NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION versus SMT. SUJATHA on 2 November 2018

Issues

NORTH EAST KARNATAKA ROAD TRANSPORTCORPORATION

v.

SMT. SUJATHA

(Civil Appeal No. 7470 of 2009)

NOVEMBER 02, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Workmen’s Compensation Act, 1923: s.30 – Appeal againstthe order of Commissioner – Scope of interference – Held: Theappeal under s.30 of the Act to the High Court against the order ofthe Commissioner lie only against the specific orders set out in clause(a) to (e) of s.30 of the Act with a further rider contained in firstproviso to the Section that the appeal must involve substantialquestion of law – In the instant case, employee died while on dutydue to heart attack – The Commissioner allowed the claim petitionfiled by widow awarding Rs.3,79,120/- – High Court upheld thedecision of the Commissioner – On appeal, held: The Commissionerdecided all the material questions arising in the case properly onthe basis of evidence adduced by the parties and rightly determinedthe compensation payable to the respondent – It was, therefore,rightly affirmed by the High Court on facts – The concurrent findingsof fact of the two courts below are binding – Even otherwise, therewas no ground to call for any interference on any of the factualfindings – None of the factual findings were found to be eitherperverse or arbitrary or based on no evidence or against anyprovision of law – These findings are upheld.

Workmen’s Compensation Act, 1923: s.4-A – Interest – Grantof – The Commissioner allowed the claim petition with direction tothe appellant-employer to deposit the awarded sum within 45 daysfailing which the awarded amount would carry interest @ 12% p.a.– Held: The Commissioner awarded the interest to the respondents@ 12% per annum on the awarded sum but it was awarded from theexpiry of 45 days from the date of order and that too, if the appellantfailed to deposit the awarded sum within 45 days – This directionof the Commissioner in awarding the interest on the awarded sumwas contrary to law laid down in Pratap Narain’s case and,

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Atherefore, not legally sustainable – In the light of this, even thoughthe respondent did not challenge this direction yet the question beinga pure question of law, with a view to do substantial justice to therespondent, the order of the Commissioner is modified in respondent’sfavour to the extent that the awarded sum shall carry interest @12% p.a. from the date of accident – Interest.B

Disposing of the appeal, the Court

HELD: 1.1 The questions as to whether the employee metwith an accident, whether the accident occurred during the courseof employment, whether it arose out of an employment, how andCin what manner the accident occurred, who was negligent incausing the accident, whether there existed any relationship ofemployee and employer, what was the age and monthly salary ofthe employee, how many are the dependents of the deceasedemployee, the extent of disability caused to the employee due toinjuries suffered in an accident, whether there was any insuranceDcoverage obtained by the employer to cover the incident etc. aresome of the material issues which arise for the just decision ofthe Commissioner in a claim petition when an employee suffersany bodily injury or dies during the course of his employmentand he/his LRs sue/s his employer to claim compensation underEthe Act. These questions are essentially the questions of factand, therefore, they are required to be proved with the aid ofevidence. Once they are proved either way, the findings recordedthereon are regarded as the findings of fact. [Paras 9-10][1047-G-H, 1048-A-C]F1.2 The appeal provided under Section 30 of the Act to theHigh Court against the order of the Commissioner is not like aRegular First Appeal akin to Section 96 of the Code of CivilProcedure, 1908 which can be heard both on facts and law. Theappellate jurisdiction of the High Court to decide the appeal isconfined only to examine the substantial questions of law arisingGin the case. [Paras 11-12][1048-C-E]

2.1 When an employer files the appeal, he is under a legalobligation to deposit the entire awarded sum in terms of secondproviso to Section 30 of the Act as a pre-condition to file theappeal in the High Court except where the appeal is filed againstHthe order falling in clause (b). It is only when the employer deposits the entire awarded money along with the memo of appealduly certified by the Commissioner, his appeal is regarded asbeing properly filed in conformity with the requirement of Section30 of the Act. Such appeal is then heard on the question ofadmission with a view to find out as to whether it involves anysubstantial question of law or not. Whether the appeal involves asubstantial question of law or not depends upon the facts of eachcase and needs an examination by the High Court. If thesubstantial question of law arises, the High Court would admitthe appeal for final hearing on merit else would dismiss in liminiwith reasons that it does not involve any substantial question/sof law. [Paras 13-15][1048-E-H; 1049-A]

2.2 In the instant case, the appeal before the High Courtdid not involve any substantial question of law on the materialquestions. In other words, the Commissioner decided all thematerial questions arising in the case properly on the basis ofevidence adduced by the parties and rightly determined thecompensation payable to the respondent. It was, therefore, rightlyaffirmed by the High Court on facts. In this view of the matter,the findings being concurrent findings of fact of the two courtsbelow are binding on this Court. Even otherwise, there is noground to call for any interference on any of the factual findings.None of the factual findings are found to be either perverse orarbitrary or based on no evidence or against any provision of law.These findings are upheld. [Paras 16, 17][1049-B-C]

3. The grant of interest on the awarded sum is governed bySection 4-A of the Act. The Commissioner awarded the interestto the respondents at the rate of 12% per annum on the awardedsum but it was awarded from the expiry of 45 days from the dateof order and that too, if the appellant failed to deposit the awardedsum within 45 days. This direction of the Commissioner inawarding the interest on the awarded sum is contrary to law laiddown in Pratap Narain’s case and hence not legally sustainable.In the light of this, even though the respondent did not challengethis direction yet the question being a pure question of law, thisCourt with a view to do substantial justice to the respondentconsider it just and proper to modify the order of theCommissioner in respondent’s favour. The order of the AB

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ACommissioner is modified in favour of the respondent to theextent that the awarded sum of Rs. 3,79,120/- shall carry interestat the rate of 12% per annum from the date of accident i.e.06.04.1999. [Paras 18-20, 26-30][1049-D-E; 1051-B-G]

Pratap Narain Singh Deo v. Srinivas Sabata & Anr.B(1976) 1 SCC 289 : AIR 1976 SC 222 : [1976] 2 SCR872; Kerala State Electricity Board & Anr. v. Valsala K.& Anr. (1999) 8 SCC 254 : AIR 1999 SC 3502 : [1999]2 Suppl. SCR 657 – followed.

National Insurance Company Ltd v. Mubasir Ahmed &CAnr. (2007) 2 SCC 349 : [2007] 2 SCR 117; OrientalInsurance Company Ltd. v. Mohmad Nasir & Anr.(2009) 6 SCC 280 : [2009] 8 SCR 829; OrientalInsurance Company Ltd v. Siby George and others(2012) 12 SCC 540 : [2012] 6 SCR 1079 – referredto.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7470of 2009F

From the Judgment and Order dated 29.11.2006 of the HighCourt of Karnataka at Bangalore in M.F.A. No. 4170/2002(WC).

Ms. Anitha Shenoy, Adv. for the Appellant.

The Judgment of the Court was delivered byGABHAY MANOHAR SAPRE, J.

1. This appeal is directed against the final judgment and orderdated 29.11.2006 passed by the High Court of Karnataka at Bangalorein M.F.A. No.4170 of 2002 whereby the High Court dismissed the H

appellant’s appeal and confirmed the order dated 23.04.2002 passed bythe Commissioner for Workmen’s Compensation (Labour Court), Bellary(hereinafter referred to as “the Commissioner”).

2. The issue involved in this appeal lies in a narrow compass. It isclear from the facts mentioned hereinbelow.

3. One Mallikarjuna was an employee of the appellant-a StateRoad Transport Corporation for the State of Karnataka working as adriver. He died while he was on duty on 06.04.1999 when he felt pain inhis chest and suffered heart attack.

4. The respondent is the wife of deceased Mallikarjuna. Therespondent filed a claim petition before the Commissioner under theWorkmen’s Compensation Act, 1923 (for short “the Act”) claimingcompensation for the death of her husband Mallikarjuna. The appellant(employer) contested the claim petition.

5. By order dated 23.04.2002, the Commissioner allowed the claimpetition and awarded a sum of Rs.3,79,120/- with a direction to theappellant to deposit the awarded sum within 45 days, failing which, theawarded amount would carry interest at the rate of 12% per annum.

6. The employer (appellant herein) felt aggrieved and filed appealin the High Court of Karnataka at Bangalore. By impugned order, theHigh Court dismissed the appeal, which has given rise to filing of thisspecial leave to appeal by the employer in this Court.

7. So the question, which arises for consideration in this appeal iswhether the High Court was justified in dismissing the employer’s appealand thereby was justified in upholding the order of the Commissioner.

8. None appeared for both the parties. We, therefore, perused therecord of the case. On perusal of the record, we are inclined to modifythe order of the Commissioner dated 23.04.2002 in favour of therespondent to the extent indicated infra.

9. At the outset, we may take note of the fact, being a settledprinciple, that the question as to whether the employee met with anaccident, whether the accident occurred during the course ofemployment, whether it arose out of an employment, how and in whatmanner the accident occurred, who was negligent in causing the accident,whether there existed any relationship of employee and employer, what A

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Awas the age and monthly salary of the employee, how many are thedependents of the deceased employee, the extent of disability caused tothe employee due to injuries suffered in an accident, whether there wasany insurance coverage obtained by the employer to cover the incidentetc. are some of the material issues which arise for the just decision ofthe Commissioner in a claim petition when an employee suffers anyBbodily injury or dies during the course of his employment and he/his LRssue/s his employer to claim compensation under the Act.

10. The afore-mentioned questions are essentially the questionsof fact and, therefore, they are required to be proved with the aid ofevidence. Once they are proved either way, the findings recorded thereonCare regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the HighCourt against the order of the Commissioner lie only against the specificorders set out in clause (a) to (e) of Section 30 of the Act with a furtherrider contained in first proviso to the Section that the appeal must involveDsubstantial question of law.

12. In other words, the appeal provided under Section 30 of theAct to the High Court against the order of the Commissioner is not likea Regular First Appeal akin to Section 96 of the Code of Civil Procedure,1908 which can be heard both on facts and law. The appellate jurisdictionEof the High Court to decide the appeal is confined only to examine thesubstantial questions of law arising in the case.

13. When an employer files the appeal, he is under a legal obligationto deposit the entire awarded sum in terms of second proviso to Section30 of the Act as a pre-condition to file the appeal in the High CourtFexcept where the appeal is filed against the order falling in clause (b).

14. It is only when the employer deposits the entire awarded moneyalong with the memo of appeal duly certified by the Commissioner, hisappeal is regarded as being properly filed in conformity with therequirement of Section 30 of the Act.

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15. Such appeal is then heard on the question of admission with aview to find out as to whether it involves any substantial question of lawor not. Whether the appeal involves a substantial question of law or notdepends upon the facts of each case and needs an examination by theHigh Court. If the substantial question of law arises, the High Court H

would admit the appeal for final hearing on merit else would dismiss inlimini with reasons that it does not involve any substantial question/s oflaw.

16. Now coming to the facts of this case, we find that the appealbefore the High Court did not involve any substantial question of law onthe material questions set out above. In other words, in our view, theCommissioner decided all the material questions arising in the caseproperly on the basis of evidence adduced by the parties and rightlydetermined the compensation payable to the respondent. It was,therefore, rightly affirmed by the High Court on facts.

17. In this view of the matter, the findings being concurrent findingsof fact of the two courts below are binding on this Court. Even otherwise,we find no good ground to call for any interference on any of the factualfindings. None of the factual findings are found to be either perverse orarbitrary or based on no evidence or against any provision of law. Weaccordingly uphold these findings.

18. This takes us to examine the next question which was wronglydecided by the Commissioner and the High Court also did not notice theerror committed by the Commissioner.

19. The question relates to grant of interest on the awarded amountand further, from which date, it is to be awarded to the claimant(respondent).

20. The grant of interest on the awarded sum is governed bySection 4-A of the Act. The question as to when does the payment ofcompensation under the Act “becomes due” and consequently what isthe point of time from which interest on such amount is payable asprovided under Section 4-A (3) of the Act remains no more res integraand is settled by the two decisions of this Court.

21. As early as in 1975, a four Judge Bench of this Court in PratapNarain Singh Deo Vs. Srinivas Sabata & Anr. (1976) 1 SCC 289:AIR 1976SC 222 speaking through Singhal, J. has held that an employerbecomes liable to pay compensation as soon as the personal injury iscaused to the workman in the accident which arose out of and in thecourse of employment. It was accordingly held that it is the date of theaccident and not the date of adjudication of the claim, which is material.

22. Another question analogues to the main question arose before A

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22. Another question analogues to the main question arose before A

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Athe Three Judge Bench of this Court in the case of Kerala StateElectricity Board & Anr. Vs. Valsala K. & Anr. (1999) 8SCC 254:AIR 1999SC 3502 as to whether increased amount of compensationand enhanced rate of interest brought on statute by amending Act 30/1995 with effect from 15.09.1995 would also apply to cases in which theaccident took place before 15.09.1995. Their lordships, placing relianceBon the law laid down in Pratap Narain’s case (supra) held that sincethe relevant date for determination of the rate of compensation is thedate of accident and not the date of adjudication of the claim by theCommissioner and hence if the accident has taken place prior to15.09.1995, the rate applicable on the date of accident would govern theCsubject.

23. After these two decisions, this Court in two cases (both by theTwo Judge Bench) viz. National Insurance Company Ltd vs. MubasirAhmed & Anr. (2007) 2 SCC 349 and Oriental Insurance CompanyLtd. vs. Mohmad Nasir & Anr. (2009) 6 SCC 280 without noticingDthe law laid down in Pratap Narain and Valsala cases (supra) took acontrary view and held that payment of compensation would fall dueonly after the Commissioner’s order or with reference to the date onwhich the claim application is made.

24. This conflict of view in the decisions on the question wasEnoticed by this Court (Two Judge Bench) in Oriental InsuranceCompany Ltd vs. Siby George and others (2012) 12 SCC 540. JusticeAftab Alam speaking for the Bench referred to afore-mentioned decisionsand explaining the ratio of each decision held that since the two laterdecisions rendered in the cases of Mubasir and Mohmad Nasir (supra)which took contrary view without noticing the earlier two decisions ofFthis Court rendered in Pratap Narain and Valsala cases (supra) by thelarger Benches (combination of four and three Judges respectively) andhence later decisions rendered in Mubasir and Mohmad Nasir cases(supra) cannot be held to have laid down the correct principles of law onthe question and nor can, therefore, be treated as binding precedent onGthe question.

25. In other words, the law laid down in Pratap Narain andValsala cases (supra) was held to hold the field through out as layingdown the correct principle of law on the subject. The Two Judge Benchin Oriental Insurance Company Ltd vs. Siby George and others (supra) accordingly followed the principle of law laid down in PratapNarain and Valsala cases (supra) and decided the case instead offollowing the law laid down in Mubasir and Mohmad Nasir cases(supra) which was held per incuriam.

26. Now coming to the facts of this case, we find that theCommissioner awarded the interest to the respondents at the rate of12% per annum on the awarded sum but it was awarded from the expiryof 45 days from the date of order and that too, if the appellant failed todeposit the awarded sum within 45 days.

27. In other words, if the appellant had deposited the awardedsum within 45 days from the date of the order then the respondent wasnot entitled to claim any interest on the awarded sum, but if the appellanthad failed to deposit the awarded amount within 45 days, then therespondent was entitled to claim interest at the rate of 12% per annumfrom the date of the order.

28. In our opinion, the afore-mentioned direction of theCommissioner in awarding the interest on the awarded sum is contraryto law laid down by this Court in Pratap Narain’s case (supra) andhence not legally sustainable.

29. In the light of the forgoing discussion, even though therespondent did not challenge this direction by filing any appeal in theHigh Court nor challenged it by filing any appeal in this Court too, yet thequestion being a pure question of law, this Court with a view to dosubstantial justice to the respondent consider it just and proper to modifythe order of the Commissioner in respondent’s favour so as to make thesame in conformity with the law laid down by this Court in the abovereferred two decisions (supra).

30. Accordingly and in view of the foregoing discussion, the orderof the Commissioner dated 23.04.2002 is modified in favour of therespondent to the extent that the awarded sum of Rs. 3,79,120/- shallcarry interest at the rate of 12% per annum from the date of accidenti.e. 06.04.1999.

31. The Commissioner is accordingly directed to work out thetotal amount payable by the appellant to the respondent in terms of theorder passed by this Court.

32. Since no one appeared for the appellant as well as respondent A

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Ain this case, the Registry shall send a copy of this order to theCommissioner, the appellant and the respondent respectively within oneweek.

33. The Commissioner, on receipt of the order, will issue notice tothe parties and calculate the total amount to enable the appellant to depositBthe same within one month for being paid to the respondent after dueverification.

34. The appeal stands accordingly disposed of with afore-mentioned directions and modifications in the order of the Commissionerdated 23.04.2002 passed in case No. KAB/KNP/7/985/99.

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Devika Gujral

Appeal disposed of.

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