Himachal Pradesh High Court
____________________________________________________________________ vs The Executive Engineer on 6 October, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 174 of 2012
Decided on: October 6, 2017
____________________________________________________________________
Smt. Mumtaz ..Appellant
Versus
.
The Executive Engineer, Aug (E) Div. No.-2, H.P.S.E.B. Ltd.
..........Respondent
____________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
____________________________________________________________________
For the Appellant : Ms. Shikha Chauhan and Mr. Khushi
Verma, Advocates.
For the Respondent :
Mr. Satyen Vaidya, Senior Advocate with
Mr.Vivek Sharma, Advocate.
____________________________________________________________________
Sandeep Sharma, Judge:
By way of instant appeal filed under Section 30 of the Workmen's Compensation Act, challenge has been laid to order dated 31.12.2011 passed by the Commissioner under Employee's Compensation Act in Case No. 16/2 of 2011/10, whereby the Commissioner below while allowing the petition filed under Section 4 of the Workmen's Compensation Act, 1923 held the appellant-
claimant entitled to compensation to the tune of `5,84,800/- and `5,000/- as funeral charges. Learned Commissioner below, while awarding aforesaid amount as compensation, also directed the respondent-Board to pay/deposit the aforesaid compensation amount within one month from the date of order i.e. 31.12.2011 before him, failing which respondent was directed to pay interest @ 12% per annum after 31.1.2012.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/11/2017 11:09:38 :::HCHP 22. Ms. Shikha Chauhan, Advocate, while inviting attention of this Court to impugned order dated 31.12.2011, fairly stated that there is no challenge as such to the quantum of compensation awarded by the learned Commissioner below in petition under Section .
4 of the Workmen's Compensation Act filed by the claimant, rather, petitioner is aggrieved with non-grant of interest from the date of accident, as prayed in the petition filed under Section 4 of Employee's Compensation Act. Learned counsel further contended that otherwise also, aforesaid award passed by learned Commissioner below has attained finality qua amount of compensation since no appeal, whatsoever, has been preferred against the same by the respondent-
Board.
3. Learned counsel while placing reliance upon the judgment passed by this Court, in case titled as Sita Ram versus Satvinder Singh & another, Latest HLJ 2008 (HP) 1110, contended that the appellant-claimant is/was entitled to interest @ 12% per annum on compensation amount, from the date of accident. Learned counsel also placed reliance upon judgment of Hon'ble Apex Court in Pratap Narain Singh Deo versus Shrinivas Sabata and another, AIR 1976 SC 222 to contend that employer becomes liable to pay compensation as soon as injury is caused to the workman.
4. Mr. Satyen Vaidya, learned Senior Advocate duly assisted by Mr.Vivek Sharma, Advocate, while refuting aforesaid submissions having been made by the learned counsel representing the appellant, stated that there is no illegality or irregularity in the impugned order passed by learned Commissioner below, as such, same deserves to be ::: Downloaded on - 10/11/2017 11:09:38 :::HCHP 3 upheld. Mr. Vaidya, learned Senior Advocate, further contended that judgments cited above, have no application in the present case, as such, present petition deserves to be dismissed being devoid of merits.
.
5. I have heard the learned counsel for the parties and gone through the record carefully.
6. It is undisputed that there is no challenge, if any, to the amount of compensation awarded by the learned Commissioner below, as such, this Court is only called upon to determine whether appellant is/was entitled to interest from the date of accident or from the date of passing of award by the learned Commissioner below.
7. Before adverting to the merits/demerits of the arguments having been advanced by the learned counsel representing the parties, this Court deems it fit to take note of Section 4 of the Workmen's Compensation Act, which provides for grant of compensation to be paid to the workman, on account of injury or death:
"4. Amount of compensation (1) Subject to the provisions of this Act the amount of compensation shall be as follows namely :-
where death results from the injury an amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of fifty thousand rupees whichever is more; where permanent total disablement results from the injury an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of sixty thousand rupees whichever is more.
Explanation I : For the purpose of clause (a) and clause (b) relevant factor in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the fits column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his birthday immediately preceding the date on which the compensation fell due; Explanation II : Where the monthly wages of a workman exceed two thousand rupees his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be two thousand rupees only;::: Downloaded on - 10/11/2017 11:09:38 :::HCHP 4
(c) where permanent partial disablement results from the injury in the case of an injury specified in Part II of Schedule I such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the lass of earning capacity caused by that injury; and in the case of an injury specified in Schedule I such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
.
Explanation I : Where more injuries than one are caused by the same accident the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II : In assessing the loss of earning capacity for the purpose of sub-clause
(ii) the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I;
(d) where temporary disablement whether total or partial results from the injury a half monthly payment of the sum equivalent to twenty five per cent of monthly wages of the workman to be paid in accordance with the provisions of sub-section (2).
(1A) Notwithstanding anything contained in sub-section (1) while fixing the amount of compensation payable to a workman in respect of an accident occurred outside India the Commissioner shall take into account the amount of compensation if any awarded to such workman in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by the amount of compensation awarded to the workman in accordance with the law of that country. (2) The half-monthly payment referred to in clause (d) of sub-section (1) shall be payable on the sixteenth day -
from the date of disablement where such disablement lasts for a period of twenty-eight days or more or after the expiry of a waiting period of three days from the date of disablement where such disablement lasts for a period of less than twenty-eight days; and thereafter half-monthly during the disablement or during a period of five years whichever period is shorter :
Provided that -
there shall be deducted from any lump sum or half monthly payments to which the workman is entitled the amount of any payment or allowance which the workman has received from the employer by way of compensation during the period of disablement prior to the receipt of such lump sum or of the first half monthly payment as the case may be; and no half monthly payment shall in any case exceed the amount if any by which half the amount of the monthly wages of the workman before the accident exceeds half the amount of such wages which he is earning after the accident.
Explanation : Any payment or allowance which the workmen has received from the employer towards his medical treatment shall not be deemed to be a payment or allowance received by him by way of compensation within the meaning of clause (a) of the proviso. On the ceasing of the disablement before the date on which any half monthly payment falls due there shall be payable in respect of that half monthly a sum proportionate to the duration of the disablement in that half month. If the injury of the workman results in his death the employer shall in addition to the compensation under sub-section (1) deposit with the Commissioner a sum of one thousand rupees for payment of the same of the eldest surviving dependant of the workman ::: Downloaded on - 10/11/2017 11:09:38 :::HCHP 5 towards the expenditure of the funeral of such workman or where the workman did not have a dependant or was not living with his dependant at the time of his death to the person who actually incurred such expenditure. 4A. Compensation to be paid when due and penalty for default 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.
direct that the employer shall in addition to the amount of the arrears pay simple interest thereon at the rate of twelve per cent 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 if in his opinion there is no jurisdiction 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 shoe 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 payable under sub-section (3) shall be paid to the workman or his dependant as the case may be and the penalty shall be credited to the State Government.
Method of calculating wages In this Act and for the purpose thereof the expression "monthly wages" means the amount of wages deemed to be payable for a months' service (whether the wages are payable by the month or by whatever other period or at piece rates) and calculated as follows namely :-
where the workman has during a continuous period of not less than twelve months immediately preceding the accident been in the service of the employer who is liable to pay compensation the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period; where the whole of the continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less than one month the monthly wages of the workman shall be the average monthly amount which during the twelve months immediately preceding the accident was being earned by a workman employed on the same work by the same employer or if there was no workman so employed by a workman employed on similar work in the same locality; in other cases including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b) the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident from the employer who is liable to pay compensation divided by the number of days comprising such period.
Explanation : A period of service shall for the purposes of this section be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 6
8. It is quite apparent from bare reading of aforesaid provisions of law that workman or his dependant, be it wife or children, are entitled to compensation on account of injury or death of a workman, during the course of employment. Section 4A of the .
aforesaid Act provides for penalty in default of payment of compensation. As per provisions contained in Section 4A, 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. Similarly, sub-section 3 of Section 4A provides that wherever any employer is in default in paying compensation due under the Act, within one month from the date it fell due, Commissioner can 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 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. Apart from above, Section 3A provides that the interest and the penalty payable under sub-
section (3) of Section 4A of the Act, shall be paid to the workman or his dependant, as the case may be. Section 4A of the Act ibid is reproduced herein below:
4A. 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. 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 ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 7 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 the penalty payable under sub-section (3) shall be paid to the workman or his dependant, as the case may be.]]
9. It is undisputed before this Court that no amount, as provided under Section 4 of the Workmen's Compensation Act/Employee's Compensation Act, was ever deposited by the respondent-Board, immediately after accident, rather, it emerges from the record that respondent Board failed to deposit the amount even after filing of the claim petition, and same has been deposited after passing of order in execution petition filed by the claimant.
10. It is quite evident from the provisions of law taken note above, that claimant is/was entitled to interest over compensation amount from the date of accident i.e. 9.2.2010, but, in the instant case, learned Commissioner below while holding claimant entitled for compensation, failed to exercise jurisdiction vested in him, in as much as, in not awarding interest as provided under aforesaid provisions of law, from the date of accident.
::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 811. This Court, after having carefully gone through the aforesaid provisions of law, sees no justification in denying the interest to the claimant on the amount of compensation awarded by the learned Commissioner below from the date of accident.
.
12. Hon'ble Apex Court in Pratap Narain Singh Deo versus Shrinivas Sabata and another, AIR 1976 SC 222, has held as under:
"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 with 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 a 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.
8. It was the duty of the appellant, under section 4A(1) of the Act, to pay the compensation at the rate provided by section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making and application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 9 respondent to file a memorandum of agreement setting the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty."
13. This Court in case titled as Sita Ram versus Satvinder .
Singh & another, Latest HLJ 2008 (HP) 1110, has held as under:
"2. The undisputed facts are that the applicant was a Workman and filed a claim petition for compensation on account of personal injury sustained in an accident while discharging his duties as a driver. The learned Commissioner awarded compensation of Rs.2,21,004/-. It further directed that the amount be deposited within sixty days from the date of order, failing which, the Insurance Company would be liable to pay interest at the rate of 12% per annum. The workman challenged this award only on the ground that the Commissioner has failed to award statutory interest at the rate of 12% per annum from the date the amount fell due and also prayed that the Commissioner has failed to exercise jurisdiction vested in him by law in not awarding penalty and interest in terms of Section 4-A of the Workmen's Compensation Act. Section 4-A of the Workmen's Compensation Act reads as follows:-
"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) In case 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 payment 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 ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 10 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."
3. A bare perusal of this Section shows that an employer in .
terms of Section 4-A is expected to deposit the amount of compensation payable to an employee within one month. If he does not pay the compensation within one month, he is liable to pay interest and penalty. The main question which arises for consideration in this case is when does the compensation "fall due". Section 3 of the Workmen's Compensation Act makes an employer liable to pay compensation in respect of personal injury or death of an employee in an accident arising out of and in the course of employment. As per the provisions of this Section, the amount falls due when the accident takes place. Section 4 lays down the criteria to calculate the amount of compensation payable. Section 4-A, which has been quoted hereinabove, lays down that the compensation under Section 4 shall be payable as soon as it falls due. Section 4(2) provides that even when 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 without prejudice to the right of the Workman while making any further claim. From a bare perusal of Section 4-A(1) and 4-A (2), it is apparent that the compensation falls due on the date of accident and the employer is expected to make the payment immediately and even if he does not accept the liability to the extent claimed, he is bound to make provisional payment.
4. It would be pertinent to note that under the provisions of the Workmen's Compensation Act, it is not necessary that a claim petition must be filed. The employer of his own can also deposit the compensation with the Commissioner. Section 4-A (3) lays down that where the employer is in default in paying the compensation due under the Act within one month from the date it falls due, the Commissioner shall direct the employer to pay interest in addition to compensation at the rate of 12% per annum or at such higher rate not exceeding the maximum the lending rates of scheduled banks. Section 4-A (3) (b) empowers the Commissioner to impose penalty, if he is of the opinion that there is no justification for the delay in depositing the amount. From a perusal of all the aforesaid statutory provisions, it is apparent that the compensation falls due on the date of accident. The liability to pay interest/penalty can be avoided by depositing the amount payable or at least making provisional payment within one month of the accident.
::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 115. The question as to when the amount falls due, came up for consideration before a Constitution Bench of the Supreme Court in Partap Narain Singh Deo versus Shrinivas Sabata and another, AIR 1976 Supreme Court 222. The Apex Court was considering the provisions of Sections 3,4, 4-A and 19 of the Workmen's Compensation Act. The contention which was raised before the Supreme Court, has been noted by it in para-6 of the said judgment. In para-7 and para-8, the Apex Court dealt with .
the question as to when the compensation falls due. The relevant portion of the judgment reads as follow:-
"6. It has next been argued that the Commissioner committed a serious error of law in imposing a penalty on the appellant under Section 4-A (3) of the Act as the compensation had not fallen due until it was 'settled' by the Commissioner under Section 19 by his 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 Subsection (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."
"8. It was the duty of the appellant, under Section 4-A (1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 12 (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence." (Emphasis supplied)
6. It would also be pertinent to mention that a three Judge Bench of the Apex Court in Kerala State Electricity Board versus Valsala K., 2000 ACJ 5, held that the relevant date for .
determining the rate of compensation and liability of the parties concerned, is the date of the accident and not the date of adjudication of the claim. No doubt, in that case, the question raised, was as to whether compensation should be assessed in accordance with the provisions of Section 4 of the Workmen's Compensation Act, as existing on the date of adjudication or as per the law which was in force on the date of accident. The Apex Court clearly held that the rights of the parties will be governed by the law as it exists on the date of accident. The view of the Apex Court in Partap Narain Singh Deo's case, was being followed by all the Courts as well as this Court for the last more than three decades.
7. This Court in Ram Dulari Kalia versus H.P. State Electricity Board and another, ILR 1986 H.P. 842, following the aforesaid judgment held as follows:-
"8. Against the background aforesaid, it is manifest that in the present case duty to pay the compensation at the rate provided in section 4 arose under sub-section (1) of section 4-A of the Act as soon as the accident resulting in the injury to the deceased workman and in his consequential death occurred and that the respondents being in default in paying the compensation due under the Act within one month from the said day, the discretion conferred on the Commissioner under sub-section (3) of section 4-A to award interest on the compensation amount in accordance with law was required to be exercised reasonably and in a judicial manner after taking into consideration all the relevant factors and that if, in her considered opinion, there was no justification for the delay, the penalty was also required to be ordered to be recovered. The Commissioner has held, as earlier pointed out, that since the respondents had admitted the liability to pay the compensation "whatever is to be awarded" and that they had also deposited the amount of compensation in the Court, the claim with regard to the payment of interest was not justified. The question of imposition of penalty does not appear to have been considered at all presumably on the same ground. The question for determination is whether the award suffers from any error of law based, inter-alia, upon the misconstruction of the relevant statutory provision."
::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 138. It would be pertinent to mention here that in a large number of cases, the Apex Court as well as this Court were granting interest from one month after the date of the accident or from the date of filing of the application. However, the respondent-Insurance Company has placed reliance upon the judgment of the Apex Court in National Insurance Co. Ltd. versus Mubasir Ahmed and another, 2007 ACJ 845. in this case the Apex Court held as follows:-
.
"9. Interest is payable under section 4-A (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 4-A was dealt with by this court in Maghar Singh v. Jaswant Singh, 1997 ACJ 517 (SC). By amending Act 30 of 1995, section 4-A of the Act was amended, inter alia fixing the minimum rate of interest to be simple interest at the rate of 12 per cent. In the instant case, the accident took place after the amendment and, therefore, the rate of 12 per cent 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 4- A (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 4-A. 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."
9. The Apex Court held that the compensation falls due only after the adjudication is done and consequently interest can be awarded only from the date of adjudication. With due respect, it appears that the earlier judgment of the Apex Court in Partap Narain Singh Deo versus Shrinivas Sabata and another, rendered by a Bench of four Judges was not brought to the notice of the Apex Court while deciding the aforesaid case. Even the judgment rendered in the Kerala State Electricity Board versus Valsala K., was not brought to the notice of the Apex Court. It is apparent that the judgment in National Insurance Co. Ltd. versus Mubasir Ahmed and another is in direct conflict ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 14 with the view taken by a larger Bench in Partap Narain Singh Deo versus Shrinivas Sabata and another's case. Reliance is also placed by the Insurance Company on a judgment of a learned Single Judge of this Court in Executive Engineer and another versus Ambika Sharma, 2008 ACJ 664, wherein also the Single Judge relying upon the judgment of the Apex Court rendered in National Insurance Co. Ltd. versus Mubasir Ahmed and another held that interest could only be granted from the .
date of award. This judgment also does not take into consideration the Constitution Bench judgment in Partap Narain Singh Deo versus Shrinivas Sabata and another. Therefore, the said judgment is per incuriam.
10. When there are two conflicting judgments of the Apex Court, the only option before the High Court is to follow the judgment rendered by the Larger Bench of the Apex Court. In this behalf, reference may be made to Mattulal versus Radhe Lal's case, AIR 1974 Supreme Court 1596. A reference may also be made to the judgment of the Apex Court rendered in N.S. Giri versus Corporation of City of Mangalor and others, (1999) 4 Supreme Court Cases 697, wherein the Court held as follows:-
"12. The abovesaid decision does support the proposition canvassed by the learned counsel for the appellant that an industrial settlement would operate even by overriding a statutory provision to the contrary. However, suffice it to observe that the Constitution Bench decision in New Maneck Chowk Spg. and Wvg. Co. Ltd. and also the decision of this Court in Hindustan Times Ltd. which is a four-Judge Bench decision, were not placed before the learned Judges deciding LIC of India case. A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available."
11. The Constitution Bench had already decided the question as to when compensation falls due in terms of the Workmen's Compensation Act, 1923. Unfortunately, this decision of the Constitution Bench was not brought to the notice of the Apex Court while deciding National Insurance Co. Ltd. Versus Mubasir Ahmed and another, 2007 ACJ 845. Therefore, I feel that this Court is bound by the judgment rendered by the Constitution Bench of the Apex Court and I accordingly hold that the compensation falls due on the date when the accident takes place and in case the same is not deposited within thirty days, the workman is entitled to claim interest at the rate of 12% per annum without having to show that delay in depositing the compensation was attributable to the employer. While taking this view, I am supported by a Division Bench judgment ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP 15 of the Kerala High Court reported in National Insurance Co. Ltd. Versus Rekha, 2008 ACJ 886."
14. It is quite apparent from the aforesaid exposition of law that employer is bound to deposit the amount of compensation as claimed by the claimant or his/her dependant, as the case may be, .
immediately within 30 days from the date of accident and in case same is not deposited within aforesaid stipulated period, workman/claimant is entitled to claim interest @ 12% p.a. In the case at hand, as has been noticed above, at no point of time, amount was deposited by the respondent-employer within 30 days from the date of accident, rather, same came to be deposited, after filing of execution by the claimant, as such, claimant could not be denied interest on the amount of compensation.
15. Accordingly, the present appeal is allowed. Order dated 31.12.2011 passed by the Commissioner under Employee's Compensation Act in Case No. 16/2 of 2011/10 is modified to the extent that the claimant shall be entitled to interest @ 12% per annum on compensation amount, from the date of accident i.e. 9.2.2010.
16. Since instant appeal came to be filed in the year 2012, whereafter, it remained pending for almost five years, this Court hopes and trusts that respondent-Board shall calculate the interest @ 12% strictly in terms of this judgment and thereafter make payment expeditiously, preferably within a period of three months, from today.
(Sandeep Sharma) Judge October 6, 2017 (vikrant) ::: Downloaded on - 10/11/2017 11:09:39 :::HCHP