United India Insurance Company Ltd. vs Sivagami and Others

T. Sudanthiram, J.—The Appellant herein - United India Insurance Company Limited, has preferred this Civil Miscellaneous appeal

challenging the order passed by the Commissioner for Workmen''s Compensation-II (Deputy Commissioner of Labour II), Chennai in W.C. No.

155 of 2000 dated 17.12.2007, awarding a compensation amount of Rs. 2,04,160/- to the legal heirs of the deceased Murugaian.

The brief facts of the case is that the deceased was working as a driver under the 6 Respondent herein who was the owner of the lorry bearing

Registration No. TN-28-5989. On 10.05.1996, the deceased was driving the lorry towards Dharadhavi Sirasingh, Gurdha District, Orissa State.

At about 10.00 p.m., a lorry bearing registration No. AP-16-U-5997 which came in the opposite direction dashed against the lorry driven by the

deceased. Therefore, the deceased sustained injuries. He was admitted in a hospital for two days. Then the deceased was brought in a Car to the

Pondicherry and admitted in Jipmer Hospital. After few days, he was discharged. The deceased died in his house on 07.06.1996. The legal heirs

of the deceased filed a petition claiming compensation for a sum of Rs. 2,01,660/-.

The 6 Respondent herein who is the owner of the vehicle filed a counter before the Tribunal admitting the accident that had occurred on

10.05.1996 in the Orissa State and also stated that the lorry had been insured with the Appellant herein. According to the employer, the deceased

was paid a sum of Rs. 1500/- per month as salary and Rs. 100/-as bata per day. The Appellant herein who is the insurer of the vehicle resisted the

claim, before the Tribunal.

To prove the case, on the side of the claimant, the wife of the deceased only was examined as witness and 9 exhibits were marked, and on the

side of the opposite party, no witness was examined and no document was marked.

The Deputy Commissioner of Labour, Chennai, after considering the evidence held that the deceased who was an employee of the 6th

Respondent met with an accident while he was on duty and died due to the injuries sustained by him and awarded a compensation amount of Rs.

2,01,660/- with interest payable at the rate of 12% per annum from the date of occurrence payable to the claimants.

The appeal preferred by insurer challenging the above said order has now come up for admission. The claimants/Respondents 1 to 5 filed a

caveat application.

The learned Counsel for the Appellant raised two substantial question of laws:

(i) ''Whether the learned Commissioner for Workmen''s Compensation is justified in holding that the driver Murugaian died only due to the injuries

sustained by him in the Motor Accident occurred on 10.05.1996; since no post mortem was conducted on the body of the deceased and no

relevant document is filed to establish, and no material evidence is let in to establish that the death occurred only due to the injuries sustained by the

deceased?

(ii) Has not the learned Commissioner for Workmen''s Compensation erred in awarding interest for the compensation amount from the date of

accident, since the compensation becomes due on the basis of the adjudication of the claim made and one month thereafter only the interest is

payable as per Section 4-A(3) of the Workmen''s Compensation Act.

The learned Counsel for the Respondents submitted that after the accident, the deceased was admitted in a private hospital in Orissa and as he

was advised for hospitalisation, the deceased was brought back to his place after two days and he was admitted in the Jipmer hospital,

Pondicherry. Being admitted in the Jipmer Hospital for few days, the deceased was sent home, but he died in his house after few days. The

deceased sustained head injury, and therefore, he had become semiconscious while he was in Orissa and even while he was admitted in the Jipmer

hospital, it is recorded in the Hospital record that the deceased had sustained head injury and the deceased had blurred vision. The deceased had

died within one month from the date of accident and it certainly it was only as a result of the head injury sustained by the deceased in the accident.

Ex.P.5, the Hospital record is marked in which the head injury is mentioned.

This Court considered the submission made by both parties and perused the records. The wife of the deceased examined herself as P.W.1 in

this case and she is the only witness in this case. The fact that the deceased was the driver of the lorry belonging to the 6th Respondent herein and

the accident had occurred in the Orissa State on 10.05.1996 is not denied in this case. Even in the counter filed by the owner of the lorry, the

accident is admitted. The copy of the FIR with regard to the accident is also marked as Ex.A.1. The Appellant herein also not denied the accident

while cross examining P.W.1. As per Ex.A.5, the discharge certificate issued by the Medical Officer, RFWC Tanel, the deceased was admitted on

10.05.1996 at 4.00 a.m., and discharged on 12.05.1996 at 5.00 p.m., and he was given treatment and according to that report, the deceased

remained semi-conscious for two days. The said certificate has been issued on 12.05.1996 by the Medical Officer. Subsequently, the deceased

got admitted in the Jipmer Hospital. As per the details given in the hospital record, Ex.A.5 it is mentioned that the deceased sustained head injury

with third nerve palm left side. He was also referred to the Ophthalmologist, since he had blurred vision. Though the deceased was sent from the

hospital again on 06.06.1996, he was seen by Doctor. It appears from the medical record that though the deceased had sustained some head

injury, there had been no diagnosis and no proper treatment was given. The accident had occurred in the year 1996 and during those periods to

notice the internal injuries on the head, scanning was not popular. There is every possibility for the victim to die due to the head injury sustained by

him. The deceased also died within a month from the date of accident. There is a proximity for the death of the deceased with the accident that

occurred and the head injury sustained by him. Though post mortem report is not available, as the deceased was not being admitted in the hospital

at the relevant time, it is not possible to conclude that the deceased had not died due to the injuries sustained by him. The deceased was aged only

33 years at the time of accident and death. There is no other intervening cause for the death of the deceased between the time of accident and the

date of death. It is not the case of the Appellant herein also that the deceased suffered any other injury or ailment like heart decease or stroke. Of

course, the claimants should have examined the concerned Doctor who had seen the deceased. But though the claim petition was filed in the year

2000, P.W.1 was examined only in the year 2007, Probably, as it was not possible to get the Doctor, the claimants have not chosen to examine

the Doctor. The non examination of the Doctor may not affect the case in view of the peculiar circumstance of this case.

This Court holds that the death of the deceased was only due to the head injury sustained by him in the accident that had occurred on

10.05.1996 in Orissa State.

The Commissioner for Workmen''s Compensation granted interest for the compensation amount at the rate of 12% per annum from the date of

accident.

Section 4-A(3) of the Workmen''s Compensation Act is as follows:

4-A. Compensation to be paid when due and penalty for default:

(1) ...

(2) ...

(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner

shall -

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at

such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by

notification in the Official Gazette, on the amount due, and

(b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest

thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty:

Provided that an order for the payment of penalty shall not be passed under Clause (b) without giving a reasonable opportunity to the employer to

show cause why it should not be passed.

Explanation: For the purpose of this Sub-section,""scheduled bank"" means a bank for the time being included in the Second Schedule to the

Reserve Bank of India Act, 1934 (2 of 1934).

It is observed in the decision of the Honourable Supreme Court in National Insurance Co. Ltd., v. Mabasir Ahmed and Anr. reported in 2007

(1) TN MAC 214(SC):2007(2) L.W. 700. as follows:

Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because

Section 4-A(1) prescribes that compensation u/s 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of

adjudication of the claim made. The adjudication u/s 4 in some cases involves the assessment of loss of earning capacity by a qualified medical

practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of

Sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not

accept the liability for compensation to the extent claimed. The crucial expression is ""falls due"". Significantly, legislature has not used the expression

from the date of accident."" Unless there is an adjudication, the question of an amount falling due does not arise.

In view of the ratio laid down by the Honourable Supreme Court, the order of the learned Commissioner for Workmen''s Compensation to

pay the interest at the rate of 12% per annum from the date of the accident is set aside and the interest is payable if the compensation amount has

not been deposited within 30 days from the date of the order i.e., 17.12.2007.

The appeal is allowed only to the extent indicated above. There shall be no order as to costs. Consequently, M.P. No. 1 of 2009 is closed.