the rate of 6% per annum on the sum of Rs.10,080/- from the date of the accident to the date of the payment of Rs.7500/- and interest at the same rate on a sum of Rs.2580/- w.e.f. the date the payment of Rs.7500/- to the date of the payment of the balance amount of Rs.2580/-. Dis-satisfied with the compensation awarded by the Commissioner, the appellant- claimant filed the present appeal for enhancement.
I have heard learned counsel for the parties and gone through Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 4 the record of the case.
Learned counsel for the appellant relied upon judgments of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Siby George, 2012(4) RCR (Civil) 617 and S. Suresh vs. Oriental Insurance Co. Ltd. & another, 2010(3) RCR (Civil) 666.
The Hon'ble Supreme Court in the case of Siby George (supra) has held as under:-
"6. The view taken by the Court in Mohd. Nasir that the rate of interest provided under sub-section (3) of section 4-A would apply only in case the "finding of fact as envisaged therein" is arrived at by the Commissioner, it must respectfully be stated, seems to result from the mixing up of 'interest due to default in payment of compensation' and 'penalty for an unjustified delay in payment of compensation' and is based on a misreading of the sub-section (3) of section 4-A. Sections 4-A (1) and (3) are as under:-
4-A. Compensation to be paid, when due and penalty for default. - (1) compensation under section 4 shall be paid as soon as it falls due.
(2) xxx xxx xxx (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 Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 5 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. - xxx xxx xxx (3A) xxx xxx xxx
7. It is, thus, to be seen that sub-section (3) of section 4-A is in two parts, separately dealing with interest and penalty in clauses (a) and (b) respectively. Clause (a) makes the levy of interest, with no option, in case of default in payment of compensation, without going into the question regarding the reasons for the default. Clause (b) provides for imposition of penalty in case, in the opinion of the Commissioner, there was no justification for the delay. Before imposing penalty, however, the Commissioner is required to give the employer a reasonable opportunity to show cause. On a plain reading of the provisions of sub-section (3) it becomes clear that payment of interest is a consequence of default in payment without going into the reasons for the delay and it is only in case where the delay is without justification, the employer might also be held liable to penalty after giving him a show cause. Therefore, a finding to the effect that the delay in payment of the amount due was unjustified is required to be recorded only in case of imposition of penalty and no such Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 6 finding is required in case of interest which is to be levied on default per se."
Hon'ble Supreme Court in S.Suresh's case (supra) has held as under:
"7. The correctness of the impugned judgment is questioned mainly on the ground that the claimant being a lorry driver, the loss of his right leg ipso facto meant a "total disablement" as understood in terms of Section 2(1)(l) of the Act and as such the compensation payable to the claimant had to be computed on that basis. In support of the plea, reliance is placed on a four-Judge Bench decision of this Court in Pratap Narain Singh Deo vs. Srinivas Sabata & Anr.1 In that case, a carpenter had suffered amputation of his left arm from the elbow. This Court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under:
"5. The expression "total disablement" has been defined in Section 2(1)(l) of the Act as follows: (1) "total disablement" means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement.
It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 7 time of the accident. The Commissioner has examined the question and recorded his finding as follows:
The injured workman in this case is carpenter by profession....By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonable and correct finding."
8. In our view, the ratio of the said judgment is squarely applicable to the facts at hand. We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving licence under the Motor Vehicles Act."
In view of the ratio of law laid down in the above authorities and the fact that the appellant has lost vision of his right eye, therefore, he has lost 100% of his earning capacity by way of performing the duty of a driver. As per the Motor Vehicles Act and Rules, the appellant has been deprived of getting a driving license specially for commercial purpose which he was earlier having.
In view of the aforesaid judgments of the Hon'ble Supreme Court, the appellant held entitled to compensation as per provisions of Section 4 read with Schedule II of the Workmen's Compensation Act, 1923 as it stood prior to amendment in 1995 because the amendment is prospective in nature as held by Hon'ble Gauhati High Court in Sabita Kumar Virender 2013.08.26 14:37 I attest to the accuracy and integrity of this document FAO No. 991 of 1987 8 Rani Roy and others vs. Bani Choudhury and another (2003) ACC 321:
(2003) 1 GLR 127. As per affidavit filed by the appellant in support of C.M. No. 30688-CII of 2012, the age of the appellant at the time of accident in the year 1983 was 48 years and he was getting Rs. 784/- per month. Thus, by applying the factor provided in Schedule-IV read with Section 4 of the Act, the compensation payable to the appellant comes to Rs.75,106 (784x60/100x159.80) rounded off to Rs.75,000/-. Ordered accordingly. The appellant shall also be entitled to interest at the rate of 9% per annum on the sum of Rs.75,000/- from the date of accident till the amount paid by respondent no.2.
Instant appeal is allowed in the above terms.
August 14, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2013.08.26 14:37
I attest to the accuracy and
integrity of this document