TMI Blog1998 (12) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... that is before the Workmen's Compensation Commissioner, who is respondent 1 in the memo of appeal. In other words Tribunal held that the present respondent 2 in the appeal was an employee of respondent 1, the owner of the vehicle. It had relied on the evidence given by the claimant including two documents filed and observed that no evidence has been led or produced by the owner of the vehicle to prove or show otherwise i.e. to the contrary. 3. The Commissioner found the claimant to be entitled to award of compensation. The Workmen's Compensation Commissioner has found that the income of the claimant comes to ₹ 2,300/-, it opined that for the purpose of Section 4 and calculation of compensation in view of Explanation II to Section 4 of Workmen's Compensation Act, the monthly wages of the claimant shall be deemed to be ₹ 2,000/- only, in view of substitution of the figure ₹ 2,000/- for figure ₹ 1,000/- in the 2nd explanation of Section 4 of the Workmen's Compensation Amendment Act, 1995, for short the amending Act 30 of 1995 . On that basis applying the multiplier, the Tribunal has assessed and awarded the amount of compensation to be ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature and they did not deal with substantive right. As such the Workmen's Compensation Commissioner did not commit any error of law in applying and assuming that the monthly wages in the case of 2nd respondent-claimant has to be deemed to be ₹ 2,000/-, even if the wages had ordinarily exceeded the figure of ₹ 2,000/-. 8. In the rejoinder, on the preliminary objection Sri Poonacha submitted that under Section 30, Insurance Company is entitled to raise all the pleas of law to show that compensation awarded is excessive and bad in law as the right of the appellant to challenge the award in appeal is not controlled by Section 149(2) of the Motor Vehicles Act and this it has to be taken note that Section 149(2) of the M.V. Act of 1988 is on same terms, as Section 96(2) of the Motor Vehicles Act of 1939, for short, the M.V. Act of 1939 . Under these two sections there is a statutory inhibition and prohibition against the insured to the effect that he can raise only those defences which are mentioned specifically or specified either in Section 96(2) and (6) of the Act of 1939 or those specified in Section 149(2) read with 149(7) of the M.V. Act of 1988 and other defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of this Court dealing with Sections 96(2), 110-C(2) after having read with Section 110-C(2-A) observed that, the word 'party aggrieved' used in Section 110-D(1) of the Act, means that the party should be legally aggrieved. The Insurance Company becomes legally aggrieved only when the findings are given against it only with reference to the grounds of defence mentioned in Section 96(2) of the M.V. Act of 1939, because they are the only grounds available to it for defence. It cannot be aggrieved on a finding of actionable negligence because the company has no right to contest in that behalf. 11. It may further be mentioned that with reference to motor accidents claims when once the defences have been specified whether the forum before which the claim has been made, is Motor Accidents Claim Tribunal or the Workmen's Compensation Commissioner the defences available to the Insurance Company cannot be increased or expanded at the Appellate Stage. The defences available will be only as provided under Section 96(2) and therefore grounds on which the award can be challenged in appeal are those defences which are available either under Section 96(2) of M.V. Act of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 4(1), clauses (a) and (b) with Explanations I and II reads as under: 4. Amount of compensation.-- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-- (a) Where death results from the injury an amount equal to forty per cent of the monthly wages of the deceased workman multiplied by the relevant factor; or an amount of twenty thousand rupees, whichever is more; (b) Where permanent total disablement results from the injury an amount equal to fifty per cent of the monthly wages of the injured workman multiplied by the relevant factor; Or an amount of twenty four thousand rupees, whichever is more; Explanation I.-- For the purposes of clauses (a) and (b), relevant factor , in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not be required: (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. 18. A reading of this proviso per se reveals that the liability of the Insurance Company with reference to employees dying in accident or suffering bodily injuries in the circumstances indicated in clause (a), (b) or (c) is fastened to the limited extent namely, to the extent of liability arising under the Workmen's Compensation Act, 1923. 19. How the compensation amount is to be assessed, in case of death or permanent injury has been provided in Section 4, so also the yardstic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retrospective in the sense that the change in procedural law during the pendency of the cases instituted, earlier to the change, will govern or control the trial of cases then pending as well as those arising or filed later by the changed procedural law unless and until it is otherwise provided by the Act itself. No person has got a vested right with reference to the course of procedure or as to mode or procedure of trial. It may be no doubt said that if the cases have closed and have been decided under old procedure prior to the amendment the decision will not be affected thereby unless otherwise provided. But no doubt where the case is pending a change has been introduced in procedural law with reference to determination or decision that changed procedure has to be followed in respect of the pending cases. 23. In the case of Blyth v Blyth, with reference to Section 1 of the Matrimonial Cases Act, 1963 which enabled the rebuttal by evidence of presumption of condonation arising from marital intercourse has been held to be procedural and applicable to pending divorce proceeding irrespective of that date of events to which the evidence might be directed. Lord Denning in Blyth v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s provision being one relating to procedure the amendment introduced on 15th September, 1995 would have applied and governed will apply to the case in the matter of determination of the amount of compensation in case pending or for decision before Workmen's Compensation Commissioner on the date of coming into effect or operation of amending Act 30 of 1995 irrespective of the date of occurrence or accident causing death or injury. It may not apply to cases closed, i.e. determined finally, before the date of commencement or enforcement of amending Act of 1995, i.e. prior to the coming into force of the amending Act or prior to substitution cannot be reopened on the ground that the amending Act is retrospective, or substitution of figure is retrospective. Presumption or deeming clause being matters of law of evidence to be raised or followed in the course of trial or determination of the compensation. 28. Further the amendment has been introduced in social and beneficial enactment with object to benefit the poor low paid workman that if a workman proves or shows or is established to be getting wages more than one thousand but less than two thousands his evidence will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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