Commissioner for Workmen Compensation vs Satish Shrivastava

J.G. Chitre, J.

Shri S.V. Dandvate for the appellant, New India Insurance Company Ltd. (hereinafter referred to as Insurance Company.)

Shri J. C. Rawal for respondents 1 and 2. Respondent No. 4 absent. None present for him. Shri R. C. Maheswari for respondent no. 5. All of them have been heard on the merit of the matter.

This appeal assails the award passed by Commissioner for Workmen Compensation, Dewas who decided W. C. F. Case No. 5 of 1988 on 11.2.1992 by passing the award under challenge. On 1.1.81 deceased Abid, the driver driving turck No. MPM 5414 was proceeding towards Kantaphod. Unfortunately, the axel of the said truck was damaged and, therefore, for the purpose of repairing it, he proceeded to Kantaphod by truck no. MPF 7181. The said truck unfortunately toppled down. As a result, Abdul sustained serious injuries and succumbed to the death. Respondents 1 to 3 intially filed claim against, driver, owner and insurer of truck bearing number MPF 7181 claiming compensation for accidental death of Abdul. On 13.12.85 names of driver and insurer of the said truck were deleted. By amendment, the name of respondent no. 5 was added as the truck bearing number MPM 5414 stood registered in his name.

The claim was heard by learned Commissioner who passed the award in favour or respondents 1,2, and 3 granting compensation of Rs. 63,808/- payable by the insurance company to them along with interest at the rate of 6% per annum and penalty at the rate of 10% in the event of default in depositing the amount of compensation within prescribed time limit. The said award is being challenged by the insurance company in this appeal.

Shri Dandvate, learned counsel for the appellant insurance company submitted that Table no. 4 has been introduced by Act No. 22 of 1984 and relying on that schedule the learned Commissioner has calculated the amount of compensation awardable to respondents 1 to 3. It is his argument that the accident took place on 1.1.81 and that was the cause of action for the claim for compensation. He placed reliance on following judgments : (1) Padma Shrinivasan v. Premier Insurance Co. Ltd., reproted in 1982 A. C. 191 (2) National Insuranct Co. Ltd. v. Smt. Gangabai reported in 1991 M. P. W. N. 117 , page 156 and (3) New India Assurance Co. Ltd., Gwalior Vs. Nafis Begam and Others, Shri Rawal, learned counsel for respondents 1 to 3 relied on the judgment of this Court in the matter of Mines Manager v. Waheedul Haque Abbasi, reported in ( 1994 A. C. 334) for substantiating his argument for canvassing that Schedule no. 4 has retrospective effect.

In Padma Shrinivasan''s (supra) Supreme Court held that the retrospectivability depends on the casue of action so far as statutory liability of the insurer is concerned and the liability of insurer must be determined by the application of law intorduced by the amendment which had come into force before the date of the accident. In the matter of National Insurance Co. Ltd. v. Gangabai (supra) Single Bench of this Court held that he settled view of this Court is that Section 92-A of Motor Vehicles Act, 1939 is not retrospective in its operation and will not apply to pending cases. The Single Bench of this Court has considered the judgment of this Court in the matter of Karuram and Others Vs. Omprakash and Others, and Shamsher Khan''s case ( 1989 A. C. J. 394). The Court has also considered the judgment of this Court in the matter Bhagchand & another v. National Insurance Co. Ltd. (1989 A. C. J. 495). In the matter of New India Assurance Co. Ltd. v. Nafis Begum (supra) the Full Bench of this Court has held that rights and liabilites under Motor Vehicles Act, 1939 arise on happening of the accident and not on any subsequent date. It held that filing of the claim pettion before the Claims Tribunal has no relevance with regard to the rights and liabilities of the parties which should be governeed by the state of law existing on the date of the accident and not on the state of law existing on the date of filing of the claim petition or of the filing of the appeal in the case. It has been further held by the Full Bench that if the rights and liabilities of the parties were held to depend on any change of law effected subsequent to the accident, discriminatory, situation is likely to arise between the parties involved in accidents happening even on the same date. The date of accident should, therefore, be taken as date of application of the state of law existing then. The Full Bench further held that the legislative intent is clear from the express language used in the Act and there is no scope for any legal dynamism of idea of progressive social welfare involved in determining the date from which Section 92-A is to take effect. One has to look merely as to what is clearly said. There is no room for any intendment. There is no scope for equity or progressive nature of the legislative amendment coming into play. There is no scope for reading into the amending Act something about which it is unambiguous and unequivocal. Nothing is to-be implied. One has only to look fairly at the language used.

Shri Dandvate, learned counsel for the appellant also placed reliance on the Division Bench judgment of Bombay High Court in the matter of Zubeda Bano and others Vs. Maharashtra State Road Transport Corp. and others, wherein Bombay High Court held by considering the Full Bench judgment of Assam High Court in the matter of Assam Railways & Trading Co. Ltd. v. Saraswati Devi ( 1958 65 A. C. J. 394 Ass) that the compensation will be calculated on the basis of rates mentioned in the Schedule in force on the date of accident. The Division Bench also considened various cases while coming to the conclusion which has been indicated by the judgment quoted supra.

The entire amendment which has been brought into force by intorducing Act no. 22 of 84 does not show any specific intendment indicating that the rate mentioned in Schedule no. 4 of Amending Act has retrospective effect.

Learned counsel Shri Rawal appearing for respondents 1 to 3 has placed reliance on the judgment of this Court in the matter Mines Manager v. Waheedul Haque Abbasi (supra) for the prupose of canvassing his argument pointing out that the Amending Act has passed a welfare legislation and, therefore, should be given retrospective effect. I do not accept this argument on two counts. Firstly, that the Single Bench judgment of this Court has no force in view of the ratio which has been laid down by the judgment of Full Bench of this Court. So also it does not have any force in view of the judgment of the Supreme Court which has been quoted supra. When the enactment does not specifically indicate that the amendment has retrospective effect, charitable view cannot be adopted for the purpose of enforcing retrospectiveness to such amedment. Nothing can be read into the amending Act which has not been indicated by it, when there is no ambiguity and the provisions of amending Act are equivocal pointing to the direction indicated by the amending Act.

Thus, in view of discussion made above I have no hesitation in coming to the conclusion that the table which has been used for calculating the compensation to be granted in respect of accident which took place in 1.1.81 has to be by the rate which has been indicated by the prevelent schedule on that date. Thus, I dismiss the submision of Shri Rawal on this point.

Shri Dandvate submitted that by schedule indicated by Section 4 the compensation should be. Rs. 24,000/- because the limit which has been indicated is Rs. 700/- to 800/-. I do not agree with him because the said schedule shows further that the compensation should be at the rate of Rs. 27,000/- if the salary is from Rs. 800/- to Rs. 900/-. Both the entires are indicating the figure of Rs. 800/- as salary. Unfortunately, the schedule is not making any difference between the salary which is to the tune of Rs. 800/- per month and the salary which is more than Rs. 800/- and the salary which is less than Rs. 800/-. When the schedule is to be interpreted for granting compensation to workman, the pointer should always be in favour of the person who is to be benefited by the calculation done in accordance with the schedule. On this point the schedule is ambiguous and, therefore, the pointer should be definitely in favour of heirs of the deceased workman who are to get the benefit of compensation. Therefore, the submission advanced by Shri Dandvate urging that the compensation should be R.s 24,000/- and not. Rs. 27,000/- is without merit. However, I accept his submission for the purpose of reducing the amount of compensation from Rs, 63,808/- to 27,000/- because the learned Commissioner has committed error of caluclating the compensation payable to the heirs of deceased workman by applying the schedule which was not prevelant on the date of accident i. e. 1-1-1981.

Thus, the award of Rs. 63,808/- is hereby reduced to the sum of Rs. 27,000/-.

Shri Dandvate further submitted that the learned Commissioner has imposed penalty at the rate of 10% for not depositing the said amount of award within prescribed time limit without assigning any reason. If such penalty is to be imposed, the learned Commissioner is obliged to give reasons for doing so. He is obliged to pass speaking order disclosing the reasons which led him to impose such penalty. Penalty cannot be imposed unless there are good grounds to do so and unless the prson on whom the penalty is imposed has been given opportunity of being heard. Therefore, I uphold the submission made by Shri Dandvate on this point and remove the penalty which has been imposed on the appellant, keeping in view the submission made at Bar by Shri Dandvate that the entire amount of Rs. 63,808/- has been deposited in the office of the Commissioner with interest.

Thus, the appeal is partly allowed. The amount of compensation payable to the heirs of deceased Abid is hereby reduced to Rs. 27,000/- from Rs. 63,808/-. The heirs are permitted to withdraw that amount. The share of compensation payable to minor Ku. Sajida be kept invested with the nationalised bank, if not already kept. She would be entitled to get that amount after attaining the age of majority after moving an application to that effect before the learned Commissioner. The share which is receivable by other heirs of deceased to be given by the Commissioner be given by directing the bank to give it to them by crossed cheques. The amount of interest be invested in the name of minor Ku. Sajida because she is unmarried girl and still minor. That amount be used by her mother for her marriage expenses. The remaining amount be returned to appellant by the Commissioner after an application has been moved to that effect before the Commissioner.