R.S. Mongia, CJ
1. Whether the amount of compensation under the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) is to be assessed under Section 4 as per the provisions as these exist on the date the accident occurs or on the date the Tribunal under Workmen's Compensation Act gives the award ?
2. The aforesaid question calls for our determination in the present appeal. Briefly stated, one Deodhar Mahato, driver of the bus No. AS-02/8046 (Super Bus) owned by Shri Tarini Kanta Bora which was duly insured with the Oriental Insurance Company Ltd., while driving the same in the course of his employment met with an accident on 10.7.1999 and unfortunately he died on 11.07.1999 due to the injuries suffered in the accident. The heirs of the deceased filed a claim petition for compensation under the Workmen's Compensation Act, 1923 before the Commissioner, Workmen's Compensation, Nagaon which was registered as Case No. NWC 92/99. The owner of the vehicle filed written statement wherein he denied the contentions of the claimant petitioner in all respects and also denied the responsibility for payment of compensation ; the plea being that the vehicle was duly insured with M/s Oriental Insurance Company Ltd., the appellant herein. The fact that the vehicle was duly insured with the appellant Insurance Company is not in dispute. The Insurance Company also filed a written statement denying its liability of payment of compensation on all available grounds After filing the written statement the owner of the vehicle did not produce any evidence. Similarly, the Insurance Company also did not adduce any evidence in support of its case. The Commissioner under the Workmen's Compensation Act assessed the income of the deceased as Rs. 4000 per mensem and on that basis assessed the compensation at Rs. 3,19,600 under Section 4 of the Act together with simple interest at 12 per cent per annum thereon and Rs. 4,000 as cost of funeral. The apportionment between the claimants was to be done at the time of final disposal of the claim. Against the aforesaid award the present appeal has been filed.
3. The question raised by the learned counsel for the appellant Insurance Company is that even if it is assumed that the Income of the deceased on the date of death, i.e., 11.07.1999 was Rs. 4,000 per mensem, yet as per Explanation II under Section 4 of the Act his monthly wages for the purpose of compensation would be reckoned as Rs. 2,000 Explanation II to Section 4 was amended only on 08.12.2000 and, therefore, the said amendment could not have been applied to the claims arising out of accidents which occurred prior to the amendment on 08.12.2000. The income could not be reckoned as Rs. 4,000 per mensem. That is the only point raised by the learned counsel for the appellant.
We have heard learned counsel for the parties. The matter should not detain us in view of a three Judges' judgment of the Apex Court in Kerala State Electricity Board and Anr. v. Valsalka K. and Anr., reported in (1999) 8 SCC 254. In that case, it was specifically held that cases where accident took place prior to the amendment, but decided subsequent to the amendment, such cases would not attract the enhanced rate introduced by the amendment. In the present case, on the date of the death i.e. 11.07.1999, Section 4 of the Act and Explanation II thereto reads as under -
'4. Amount of Compensation. - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely -
(a) Where death result from the injury
An amount equal to fifty per cent of the monthly wages of the deceased workman multiplied by the relevant factor.
or
An amount of fifty thousand rupees which ever is more.
(b) Where permanent total disablement results from the injury. An amount equal to sixty per cent of the monthly wages of the inured workman multiplied by the relevant factor.
or
An amount of sixty thousand rupees which ever is more.
... ..... .....
Explanation II - Where the monthly wages of a workman exceed two thousand rupees, his monthly wages for the purposes of Clause (a) and Clause (b) shall be deemed to be two thousand only.'
5. It may be observed here that prior to 15.05.1995 the figure 'two thousand rupee' in Explanation II was 'one thousand rupees' and with effect from 08.12.2000 the figure 'two thousand' has been substituted by 'four thousand rupees'. The Apex Court in the case of Kerala State Electricity Board (supra) relied upon a four Judges Bench decision in Pratap Narayan Singh Deo v. Srinivas Sabata, reported in (1976) 1 SCC 289 to hold that an employer becomes liable to pay compensation as soon as personal injury is caused to the workman by the accident which arose out of an incourse of employment. Thus, the relevant date for determination of the rate of compensation is the date of accident and not the date of adjudication of the claim. The view taken in Civil Appeal Nos. 16904-09 of 1996 New India Assurance Co. Ltd. v. V. K. Neelakandan and Ors. (now, reported in (1999) 8 SCC 256 decided on 6.11.1996 by a Division Bench of the Apex Court was specifically overruled. In Kerala State Electricity Board, reported in (1999) 8 SCC 254 the Full Bench view of the Kerala High Court in New India Assurance Company v. Alabi reported in (1998) 1 KLJ 951 (FB) was approved. A similar view has been taken by the Division Bench of this Court in judgment reported in Oriental Insurance Co. Ltd. v. Malati Devi and Ors., 2000 (1) GLT 595.
6. Learned counsel for the Respondent claimant, however, cited a Supreme Court judgment in Rathi Memon v. Union of India reported in (2001) 3 SCC 714. This case was under the Railways Act for compensation arising out of a Railway Accident, In that case it was held that the law prevailing at the time of determination of compensation and not the law prevailing at the time of accident is to be applied. The aforesaid judgment of the Apex Court in Kerala State Electricity Board (supra) was distinguished and it was observed that the said case was under the Workmen's Compensation Act where the Act itself provided the relevant procedure for calculating the compensation and, therefore, the said law could not be applied in case of the claim under the Railways Act.
7. In view of the above, we are of the opinion that the learned Commissioner under the Workmen's Compensation Act was not correct to apply Explanation II to Section 4 which existed at the time the award was given. Amendment in Explanation II to Section 4 came into force with effect from 08.12.2000 whereas the accident occurred on 11.07.1999 when figure 'rupees two thousand' occurred in Explanation II. Consequently, the compensation had to be calculated taking the income of the deceased to be under Explanation II as 'Rs. 2000' per mensem. Consequently, the compensation as awarded by the Tribunal, i.e., Rs. 3,19,600 will be reduced by half which will come to Rs. 1,59,800. The rest of the part of the award i.e. the amount will carry simple interest at 12% per cent per annum and Rs. 4,000 expenses of funeral is upheld. Final apportionment of the amount amongst the heirs be made by the Commissioner under Workmen's Compensation Act. The entire amount as awarded by the appellant before the Commissioner, Workmen's Compensation had been deposited by the appellant by virtue of the order of this Court. After retaining the amount whatever is due to the claimants the balance, as calculated above, if any, be refunded to the appellant.
8. The appeal is allowed to the aforesaid extent.