IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 905 of 2001(C)
1. NEW INDI ASSURANCE CO.LTD
... Petitioner
Vs
1. K.MUHAMMEDKUNHI
... Respondent
For Petitioner :SRI.THOMAS MATHEW NELLIMOOTTIL
For Respondent :SRI.T.MADHU
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :05/12/2007
O R D E R
J.B. Koshy & K.Hema, JJ.
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M.F.A.No. 905 of 2001
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Dated this the 5th day of December, 2007
Judgment
Koshy,J.
First respondent in this appeal filed an application for
compensation before the Commissioner for Workmen’s
Compensation contending that he sustained serious injuries in an
accident during the course of employment. He was aged 33 years
and was having a monthly income of Rs.2,500/-. The wound
certificate shows that he sustained the injuries as a result of the
accident. He claimed an amount of Rs.2,00,000/-. The
Commissioner calculated an amount of Rs.98,856/- with interest at
the rate of 12% from the date of accident till the date of passing the
award. Interest payable till the date was Rs.61,291/- and thus total
compensation was Rs.1,60,147/-. It is also stated that if the amount
is not deposited within the time, the claimants are also entitled to
get interest at the rate of 12% for default till deposit. Disability was
assessed at 40%. The claimant who was examined as AW1 gave
evidence that he was a driver by profession and because of the
accident, he is unable to drive and he is entitled to compensation for
M.F.A.No.905/2001 2
100% loss of earning capacity. AW2 doctor who issued the medical
certificate deposed that he had disability of 50%. He has ankylosis
of Rt. knee joint following the injury and infection. He deposed that
the disability was assessed under the McBride’s scale, but,
considering the percentage of disability of a workman, it can be
reduced to 45%. Under section 4 (1) (c) (ii) of the Workmen’s
Compensation Act, Commissioner has to assess the compensation
on the basis of the certificate issued by a qualified medical
practitioner assessing loss of earning capacity. The Commissioner
has assessed the compensation on the basis of the loss of earning
capacity assessed by the medical practitioner. Compensation
payable under the Workmen’s Compensation Act for loss of one leg
is 90%. Here, as a result of the accident, apart from the shortening
of the leg, there was mal-union and he was unable to drive.
Considering these aspects and considering the loss of earning
capacity assessed by the doctor, the Commissioner fixed 40% as the
loss of earning capacity. We see no ground to interfere in the same.
2. Commissioner has taken Rs.2000/- as the monthly
income as the maximum salary that can be taken into consideration
at the time of accident though workman was earning more at the
time of accident. Thus, compensation was calculated as follows:
M.F.A.No.905/2001 3
2000 x 60 x 40 x 205.95 = Rs.98,856/-.
100 x 100
3. We note that the Commissioner has granted 12%
interest from the date of application till the date of the award and
thereafter, again, awarded interest at the rate 12% from the total
amount including interest from the date of award till deposit. It is
true that statutory interest payable is 12% from the date of
application to the date of payment as compensation fell due when
the accident occurred as held by the Supreme Court in KSEB v.
Valsala (1999 (3) KLT 348 SC) as well as Pratap Narain Singh Deo v.
Srinivas Sabata and another (AIR 1976 SC 222) and Maghar Singh v.
Jashwant Singh ((1998) 9 SCC 134). But, Commissioner cannot add
interest upto the date of award to the compensation amount and
then direct to pay 12% interest from the total award. Here, the
Commissioner calculated compensation payable as Rs.98,856/-
which is in accordance with the provisions of the Act. Thereafter,
the Commissioner calculated interest till the date of award as
Rs.61,291/- and interest was added up and total amount awarded
was Rs.1,60,147/- and then awarded 12% interest on Rs.1,60,147/-
from the date of award till the date of deposit. This is incorrect.
This will amount to awarding interest on interest. Compensation
M.F.A.No.905/2001 4
payable will be Rs.98,856/- with 12% simple interest per annum
from the date of application till the date of deposit. Here, the
amount was deposited on 12.7.2001. The appeal is disposed of
modifying the award accordingly.
J.B.Koshy
Judge
K. Hema
Judge
vaa
M.F.A.No.905/2001 5
J.B. KOSHY AND
K.HEMA,JJ.
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M.F.A. No. 905 of 2001
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Judgment
Dated:5th December, 2007