NEW INDIA ASSURANCE CO. LTD vs KANA ASHA RABARI & 1

This First Appeal is filed by the appellant under Section 30 of the Workmen Compensations Act, 1923 praying for modifying the judgment and order dated 23.09.2004 passed by the learned Judge, Learned Commissioner, Labour Court, GandhidhamKutch in Workmen Compensation (NonFatal) No. 316 of 1996 (New No.86 of 1994), whereby the learned Commissioner directed the appellant and herein to pay compensation Rs.98,540/to the respondent No.1 from the date of accident with 15% interest within 30 days from the date of the order and further to pay Rs.2,000/towards the cost.

Heard Mr. K. V. Gadhia, learned advocate for the appellant and Mr. Sandeep Bhatt, learned advocate for the respondent No.1. Rule issued by this Court is duly served upon the respondent No.2, however, he did not remain present.

Mr. K.V. Gadhia, learned advocate for the appellant submits that the learned Commissioner has erred in directing the insurance company to pay compensation of Rs.98,540/alongwith 15% interest from the date of accident 10.02.1994 and Rs.2,000/cost. He submitted that the claimant had produced disability certificate of 30%, while in the deposition in chief, the claimant admitted to reduced the same to 15%. He then submitted that as per Dr. Henry H. Kessler, in case of a fracture of lower limb, 50% of disability should be considered for body as whole, however, the learned Commissioner has considered 100% disability. He then contended that interest is awarded at the rate of 15%, which is against the law. As per the provisions prevailing at the time of accident i.e. 1994, the Act provided for interest @ 6%. He relied upon the judgment of Apex Court rendered between Kerala State Electricity Board v/s. Valsala K, reported in 1999 (8) SCC 254. He further submits that the injury is nonschedule injury. As per Section 4(1)(c)(ii) of the WC Act, in case of nonschedule injury, assessment by qualified medical practitioner is mandatory. In the instant case, the doctor has assessed 30% disability and workman has admitted in his affidavit that he has no objection, if the disability is reduced to 15% from 30% even though the learned Commissioner has passed the award as if the workman has received 100% disability ignoring the provisions of the Act. He further contended that the complainant has not sustained any permanent disability and therefore, he is not entitled to get compensation at all.

Mr. Sandeep Bhatt, learned advocate for respondent No.1original claimant has submitted that the judgment and award passed by the learned Commissioner is just and proper. He learned advocate for the respondent No.1 has opposed the present appeal and submitted that as the claimant was driver, the learned Commissioner has not committed any error in awarding the compensation and therefore, the same requires no interference.

Having considered the submissions made by learned advocates for the parties and having carefully examined the material available on record, this Court finds substance in the submissions made by learned advocate for the appellantInsurance Company. The learned Commissioner has granted 100% disability. However, considering the nonschedule injury and nonexamination of doctor, it will be in fitness of things, if disability is reduced to 15%. as per Dr. Henry H. Kessler considering the fact that the claimant has received fracture injury on leg.

In result, the appeal is partly allowed. The reduced compensation would be as follow: Salary per month Rs.1,000/

Age of the Claimant is 35 years.

Relevant Factor 197.06

Disability 15

As per law, 50% of wages is to be considered.

500*197.06*15% = 14,780/.

It is also observed that as per Section 4 of the Act, at the relevant time, rate of interest was 6% and the learned Commissioner could not have granted beyond the statutory rates. The same is held by Hon''ble in Apex Court in the case of Kerala State Electricity Board (Supra), the claimant is entitled to compensation of Rs.14,780/alongwith at the rate of 6%. It is brought to the notice of the Court that at the relevant time, the claimant has withdrawn some amounts. If the amount so disbursed is more than the amount, the claimant is entitled to as held above, then the same shall not be recovered from the claimant.

In view of the above, the present appeal is partly allowed. Accordingly, the compensation comes to Rs.14,780/instead of Rs.98,540/. The rest of the amount alongwith proportionate interest to be refunded to the Insurance Company. It would be open to the insurance company to make appropriate application, with a copy to the learned Commissioner for refund of the amount as stated above i.e. Rs.83,760/alongwith proportionate interest. As and when such application is made, the learned Commissioner shall, after verifying the record and the details about the deposited amount, pass necessary orders in view of this judgment and refund the amount of Rs.83,760/and proportionate interest thereon to the insurance company.