National Insurance Company Limited and Another vs Mohammed

R. Gururajan, J.—This appeal is filed by the insurance company challenging the order of the Commissioner for Workmen''s Compensation, Mangalore, in WCA/CR-54/98/NF, dated 21.12.1999. The Respondent-workmen filed a claim petition before the Commissioner for Workmen''s Compensation and Labour Officer (for short the ''Commissioner'') seeking for compensation under Sections 3 and 4 of the Workmen''s Compensation Act (for short ''the Act''). Notice was issued by the Commissioner and the Respondent entered appearance. Matter was contested and after contest the Commissioner passed an order ordering compensation of Rs. 69,716/- together with interest at 12% payable by the insurance company from the date of accident till the date of deposit of the amount before the Commissioner.

Heard the learned Counsel for the parties.

Appellant has questioned the impugned order by contending that the Commissioner failed to apply the law laid down by this Court in ILR 1999 Kar 4703 (M/s. Navashankar Transport v. Dhakappa). It is contended that the Commissioner has applied the amended provision in the matter of compensation. The amended provision is not applicable since the accident has occurred prior to the date of amendment. In support of his case learned Counsel for the appellant also relies on the judgment of the Supreme Court in the case of Kerala State Electricity Board and Another Vs. Valsala K and Another, and judgment of this Court in Miscellaneous First Appeal No. 3812 of 1999, dated 28.1.2000 (National Insurance Company Limited v. Kuppuswamy).

Per contra, Counsel for the Respondent contends that the matter is covered by the judgment of the Supreme Court in the case of New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996. He also relies on the reported judgment of this Court in the case of United India Insurance Company Limited, Bangalore Vs. Venkataraju and Another, .

Admittedly, an actionable accident has occurred and a claim petition was filed before the Commissioner u/s 3 of the Act. The Commissioner has framed five issues. The first issue is with regard to the entitlement of compensation in terms of Section 3. After noticing the material facts, the Commissioner has answered the same in favour of the Respondent. The said finding is a finding of fact with which I would not interfere in this appeal u/s 30 of the Act.

In so far as issue No. 2 is concerned, the Commissioner has again on facts has ruled that the Respondent was getting a monthly income of Rs. 1,500/- and daily batta of Rs. 30/- from the employer. I do not want to interfere with this finding of fact in this appeal.

In so far as issue No. 3 is concerned, disability is fixed at 30%, which again is a finding of fact and I do not want to interfere in this appeal on these factual aspects in my appellate jurisdiction u/s 30 of the Act.

In so far as issue Nos. 4 and 5 are concerned, the Commissioner has granted the compensation following the judgment in the case of New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996. This order of the Commissioner is challenged by the insurance company on the ground that the amended provision is not applicable to this case.

Workmen''s Compensation Act is a special legislation for the benefit of workmen. This Act provides for a beneficial machinery for getting compensation for an accident arising out of and in the course of employment. The Act was amended by way of an amendment by Act 30 of 1995 w.e.f. 12.9.1995. The question in the case on hand is as to when the said amendment is applicable and to what type of cases. The issue is no longer res integra.

A larger Bench of the Hon''ble Supreme Court consisting of the three learned Judges of the Hon''ble Supreme Court in the case of Kerala State Electricity Board and Another Vs. Valsala K and Another, after noticing the case of New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996 has ruled that it is the amount of compensation payable on the date of the accident and not the amount of compensation on account of amendment made in 1995. For coming to this conclusion the Supreme Court relied on the Full Bench decision in Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, . The Supreme Court in Kerala State Electricity Board and Another Vs. Valsala K and Another, further ruled in para 4 reading as under:

A two judge Bench of this Court in New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996 however, took the view that Workmen''s Compensation Act, being a special legislation for the benefit of the workmen, the benefit as available on the date of adjudication should be extended to the workmen and not the compensation which was payable on th date of the accident. The two Judge Bench in Neelakandan''s case (supra), however, took the view that Workmen''s Compensation Act, being a special legislation for the benefit of the workmen, the benefit as available on the date of adjudication should be extended to the workmen and not the compensation which was payable on the date of the accident. The two judge Bench in Neelakandan''s case (supra) however, did not take notice of the judgment of the larger Bench in Pratap Narain Singh Deo''s case, as it presumably was not brought to the notice of their Lordships. Be that as it may, in view of the categorical law laid down by the larger Bench in Pratap Narain Sing Deo''s case the view expressed by the two Judge Bench in Neelakandan''s case is not correct.

Learned single Judge of this Court in the case of Navashankar Transport and Another Vs. Dhakappa Bin Subbanayak, has ruled that for the accidents that occurred upto the midnight of 14.9.1995, provisions of the old Act are applicable and not the provisions of the amended Act as they have no retrospective effect. Subsequently Anr. Single Judge in Miscellaneous First Appeal No. 3812 of 2000, dated 28.1.2000 (National Insurance Company Limited v. Kuppuswamy) ruled that the amendment Act is not applicable to an accident that occurred prior to the amendment Act. Recently, I have also in Miscellaneous First Appeal No. 1268 of 2000, dated 28.11.2000 taken a similar view.

Learned Counsel for the Respondent invites my attention to the two Judge bench decision of the Supreme Court in New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996 reading as under:

Keeping in view the scheme of the Act we are of the view that the only interpretation that can be given to the amendment is that if any benefit is conferred on the workmen and the said benefit is available on the date when the case is finally adjudicated, the said benefit should be extended to the workmen.

This Court in United India Insurance Company Limited, Bangalore Vs. Venkataraju and Another, following the judgment of the Supreme Court in New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996 has held that the amended provision by which "Rs. 2,000/-" were substituted is per se a part of procedural law and evidence. It does not determine the substantive rights. It is one of the well settled principle of law that the effect of amendment in the procedural law is no doubt taken to be retrospective, in the sense that the change in procedural law during the pendency of the proceeding, earlier to the change, will govern or control the trial; of cases than pending as well as those arising later by the charged procedural law, unless it is Otherwise provided in the Act itself no person has got a vested right with reference to the course of procedure or as to the mode or procedure of trial.

After noticing the case laws on the subject, I have no doubt in my mind in the light of the latest judgment of the Supreme Court rendered by a larger bench in the case of Kerala State Electricity Board v. Valasala AIR 1999 SC 3502, that the relevant date of determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. The Supreme Court has also laid down that view expressed by the two judge Bench in the case of New India Insurance Company v. V.K. Neelakandan and Ors., Civil Appeal Nos. 16904-16909 of 1996, dated 6.11.1996 is not correct. The judgment rendered in United India Insurance Company Limited, Bangalore Vs. Venkataraju and Another, is not correct in view of the subsequent judgment of the Supreme Court in Kerala State Electricity Board and Another Vs. Valsala K and Another, . After noticing the Neelakandan''s case the Supreme Court has ruled that the said judgment is not correct. Since the judgment in the case United India Insurance Company Limited, Bangalore Vs. Venkataraju and Another, is based on a judgment which is held to be not correct by the Supreme Court the said judgment of United India Insurance Company Limited, Bangalore Vs. Venkataraju and Another, is also not correct in the eye of law. The law of precedence is also well settled that the law laid down by a larger Bench of the Supreme Court has to be followed.

In the case on hand, admittedly, Commissioner has followed Neelakandan''s case which is held to be incorrect by the larger Bench of the Supreme Court. Therefore the award require my interference. Since the accident date is prior to the date of the amendment Act, the amendment Act cannot be made applicable to facts of the case. In this view of the matter, in so far as issue Nos. 4 and 5 are concerned, the said finding is set aside.

Miscellaneous First Appeal is partly allowed. Matter is remanded back to the Commissioner for fresh consideration in so far as issues Nos. 4 and 5 only, in the light of the judgment of the Supreme Court in Kerala State Electricity Board and Another Vs. Valsala K and Another, . Commissioner is directed to hear the parties and pass a considered order in accordance with law within three months from the date of receipt of copy of this order. Appellant has deposited compensation amount in terms of the award which is set aside by me in this appeal. The amount deposited before this Court by the appellant is ordered to be transferred to the Commissioner for Workmen''s Compensation. The said amount is not be disbursed until a final order is passed by the Commissioner. If there is any excess payment in the light of the final order to be passed in terms of this order, it is needless for me to say that the said excess amount has to be refunded to the insurance company. If the deposited amount falls short of the compensation to be determined by the Commissioner, the short fall must be made good by the insurance company.

Ordered accordingly. No costs.