AO/124/2007 of UNITED INDIA INSURANCE CO. LTD. Vs OMKAR MISHRAM AND ANOTHER on 29 December 2008

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal Against Order No. 124 of 2007

United India Insurance Company Ltd. …Appellant

Versus

Shri Omkar Mishra & another … Respondents Mr. Pankaj Purohit, Advocate for appellant Mr. Gopal Narain, Advocate for respondent no. 2

Dated: December 29, 2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 30 of Workmen’s Compensation Act, 1923, has been preferred by the United India Insurance Co. Ltd., against the judgment and award dated 17.02.2007 passed by Commissioner, Workmen Compensation/Deputy Labour Commissioner, Uttaranchal, Haldwani, District Haldwani, in W.C.A. No. 20/2002, Shri Omkar Mishra versus General Manager, Khatima Fibers Ltd. and another.

Brief facts of the case, according to the claimant, are that on 29.2.1995 at about 8.30 a.m. claimant-Omkar Mishra was working as helper at Paper Machine in the factory of opposite party no. 2-Khatima Fibers Ltd. and while discharging his duties in the factory his right hand came in the contact with the machine and his right hand was grievously injured. Claimant was employed as Helper (Paper Machine) and his salary was Rs.1800/- per month and at the time of accident claimant was 36 years of age. The claimant sustained injuries on his right hand in an accident arising out of and during the course of his employment with Khatima Fibers Ltd. and on account of the same his right hand was operated. The claimant alleged that due to injuries sustained by him during the course of employment, he has become disabled. The claimant claimed a sum of Rs.1,00,000/- as compensation along with interest of 12% against opposite parties.

Opposite party no. 1-Khatima Fibers Ltd. filed written statement admitting the contents of claim petition in part. In the additional pleas, it has been stated that workmen of factory were insured with United India Insurance Company Ltd. by policy no. 080906/91/11/00042/94, which was valid upto 6.5.1995. The insurance company had been given information with regard to the said accident on 21.2.2005. Opposite party no. 1-employer also given financial help in the treatment of claimant-workman. The salary of claimant has been mentioned as Rs.1800/- per month, while actual salary of claimant was Rs.1431/- per month. Therefore, the liability to pay the amount of compensation, if any, is of insurance company.

Opposite party no. 2-insurance company filed its written statement and pleaded that opposite party no. 1-Khatima Fibers Ltd. filed a claim petition under Workmen’s Compensation Act and opposite party no. 2-insurance company has paid a sum of Rs.4746/- in order of policy no. 080906/91/11/00042/94. Therefore, opposite party no. 2 is not liable to pay any compensation.

The Workmen Compensation Commissioner after having considered the entire evidence available on record and hearing learned counsel for the parties, vide judgment and award dated 17.2.2007, awarded a sum of Rs.82,653/- to the claimant, against opposite party no. 2-United India Insurance Co. Ltd., in which a sum of Rs.50,244/- is included as compensation towards disability suffered by the claimant and Rs.4746/- which the insurance company has claimed that this amount has already been paid to the employer-Khatima Fibers Ltd. and a sum of Rs.32,409/- as interest at the rate of 6% per annum on the above amount w.e.f. 21.2.1995 to 5.10.2006.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant i.e. United India Insurance Co. Ltd. has preferred the present appeal before this Court.

Heard Sri Pankaj Purohit, learned counsel for appellant i.e. United India Insurance Co. Ltd., Sri Gopal Narain, learned counsel for respondent no. 2-Khatima Fibers Ltd. and perused the record. None has appeared on behalf of respondent no. 1-claimant.

Arguments

Learned counsel for the appellant-insurance company has submitted that learned Workmen Compensation Commissioner has committed a manifest error by not excluding a sum of Rs.4746/- from the awarded amount which the insurance company has already paid to the employer-Khatima Fibers Ltd. He has further submitted that learned Commissioner has awarded an exorbitant amount towards compensation and interest should not have been awarded from the date of accident.

I do not find any substance in the argument advanced by learned counsel for the appellant. Perusal of impugned judgment and award reveals that claimant-respondent no. 1 has suffered 40% disability due to injuries sustained by him in the accident. Disability certificate has been filed on record. The employer has admitted the employment of claimant with it and it has also been admitted that on 21.2.1995 claimant met with an accident during the course of his employment. The claimant was getting Rs.1431/- per month as salary and he was 37 years of age at the time of accident. Therefore, the learned Commissioner has rightly assessed the compensation of Rs.54,990/- after adopting relevant factors given in the Workmen’s Compensation Act.

So far as the submission of learned counsel for the appellant pertaining to payment of Rs.4746/- to the employer, is concerned, the insurance company has taken specific plea in its written statement that it has paid Rs.4746/- to the employer but this sum has neither been paid to the claimant nor deposited with the Workmen’s Compensation Commissioner. Therefore, the employer has rightly been held liable to pay the amount of Rs.4746/- plus interest @ 6% per annum, on the above amount, w.e.f. 21.2.1995 to 5.10.2006. It is pertinent to mention here that learned Commissioner has wrongly calculated the interest on the amount of Rs.4746/-. He has shown the interest of Rs.32,409/-, which apparently appears to be wrong, therefore, the claimant shall be entitled for interest at the rate of 6% per annum w.e.f. 21.2.1995 to 5.10.2006 on a sum of Rs.4746/- on the employer to be calculated by the Workmen’s Compensation Commissioner.

So far as liability fixed upon the insurance company is concerned, the learned Commissioner has awarded a sum of Rs.50,244/- as compensation and a sum of Rs.32,409/- as interest on this amount at the rate of 6% per annum w.e.f. 21.2.1995 to 5.10.2006. I do not find any illegality in the finding recorded by the learned Commissioner so far as liability fixed upon insurance company. As the claimant has not paid any amount as yet, therefore, the learned Commissioner was justified in awarding the interest from the date of accident.

For the reasons stated above, appeal lacks merit and is liable to be dismissed.

Accordingly, appeal is dismissed. The impugned judgment and award passed by Workmen’s Compensation Commissioner, is hereby confirmed.

SP

(B.C. Kandpal, J.)