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2012 Supreme(Ori) 259
High Court Of Orissa
V. GOPALA GOWDA, C.J.
M/s. Oriental Insurance Company Ltd., Berhampur : Appellant
Versus
Muduli Rama Rao and another : Respondents
MA No. 100 of 1999
Decided On : 17th August, 2012
For Appellant : Mr. G. P. Dutta
For Respondents: Mr. A. K. Choudhury (Amicus Curiae for R-1) Mr. S. N. Biswal (R-2)
Headnote:1. WORKMEN'S COMPENSATION ACT, 1923 - Sec. 2(1)(n)-Workman - Principle - Workman who is employed by the employer even as casual employee, his employment necessitated by chance in permanent or regular employment even if a person is employed casually, he would be termed as workman under the Act the purpose of employer's trade or business. (Para - 21)
2. WORKMEN'S COMPENSATION ACT, 1923 - Sec. 4-A - Interest - Date of payability - Interest awarded shall be calculated only from the date of judgment not from the date of claim petition.
By the amending Act, 14 of 1995, Section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim as the provision of Section 4-A (1) provides that compensation under Section 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 under Section 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 said legal position becomes clearer on a reading of Sub-section (2) of Section 4-A of the Act. 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." The said proposition of law supports the, case of the appellant. (Para - 11)
JUDGMENT
V. GOPALA GOWDA, C.J. – This appeal is filed by the Oriental Insurance Company represented by its Divisional Manager, questioning the correctness of the judgment dated 30.11.1998 passed by the Commissioner for Workmen's Compensation, Ganjam, Berhampur, W.C. Case NO.6 of 1997 urging various facts and legal contentions.
2. The claimant-respondent filed claim petition before the Commissioner for Workmen's Compensation seeking for compensation on the allegation that he was a workman in terms of Section 2(1)(n) of the Workmen's Compensation Act, 1923 (for short, "the Act") serving under respondent No.2 on contractual basis as helper. During the course of employment, he suffered injury and sustained loss of earning capacity. Therefore, the claim petition was filed seeking compensation. Learned Commissioner for Workmen Compensation after conducting trial directed the Insurance Company to pay compensation amount of Rs.29,281/-, which is challenged by the appellant in this appeal urging various facts and legal contentions.
3. It is urged by the learned counsel Mr. Dutta appearing on behalf of the appellant-Insurance Company that the judgment passed by the Commissioner is based on surmises and conjectures. Hence, the same is liable to be set aside.
4. It is contended that the Commissioner has erred in law in holding that respondent No.1 is a workman as defined under the Act and that the accident took place in course of his employment. Section 2(1)(n) of the Act defines that workman means any person other than a person whose employment is of casual nature. As such, if a person is employed in such category, he would not be a workman. Respondent No.1 has categorically averred in the claim application that he was working under respondent No.2-owner on contractual basis as helper when the regular helper was on leave. Therefore, the nature of the employment of respondent No.1 is casual. Hence the judgment passed by the Commissioner is liable to be set aside.
5. It is further contended that the Commissioner has erred in law in holding the applicant to be a workman particularly when the owner in his written statement at paragraph-3 has clearly averred that on the date of the accident respondent No.1 was engaged temporarily as helper Therefore, the impugned judgment is bad in law and is liable to be set aside.
6. Further, learned Commissioner has not taken into consideration all the police records, which shows that respondent No.1 was cleaner of the bus and sustained injury, and the cleaner is not covered under the terms of the policy. Respondent No.1 in collusion with the owner of the bus has filed claim case. Therefore, the impugned judgment is liable to set aside.
7. Further, the learned Commissioner has erred in law in holding the disability of respondent No.1 to the extent of 30% of the basis of the certificate granted by the CDMO, Gajapati, who has assessed the disability only at 40%, but the doctor has not been examined. Therefore, the learned Commissioner has erred in law not taking into consideration the legal position that in the absence of examination of the doctor no reliance could be placed on the disability certificate, as it is the only hearsay evidence and it is difficult to assess the extent of loss of earning capacity on the basis of the said certificate.
8. Further, the learned Commissioner has erred in law in not noticing that the injury mentioned in the disability certificate is not specified in the Schedule 'F' of the Act. Therefore, the qualified medical practitioner should assess the same which has not been done in this case. Therefore, the impugned judgment is bad in law and is liable to be set aside.
9. Further, the learned Commissioner has acted illegally with material irregularity in directing payment of 50% penalty and interest @ 12% per annum, if the amount is not paid within a month when the statute provides for 60 days for filing an appeal. As such, the impugned judgment is illegal and is liable to be set aside.
