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BOMBAY HIGH COURT
S. B. Deshmukh, J.
Danial Nana Pathare — Appellant
versus
Tilaknagar Industries Ltd. and another — Respondents
F.A. No. 573 of 2003
Decided on : 13-4-2009
For appellant: U. S. Sawji
For respondents: V. N. Upadhye
IMPORTANT POINT
Any amendment in law cannot be made applicable to pending cases unless so intended by the legislature.
Headnote:(A) Workmen’s Compensation Act, 1923, - Compensation case – Worker meet with an accident – Compensation allowed – Assessed on the basis of applicable rules as available on the date of accident – Plea that by virtue of amending provisions coming into force before the date on decision entitled to compensation in term of amending provisions – Not proper – Amending provision not made applicable retrospectively – Date of accident as such and not the date of decision which is relevant.
(B) Civil Procedure Code, 1908, Section 100 – Appeal against compensation – Plea that appellant is entitled for the amount of Rs. 85,676/- but only paid Rs. 35,698/- the calculation is not proper and as per the law – Not formally admitted – Notice served upon respondent to address arguments for final disposal of appeal – Law point also intimated – Said point can be said to be substantial question of law.
Facts of the case :
Facts leading to the filing of present appeal are that the appellant is entitled for the amount of Rs. 85,676/- but only paid Rs. 35,698/- the calculation is not proper and as per the law. The calculation made by the respondent - 2 is incorrect and not as per law as the claim was settled on 7-11-1997 i.e. after the Amendment in the year 1995 in Workmen’s Compensation Act, 1923 and as per the settled principle the calculation ought to have been made as per the amendment.
Finding of the court :
The amending provisions of law coming into force after the date of arising of cause of action if not made applicable retrospectively cannot be given benefit of to the person who had suffered prior to coming into force of amending provisions of law.
PER COURT :- The respondents were put on notice by this Court by order dated 15-7-2008 for final disposal of the appeal on ground “g” which was considered to be the substantial question of law under section 30(2) of the Workmen’s Compensation Act, 1923 (“the said Act”).
Record was called for. Record has been received by this Court.
Shri Upadhye, learned Advocate appeared for respondent No.1. Today, he made a statement that he also appears on behalf of respondent No.2. He seeks time to file vakilpatra. His statement is accepted and taken on record. Time is granted, as prayed for.
2. Heard Shri Sawji, learned Advocate for the appellant and Shri Upadhye, learned Advocate for respondents.
3. Even though, there is no formal order of admission, respondents were put on notice for final disposal of the appeal on the following ground :
“(g). That, he is entitled for the amount of Rs. 85,676/- but only paid Rs. 35,698/- the calculation is not proper and as per the law. The calculation made by the respondent - 2 is incorrect and not as per law as the claim was settled on 7-11-1997 i.e. after the Amendment in the year 1995 in Workmen’s Compensation Act, 1923 and as per the settled principle the calculation ought to have been made as per the amendment
4. Today, after hearing learned counsel for the parties, I am disposing of this appeal finally with their consent. Learned counsel Shri Sawji for the appellant submits that even though the date of accident in the case on hand indisputably is 18-8-1995 the claim has been settled by the respondents on 7-11-1997. It is also not in dispute that the said Act has suffered amendment on 15-9-1995. According to learned counsel for the appellant, statutory provisions of the said Act on the date of settlement of the claim i.e. 7-11-1997 is applicable to the facts and not the date of accident. The learned trial Judge has applied the statutory provisions to the facts of the case on hand obtaining on 18-8-1995 incorrectly. He submits that the learned Judge ought to have decided the claim alleged by the appellant, in view of the amendment made enforceable from 15-9-1995. In support of his submissions, he relied upon two judgments, to which the reference would be made at the appropriate stage.
5. Shri Upadhye, learned Advocate for the respondents submits that the date of accident is material, meaning thereby that the provisions of the statute concerned, enforceable on the date of accident, requires to be taken into consideration, which has been justifiably considered by the learned trial Judge and no interference in this appeal is necessary. According to him, the ground which is accepted by this Court as a substantial question of law, in fact, does not involve such a substantial question of law. He prays for dismissal of the appeal.
6. Submission of learned counsel for the appellant is the only short question of law to be considered. According to learned counsel for the appellant, is the date of settlement of the claim i.e. 7-11-1997 is material and law operating in the field on 7-11-1997 ought to have been considered by the Court below.
“Substantial question of law”, a phrase, is not defined under the provisions of the• said Act. In fact, this phrase can be traced to section 100 of the Code of Civil Procedure. Said phrase is also not defined under the provisions of the said Code, though it is referred under section 100 of the Code. The Supreme Court has considered this phrase in the matter of Santosh Hazari vs. Purushottam Tiwari, 2001 (2) MhLJ (SC) 786 : AIR 2001 SC 965.
7. The judgment of the Supreme Court pointed out by learned counsel Shri Upadhye, is relevant in the facts and question tried to be raised by the appellant. It is in the matter of Kerala State Electricity Board vs. Valsala K. (1999) 8 SCC 254. The precise question was whether the amendment to section 4A of the said Act was made effective from 15-9-1995 enhancing the amount of compensation and rate of interest would be attracted
