Labour Law; Rosamma Babu Vs. Mariyamma Thomas [Kerala High Court, 17-08-2016]

Employees Compensation Act, 1923S. 4 (1) Exp. II – In the absence of anything to show that the amendment has retrospective operation, the law as in force on the date of the accident will govern the rights of parties with regard to the entitlement for compensation.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.N. Ravindran & A. Muhamed Mustaque, JJ.

M.F.A.No.54 of 2016

Dated this the 17th August, 2016

AGAINST THE ORDER/JUDGMENT IN ECC 29/2014 of THE COURT OF THE COMMISSIONER FOR EMPLOYEES COMPENSATION (INDUSTRIAL TRIBUNAL), ALAPPUZHA DATED 31-03-2015

APPELLANT(S)/PETITIONERS

ROSAMMA BABU AND OTHERS

BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G SRI.DIPU JAMES

RESPONDENT(S)/OPPOSITE PARTY

1. MARIYAMMA THOMAS W/O.K.V.THOMAS, AGED 55 YEARS, THENGIL PUTHEN VEEDU, VENMONEY, CHENGANNUR, ALAPPUZHA-689 121.

2. THE BRANCH MANAGER NEW INDIA ASSURANCE CO. LTD., CHENGANNUR, ALAPPUZHA-689 121.

R2 BY ADV. SRI.A.A.ZIYAD RAHMAN

JUDGMENT

P.N. Ravindran, J.

This appeal arises from the order passed by the Court of the Commissioner for Employees Compensation (Industrial Tribunal), Alappuzha on 31.3.2015 in E.C.C.No.29 of 2014, an application for compensation filed by the appellants herein under section 22 of the Workmen’s Compensation Act, 1923. The application was originally filed before the Workmen’s Compensation Commissioner, Alappuzha and numbered as W.C.C.No.83 of 2011.

The Workmen’s Compensation Act, 1923

underwent substantial amendments with effect from 18.1.2010 by the

Workmen’s Compensation (Amendment) Act, 2009

(Act 45 of 2009) and was renamed as the

Employees Compensation Act, 1923

By the impugned order, after estimating the monthly income of the victim in the accident as Rs.8,000/-, the Employees Compensation Commissioner awarded compensation for the death of P.C. Babu, husband of the first applicant and father of the other applicants, limiting the monthly income to Rs.4,000/- in terms of the stipulation contained in Explanation II to the proviso to sub-section (1) of section 4 of the Employees Compensation Act, 1923. The Employees Compensation Commissioner accordingly awarded the sum of Rs.2,95,360/- as compensation and directed the second opposite party, viz. the insurer of the employer to deposit the said amount together with interest at the rate of 12% per annum from the date on which the period of one month expired after the date of the accident. The applicants have filed this appeal contending that in view of Act 45 of 2009 by which, Explanation II to the proviso to sub-section (1) of section 4 of the Employees Compensation Act was deleted from the statute, the Commissioner for Employees Compensation erred in limiting the monthly income to Rs.4,000/- for the purpose of computing the compensation payable under section 4 of the Act.

2. Explanation II to the proviso to sub-section (1) of section 4 of the Act as it stood on the date of the accident, viz. 1.4.2009 reads as follows:

“Explanation II.– Where the monthly wages of a workman exceed four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only.”

The aforesaid explanation was omitted from the statute by the Workmen’s Compensation (Amendment) Act, 2009 (Act 45 of 2009) with effect from 18.1.2010. It is relying on the aforesaid amendment to the Workmen’s Compensation Act that the appellants contend that the tribunal should have calculated the compensation taking the monthly income as Rs.8,000/- and not as Rs.4,000/-.

3. The issue raised is in our opinion no longer res integra and is covered against the appellants by the decisions of the Apex Court in

Pratap Narain Singh Deo v. Srinivas Sabata and another, AIR 1976 SC 222

and

KSEB v. Valsala, AIR 1999 SC 3502

and that of a Full Bench of this court in

United India Insurance Company Ltd. v. Alavi, 1998 (1) KLT 951

The principle emerging from the aforesaid decisions is that in the absence of anything to show that the amendment has retrospective operation, the law as in force on the date of the accident will govern the rights of parties with regard to the entitlement for compensation. In the instant case, the accident took place on 1.4.2009. The entitlement of the appellants to claim compensation arose on that date. Explanation II, which was omitted with effect from 18.1.2010 was in force on the date of the accident. There is nothing in Act 45 of 2009 to indicate that the deletion of Explanation II has retrospective operation. As the appellants cannot claim compensation in excess of the compensation computed in terms of the law in force as on the date of the accident, they cannot, relying on Act 45 of 2009 contend that in view of the omission of Explanation II from the statute, the compensation should have been calculated taking Rs.8,000/- as the monthly income. The claim for enhanced compensation is in our opinion not tenable and it fails.

We however, notice that the Employees Compensation Commissioner has not awarded to the appellants the sum of Rs.2,500/- which is available to be awarded towards funeral expenses. Therefore, even while declining the claim for enhanced compensation, we deem it appropriate to allow the appeal in part and modify the order passed by the Employees Compensation Commissioner by awarding a further sum of Rs.2,500/- towards funeral expenses. The order passed by the Employees Compensation Commissioner shall stand modified accordingly. The second respondent insurer shall deposit the said amount within a period of thirty days from today, failing which it will be open to the appellants to recover the same with 30% of the said sum of Rs.2,500/- as penalty. The parties shall suffer their respective costs in this court.