- (1.) THIS misc. appeal under Section 30 of the Workmen' Compensation Act, 1923 (hereinafter 'the 1923 Act') has been filed against the judgment dated 26 -6 -1998 passed by the Workmen' Compensation Commissioner, Jaipur City, Jaipur (hereinafter 'the Commissioner'), whereby the Commissioner has found the respondent claimants (hereinafter 'the claimants') entitled to compensation for a sum of Rs.2,62,090/ - along with interest at the rate of 12% effective after one month of the date of accident till the date of payment. Heard learned counsel for the parties and perused the impugned judgment dated 26 -6 -1998.
(2.) THE only issue in this appeal is as to whether in respect of an accident dated 19 -8 -1995 the compensation should have been awarded as per the state of law existing as of that date or in terms of amendment to Section 4(1)(a) of the 1923 Act brought about on 15 - 9 -1995. In other words whether the amendment of Section 4(1)(a) of the 1923 Act could have been retrospectively applied in the pending claims with cause of action arising prior to 15 -9 -1995? Counsel for the appellant submitted that in terms of the judgment of the Three Judge Bench of the Hon'ble Supreme Court in case of Kerala State Electricity Board Vs. Valsala K. [AIR 1999 SC 3502] it has been held that the amendment to Section 4(1)(a) as also Section 4A of the Act of 1923 Act brought about on 15 -9 -1995 is prospective in nature and for accidents which occurred prior to the amendment of 15 -9 -1995, compensation was to be computed on the basis of existing state of law obtaining on the date of the accident. He submitted that in the event the Commissioner had so applied the law correctly to the case before it the claimants would have been entitled only to Rs.1,11,339/ - as compensation, whereas the claimants have been awarded compensation of Rs.1,97,060/ - plus interest 12% per annum aggregating to Rs.2,62,090/ - by misapplying the law and treating the amendment of 15 -9 -1995 as retrospective. Counsel submitted that in view of the judgment of Hon'ble Supreme Court in the case of Kerala State Electricity Board Vs. Valsala K. (supra) the impugned judgment is thus liable to be set aside and the appellant insurance company is entitled to recover the excess amount paid under the Commissioner's award/ judgment dated 26 -6 -1998 from the respondent claimants. Mr. Sandeep Mathur, learned counsel for the claimants has submitted that the learned Commissioner passed the impugned judgment on the basis of obtaining law at on the date of the impugned judgment in view of the judgment of the Hon'ble Supreme Court in the case of the New India Assurance company Ltd. Vs. V.K. Neelakandan, Civil Appeal No.16904 -16906 of 1996 decided on 6 - 11 -1996. He however has fairly conceded that the law subsequently was correctly stated by the Hon'ble Apex Court in the case of Kerala State Electricity Board Vs. Valsala K. (supra) holding that the amendment to Section 4(1)(a) and Section 4A of the 1923 Act brought about by an Act No.30 of 1995 with effect from 15 -9 -1995 was prospective in nature. He therefore conceded that the determination of compensation by the impugned judgment dated 26 -6 -1998 passed by the Commissioner applying the amendment of 15 -9 -1995 retrospectively would be liable to be set aside and compensation determined with reference to the unamended provision of Section
(3.) (1)(a) - -as obtaining prior to 15 -9 -1995. The claimants were thus wrongly held to have been entitled to compensation of Rs.1,97,060/ - with interest at the rate of 12% effective 30 days following the accident to the date of payment. 4. Counsel has however submitted that the claimants are poor and in the event the right to recover the excess amount disbursed to the claimants were to be allowed consequent to the setting aside of the impugned judgment dated 26 -6 -1998 passed by the Commissioner, the claimants would be unable to repay the excess amount. And in the course of the insurance company claiming restitution and recovery of the excess amount the claimants' life would be blighted by repeated visits to courts and expenses incurred thereupon as fare and counsel's fee.;