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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.290/2004
APPELLANTS:- 1. Smt. Shakuntala wd/o Mulchand Yadav
Age 40 years, Occ. : house-wife.
2. Ku. Rupali d/o Mulchand Yadav
Age 19 years, Occ. Student.
3. Ku. Deepali d/o Mulchand Yadav
Age 17 years, Occ. Student.
4. Pawan s/o Mulchand Yadav
Age 15 yars, Occ. Student.
5. Yogesh s/o Mulchand Yadav
Age 13 years, Occ.: Student.
6. Brijlal Ramfal Yadav
Age 73 years, Occ. : Retired.
Appellants No. 3 to 5 are minors and hence
through their natural guardian mother
i.e. applicant No.1.
All the appellants No.1 to 6 are R/o
Dhamodiya Plot No.12, Paratwad,
Tq. Achalpur, Dist. Amravati.
...V E R S U S...
RESPONDENTS:- 1. Deputy Conservator of Forest
East Melghat Division, Head Quarter -
Chikhaldara, Tq. Chikhaldara,
Dist. Amravati - 444608.
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2. Conservator of Forest,
Amravati Circle, Amravati Office,
Camp Amravati, Tq. & Distt. Amravati.
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[Shri S.A. Marathe, Adv. for appellants]
[Shri M.P. Badar, Adv. for respondents]
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CORAM:- A.B. CHAUDHARI, J.
Date of reserving the judgment : 15.07.2009.
Date of pronouncing the judgment : 21.07.2009
JUDGMENT
1. Being aggrieved by the order dated 23.3.2004, made by
the Commissioner for Workmen’s Compensation, Amravati in
W.C.A. No.3/2002, rejecting the application (Exh.1), the present
appeal was filed in this Court by the claimants.
2. Heard learned Counsel for appellants, who argued that
the appellants were entitled to compensation to the tune of
Rs.3,32,580/- as claimed in the application but the Commissioner
for Workmen’s Compensation upheld the stand of the respondents
that amount of Rs.1,69,510/- only was payable as the amendment
to Sections 4 and 4-A of the Workmen’s Compensation Act,1923,
made by Act No.30 of 1995 w.e.f. 15.9.1995 was not applicable in
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the case of the appellants, which is contrary to the judgment of
Kerala High Court in the case of Oriental Insurance Company
Ltd…Versus…Asokan, reported in 1997 (1) CLR 1039, in which
reliance was placed on the judgment of the Supreme Court in Civil
Appeal Nos.16904 to 16909, decided on 6.11.1996 between New
India Assurance Co. Ltd. …Versus…V.K. Neelakandan and others.
He then submits that the issue is covered by the said supreme
Court judgment, dated 6.11.1996 and accordingly this Court
should dispose of the present appeal.
3. Per contra, learned Counsel for respondents opposed the
appeal and argued that the amendment by Act No.30 of 1995
effective from 15.9.1995 cannot have retrospective application
and therefore, the amount payable under Sections 4 and 4-A of
the Workmen’s Compensation Act cannot be claimed
retrospectively by virtue of amendment of 1995. I had adjourned
the matter to enable learned Counsel for respondents to find out if
there is any judgment contrary to the one in the case of Oriental
Insurance Company Limited…Versus…Asokan, cited supra, and the
Supreme Court judgment in the case of New India Assurance Co.
Ltd…Versus…V.K. Neelakandan and others. However, on
15.7.2009 when the case was heard finally, learned Counsel for
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respondents stated at the bar that there is no contrary judgment
of any High Court or the Hon’ble Supreme Court.
Following substantial question of law arises for my determination.
Whether the amendment of Sections 4 and 4-A of the
Workmen’s Compensation Act, 1923, made by Act No.30 of 1995
w.e.f. 15.9.1995, enhancing the amount of compensation and rate
of interest, would be attracted to cases where the claims in
respect of death or permanent disablement resulting from an
accident caused during the course of employment, took place
prior to 15.9.1995 ?
4. I have gone through the impugned order in the present
appeal and the said judgment of Kerala High Court cited by
learned Counsel for appellants. In the absence of any assistance
from both the learned Counsel for the rival parties, I found that
following is the existing legal position.
5. In Pratap Narain Singh Deo…Versus…Srinivas
Sabata and another, reported in 1976 (1) Supreme Court
Cases 289, the four-Judge Bench of the Hon’ble Supreme Court
held that the employer became liable to pay compensation as
soon as personal injury was caused to the workman by the
accident which admittedly arose out of and in the course of
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employment. There was no suspension of the compensation
pending settlement. In the aforesaid judgment, thus, it was
clearly held that what was relevant was the date of accident for
calculating the amount of compensation and not the date of
adjudication while interpreting unamended provisions of Section
4-A. In New India Assurance Company Limited…Versus…V.K.
Neelakandan and others (Civil Appeal Nos.16904 to 16909 of 1996,
decided on 6.11.1996) [judgment quoted at page No.256 in 1999
(8) Supreme Court Cases, 254] the two-Judge Bench of the Hon’ble
Supreme Court found that the wages of the workmen on the date
of accident though were @ Rs.1,000/- per month, what was
relevant was the date of adjudication on which date the workmen
would have drawn wages @ Rs.1800/- per month and therefore,
the Supreme Court took into account wages @ Rs.1800/- per
month i.e. on the date of adjudication and accordingly granted the
compensation. Thus, the Supreme Court in that judgment held
that since rights of the workmen were being determined, the
relevant date would be the date of adjudication and not the date
of accident since the Act is a special legislation for the benefit of
labour. In the decision in the case of Oriental Insurance Company
Ltd. ..Versus…Asokan, cited supra, the Division Bench of the Kerala
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High Court relied on the said observation of the Supreme Court in
the case of New India Assurance Co. Ltd…Versus…V.K.
Neelakandan and others and held that the date of adjudication
and not the date of accident was relevant for applying the
amendment.
6. In United India Insurance Co. Ltd….Versus…Alavi,
reported in 1998 (1) KLT 951, the Full Bench of Kerala High Court
held thus :
“There is nothing to indicate that the
amended provisions would operate retrospectively.
In fact S. 1 (2) of Act 30 of 1995 itself says that the
amended provisions would come into force on such
date or dates as the Central Government may bynotification in the Official Gazette, appoint and
different dates may be appointed for different
provisions of this Act. In fact, Legislature has left it
to the Central Government to fix the dates fromwhich various provisions have come into effect.
Further, when an Amendment Act proposes to give
different dates of commencement to different
Sections, there is a presumption against
retrospectivity. If the Legislature wanted to have
the provisions of the Act to operate retrospectively
the same would have been provided in the
Amendment Act itself. It is a well settled rule of
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construction that no provisions in a statute should
be given retrospective effect unless the Legislature
by express terms or by necessary implication has
made it retrospective, and that when a provision is
made retrospective, care should be taken not to
extend its retrospective effect beyond what was
intended. The general presumption is that every
statute is prima facie prospective unless it is
expressly or by necessary implication made to have
retrospective effect. Right to claim compensation
as well as the obligation to pay the same are
created by the statute itself. It is well settled rule of
interpretation that if the law is procedural, there is,
no doubt, a presumption that it applies to pending
proceeding. If the law is substantive in nature, the
normal presumption against retrospectivity still
holds good, subject to the principle that the court
must look to the question whether the rights of the
parties at the commencement of the proceedings
were intended to be modified either expressly or by
necessary implication.
If the amended provisions are given effect
to in the matter of awarding enhanced
compensation even with regard to the accident
which occurred prior to 15.9.1995, that will affect
the existing rights and obligations of the parties.
Suppose an accident occurred prior to 15.9.1995,
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and the claim was decided prior to the said date,
the law applicable is the unamended provisions of
the Workmen’s Compensation Act, 1923. But if the
claim could not be settled prior to 15.9.1995 going
by the Division Bench decision in Asokan’s case,
those claimants would get the benefits of the
Amendment Act. In other words, the benefit would
depend on when the case is decided, either prior to
15.9.1995 or subsequent. This was never the
intention of the Legislature. If the Legislature
wanted to give
ig the benefit to all pending
proceedings the same could have been provided in
the Amendment Act itself. There must be some
provision in the statute which either expressly or by
necessary implication would lead to an interference
that the rights and liabilities of the parties were
intended to be altered. We do not find anything in
the Amendment Act which seeks to alter the liability
of employer as it stood on the date of accident. The
amended provisions may be beneficial to the
victims or their legal representatives or the Act may
be a welfare legislation, but it does not
automatically lead to the inference that such
provisions are retrospective in nature. The
amended provisions of S. 4 and 4A were intended to
operate only prospectively, that too from the dates
fixed by the Central Government in accordance with
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S. 1 (2) of Act 30 of 1995.”
7. The judgment in the case of Oriental Insurance Company
Ltd….Versus…Asokan, cited supra, was therefore, overruled by the
Full Bench of Kerala High Court. In Kerala State Electricity
Board and another…Versus…Valsala K. and another,
reported in 1999 (8) Supreme Court Cases 254, a three-Judge
Bench of the Supreme Court considered the conflicting judgments
and after framing question, which I have framed earlier in
paragraph No.1, it answered the same in negative. It would be
useful to quote paragraph Nos.2, 3, 4, 5 and 6 from the said
judgment.
“2. Various High Courts in the
country, while dealing with the claim for
compensation under Workmen’s Compensation
Act have uniformly taken the view that therelevant date for determining the rights and
liabilities of the parties is the date of the
accident.
3. A four-Judge Bench of this
Court in Pratap Narain Singh Deo v. Srinivas
Sabata speaking through Shinghal, J. has held
that an employer becomes liable to pay
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compensation as soon as the personal injury is
caused to the workman by the accident which
arose out of and in the course of employment.
Thus, the relevant date for determination of the
rate of compensation is the date of the accident
and not the date of adjudication of the claim.
4. A two-Judge Bench of this
Court in New India Assurance Co. Ltd. v. V.K.
Neelakandan however, took the view that the
Workmen’s Compensation Act being a special
legislation for the benefit of the workmen, the
benefit as available on the date of adjudication
should be extended to the workmen and not the
compensation which was payable on the date of
the accident. The two-Judge Bench in
Neelakandan case however, did not take notice of
the judgment of the larger Bench in Pratap Narain
Singh Deo case as it presumably was not brought
to the notice of their Lordships. Be that as it may,
in view of the categorical law laid down by the
larger Bench in Pratap Singh Deo case the view
expressed by the two-Judge Bench in
Neelakandan case is not correct.
5. Our attention has also been
drawn to a judgment of the Full Bench of the
Kerala High Court in United India Insurance Co.
Ltd v. Alavi wherein the Full Bench precisely
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considered the same question and examined both
the above-noted judgments. It took the view that
the injured workman becomes entitled to get
compensation the moment he suffers personal
injuries of the types contemplated by the
provisions of the Workmen’s Compensation Act
and it is the amount of compensation payable on
the date of the accident and not the amount of
compensation payable on account of the
amendment made in 1995, which is relevant.
The decision of the Full Bench of the Kerala High
Court, to the extent it is in accord with the
judgment of the larger Bench of this Court in
Pratap Narain Singh Deo v. Srinivas Sabata lays
down the correct law and we approve it.
6. Having answered the question
posed in the earlier part of the judgment in the
negative, we shall take up this batch of special
leave petitions for consideration.”
8. Perusal of the aforesaid paragraphs in the said judgment
of the Supreme Court clearly show that they held that the case of
New India Assurance Co. Ltd…Versus…V.K. Neelakandan and
others was not correctly decided but the judgment in the case of
Pratap Narain Singh Deo…Versus…Srinivas Sabata and another,
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cited supra, being of the larger Bench of the Supreme Court i.e.
being of four Judges, the same was approved so also the Full
Bench judgment of Kerala High Court. It is, thus, clear that the
three-Judge Full Bench of the Supreme Court in the case of Kerala
State Electricity Board and another…Versus…Valsala K. and
another, cited supra, in clear terms clarified the legal position that
the relevant date for applying amendment would be the date of
accident and consequently, the amendment made by Act No.30 of
1995 w.e.f. 15.9.1995 cannot be made applicable to the claims
arising out the accident caused prior to 15.9.1995. Thus, following
the law laid down as above, I have no other alternative but to
dismiss the appeal.
9. It is unfortunate that both the learned Counsel for the
rival parties did not at all assist the Court properly in the matter
by pointing out the correct legal position. In the result, first
appeal is dismissed. No order as to costs.
JUDGE
ssw
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