Alok Sharma, J. - (1.) THIS order will dispose of both the civil misc. appeal and the cross -objection thereto.
(2.) COUNSEL for the appellant -United India Insurance Co. Ltd. (hereinafter 'the Insurance Company') submitted that the award of Rs. 2,36,472/ - to the respondent -claimant (hereinafter 'the claimant') for the injuries suffered by him in an accident of 09.11.2001 when he was working on the thresher attached to the tractor No. RJ -23 -R -3138 insured with the Insurance Company is unsustainable as the claimant's employment with the insured, Richhpal, the owner of the tractor No. RJ -23 -R -3138, was not proved. It was further submitted that despite the lack of any documentary evidence, the income of the claimant was wrongfully taken at the maximum permissible of Rs. 4,000/ - p.m. at the relevant time under Explanation II of Section 4(1)(b) of the Workmen's Compensation Act, 1923 (hereinafter 'the Act of 1923'). It was then submitted that an accident occasioned by a thresher attached to the insured tractor could not be construed an accident from the use of the insured motor vehicle i.e. the tractor as the liability arising out of operating agricultural implements or machinery with the potential to cause injury to a workman is a liability covered under a separate policy in respect of which there was no contract of insurance between the Insurance Company and the owner of the tractor No. RJ -23 -R -3138. It was finally submitted that the learned Commissioner for arriving at the compensation of Rs. 2,36,472/ - has not adverted to any formula mandated under the Act of 1923, the award amount is thus arbitrary and therefore liable to be redetermined/reduced as per provisions of the Act of 1923. Mr. A.S. Shekhawat, appearing for the claimant, submitted that far from awarding excess compensation to the claimant, the Commissioner has awarded adequate compensation. He submitted that in terms of Section 4(1)(c) of the Act of 1923, the injured workman where he suffers partial permanent disablement is entitled to compensation computed with reference to loss of income first determined at 60% of his monthly salary multiplied by the relevant factor relatable to the workman's age and thereafter pro -rata adjusted with the percentage of loss of earning capacity proved. It was submitted that in terms of Schedule I part II entry 4, loss of a hand or of the thumb and four fingers of one hand or amputation entails partial permanent disablement and 60% loss of earning capacity. Before the Commissioner, even though the income of the claimant was proved to be Rs. 4,500/ - p.m. by the employer, it was limited to Rs. 4,000/ - p.m. as per the limiting provisions of the then extant Section 4(1)(b) of Explanation II of the Act of 1923. Counsel submitted that the age of the injured at the relevant time was 35 years (as per his injury report) consequent to which the claimant was entitled to a factor 197.06. Counsel then submitted that in the circumstances obtaining, the compensation payable to the claimant was Rs. 2,400/ - (being 60% of the maximum income permissible of Rs. 4,000/ - p.m. under the Explanation II to Section 4(1)(b) of the Act of 1923) multiplied by the factor of Rs. 197.06 (age 35) which works out to Rs. 4,72,944/ -. Thereafter in terms of entry 4 of part II of Schedule I, the claimant was entitled to 60% of the amount of Rs. 4,72,944/ - as loss of earning capacity which works out to Rs. 2,83,766/ -. It was submitted that as against the amount thus due under the Act of 1923 to the claimant, the claimant was wrongly awarded a sum of Rs. 2,36,472/ - only. Counsel further submitted that the learned Commissioner also failed to award interest as mandated by Section 4A(3)(a) of the Act of 1923 where in the event of failure to pay compensation due within 30 days from the date it fell due, interest @ 12% p.a. is to be paid along with the compensation determined. Counsel submitted that under the award dated 20.11.2002, the learned Commissioner had directed that the claimant would be entitled interest @ 9% p.a. only in the event the award amount were not paid within 60 days of the date of the award. The Insurance Company having deposited the said amount within 60 days, the claimant was altogether denied interest on the compensation amount - -not that such a payment would have absolved the employer and his insurer from the liability to pay interest, compensation having not been admittedly paid within 30 days of the accident.
(3.) HEARD . Perused the award dated 20.11.2002, passed by the learned Commissioner.;