NEW INDIA ASSURANCE CO. LTD. Vs. BALACHANDRAN

JUDGEMENT

(1.) A Division Bench of this Court has made a reference of these appeals for consideration of a larger Bench visits orders dated 23.8.2013 in M.F.A. No. 124 of 2011 and dated 10.9.2013 in M.F.A. No. 66 of 2013. The Division Bench was considering a claim regarding compensation which has been determined under S. 4(1)(c)(ii) of the Workmen's Compensation Act, 1923. In M.F.A. No. 124 of 2011, wages of the workman was Rs. 5,400/- per month. The issue before the Division Bench was as to whether while computing the monthly wages, the limit as prescribed in Explanation to Sections 4(1)(a) and (b) applies in case when compensation is determined with regard to clause (c). An earlier Division Bench judgment reported in United India Insurance Co. Ltd. v. Abdul Razak, 2012 1 KerLT 818 was cited before the Division Bench wherein the Division Bench had taken a view that for determination of the amount of compensation under S. 4(1)(c), the Explanation II to S. 4(1)(a) and (b) shall not be applicable. In the present appeals, the Division Bench herein had expressed a doubt about the correctness of the judgment in United India Insurance and had made a reference for consideration by the Full Bench. The Division Bench expressed its views in paragraph 6 of the reference order that even though clause (c) is not expressly mentioned in Explanation II, since clause (c) contemplated compensation payable which, in turn, is to be determined with reference to compensation under Clause 4(1)(b), the Legislature has left out reference to Clause (c) in Explanation II and hence explanation II is applicable for determination of the amount of compensation under S. 4(1)(c). Paragraph 6 of the reference order is extracted below:

(2.) Learned counsel appearing for the appellant in both appeals have submitted that the view which has been expressed in the reference order is the correct view of law. It is submitted that S. 4(1)(b) provides for amount of compensation in case of permanent total disablement resulting from injury and clause (c) provides for permanent partial disablement from injury and under clause (c) some percentage of compensation is payable in the case of partial disablement as that of permanent total disablement as referred to in clause (b). Hence explanation has to be read into while making such computation. It is submitted that in the earlier Division Bench judgment in United India Insurance (supra,) it has been submitted that clause (c) does not refer to Explanation II and Explanation II shall not be applicable in determining the compensation under clause (c) of sub-section (1) of S. 4. It is further submitted that the explanation cannot enlarge or restrict the substantive provision given in S. 4. Hence the explanation cannot be read in a manner to restrict the right given in the substantive provision. It is further submitted that casus omissus cannot be supplied by the Court, which is the well established principle of statutory interpretation. It is further submitted that S. 4 has suffered various amendments from time to time and with effect from 18.1.2010 explanation II is consciously deleted and hence the intention of Legislature in carrying out the said amendment is also to be taken into consideration.

(3.) We have considered the submission of the learned counsel for the parties and perused the records. S. 4 in the Workmen's Compensation , 1923 which falls for consideration in the present case reads as follows: