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IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
Arun Bhansali, J.
Chandi Dan Charan - Appellant
Vs.
Jitendra Singh Parihar - Respondent
Civil Misc. Appeal No. 2410 of 2012 & 81 of 2013
Decided On : 04-09-2017
Motor Vehicles Act, 1988 – Section 166 – Employees Compensation Act, 1923 – Section 4A – Appeals Against the Compensation Awarded – These appeals are directed against the order dated 20.09.2012 passed by the Commissioner, Employees Compensation, whereby the Commissioner has awarded compensation to the tune of Rs. 4,61,136/- along with interest @ 12% per annum from the date of filing of application and has imposed penalty to the tune of Rs. 10,000/- on the employer – The Insurance Company has been directed to make payment of the amount of compensation and interest –While the claimant is aggrieved against the award of interest from the date of application, as it is claimed that the same should have been awarded from the date of accident, the Insurance Company is aggrieved against the award on the ground that the injury to claimant did not arise out of and during the course of his employment and the quantum of compensation as it is submitted that the claimant suffered 30% disablement only, however, the Commissioner has taken the disablement at 100% and has awarded compensation – Held, The said altercation and/or the intervention by the driver of the bus necessarily was for protecting the interests of the conductor, the bus and/or the owner and, therefore, in those circumstances, it cannot be said that the injury suffered by the claimant did not arise out of and in course of his employment – In view thereof, the plea raised by the Insurance Company that the accident did not arise out of and/or during the course of employment cannot be accepted – The submission that as despite losing vision in one eye, the appellant is capable of undertaking some other work, therefore, it cannot be said that he suffered 100% disablement, has no substance in view of the law laid down by Honble Supreme Court, wherein the test essentially pertains to whether the claimant is able to undertake the same work, which he was undertaking though with reduced ability and as after losing vision in one eye, the appellant cannot undertake the work as a driver, the disablement is 100% and, therefore, the finding of the Commissioner in this regard cannot be faulted – So far as the award of interest on the amount of compensation is concerned, the said issue also is no more res integra as Honble Supreme Court in the case of Saberabibi Yakubbhai Shaikh (supra), after taking into consideration conflicting judgments of Honble Supreme Court in the case of Pratap Narain Singh Deo (supra) and Kerala State Electricity Board v. Valsala K. & Anr., AIR 1999 SC 3502, came to the conclusion that the interest @ 12% per annum has to be paid from the date of accident – Once the application filed by the appellant seeking condonation of delay was accepted by the Commissioner and the application was decided on merits, the provisions of Section 4A(3) would apply and the said provision does not envisage any exception in a case where the delay has been condoned and in those circumstances, the award of interest by the Commissioner from the date of filing application cannot be sustained – Consequently, the appeal filed by the appellant-claimant, is allowed, the order passed by the Commissioner is modified to the extent that the claimant would be entitled to interest @ 12% per annum from after one month of the date of accident till the date of actual payment of compensation as awarded by the Commissioner – The appeal filed by the Insurance Company has no substance, the same is, therefore, dismissed – Order Accordingly
Arun Bhansali, J.
These appeals are directed against the order dated 20.09.2012 passed by the Commissioner, Employee's Compensation, Jodhpur ('the Commissioner'), whereby the Commissioner has awarded compensation to the tune of Rs. 4,61,136/- along with interest @ 12% per annum from the date of filing of application i.e. 07.09.2010 and has imposed penalty to the tune of Rs. 10,000/- on the employer. The Insurance Company has been directed to make payment of the amount of compensation and interest.
2. While the claimant is aggrieved against the award of interest from the date of application, as it is claimed that the same should have been awarded from the date of accident, the Insurance Company is aggrieved against the award on the ground that the injury to claimant did not arise out of and during the course of his employment and the quantum of compensation as it is submitted that the claimant suffered 30% disablement only, however, the Commissioner has taken the disablement at 100% and has awarded compensation.
3. Initially, the application for compensation was filed by the claimant-Chandi Dan Charan before the Motor Accident Claims Tribunal, Jodhpur ('the Tribunal') seeking compensation for the injuries/permanent disablement suffered by him.
4. The application was rejected by the Tribunal on 13.07.2010 on coming to the conclusion that there was no negligence on part of any of the parties impleaded and, therefore, the application under section 166 of the Motor Vehicles Act, 1988 was not maintainable.
5. Where after the present application before the Commissioner was filed on 07.09.2010, inter alia, with the averments that the claimant was employed on Bus No.RJ-19-P-1817 as driver. On 05.06.2005, when the Bus reached Bhatiya Chauraha, Ratanada, certain students on demanding fare, started beating the conductor Mahendra Singh with sticks and iron rods and when the claimant tried to intervene, he was also given beating, resulting in, injuries to his right eye, right shoulder and other parts of the body, as a result of which, he lost sight in right eye forever. Based on the said averments, compensation to the tune of Rs. 8,07,000/- along with interest @ 12% per annum was claimed.
6. The application was contested by the Insurance Company as well as the owner. The owner submitted that the liability to pay compensation was that of the Insurance Company. The Insurance Company contested the claim by indicating that the accident did not arise out of and in the course of the employment, therefore, the Insurance Company was not liable.
7. On hearing the parties, after evidence was led, the Commissioner came to the conclusion that the delay in filing the application was liable to be condoned, despite dismissal of application by the Tribunal, the claim application under the Employee's Compensation Act, 1923 ('the Act') was maintainable. The accident arose out of and in the course of employment, the claimant suffered permanent loss of vision on account of injuries suffered by him during the altercation, which took place. The Commissioner then came to the conclusion that though in Part-II of Schedule-I, the percentage of loss of earning capacity for the loss of vision of one eye is indicated as 30%, as the claimant cannot undertake the work as a driver, the loss was 100% and accepting the monthly salary of the claimant at Rs. 4,000/- and applying a factor of 192.14, awarded compensation to the tune of Rs. 4,61,136/-, awarded interest @ 12% per annum from the date of application i.e. 07.09.2010 till the actual compensation was paid.
8. It is submitted by learned counsel for the appellant-claimant that the Commissioner committed error in awarding interest from the date of application and not from the date of accident, which was 05.06.2005 when the accident took place, resulting in, the appellant losing vision in his one eye. It was submitted that the provisions of Section 4A(3) of the Act envisage the award of interest from the date of acciden
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