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2004 DIGILAW 1129 (AP)

S. Abdul Razak v. S. A. Nazeer

2004-10-01

L.NARASIMHA REDDY

body2004
( 1 ) THE Claimant in W. C. No. 28 of 1991 filed this appeal under Section 30 (a) of the workmen s Compensation Act 1923, (hereinafter referred to as "the Act"), not being satisfied with the order passed by the commissioner for Workmen s compensation, Kurnool (for short "the commissioner" ). ( 2 ) THE appellant is a driver on the lorry bearing No. AAD 975, belonging to the first respondent. It is his case that on 20-11-1988, he was proceeding from Hyderabad to kurnool, and on the way, he stopped the lorry to undertake certain minor repairs. He stated that when he was undertaking repairs, another lorry bearing No. AAQ 5343, dashed his stationary lorry, and thereby, he sustained fractures on the upper part of the left leg, and thereby, he became unfit to work as a driver. It was his case that he was being paid a salary at Rs. 1500/- per month, and prayed for compensation of Rs. 96,000/ -. His age was stated to be 34 years at the time of the accident. ( 3 ) THE first respondent remained ex parte. ( 4 ) THE second respondent-the insurance company, resisted the claim. It alleged that the appellant did not hold valid driving licence, and that the vehicle also was not covered by valid records. ( 5 ) THE appellant was examined as P. W. 1, and he filed documents Exs. A-1 to A-5 being f. I. R. , Physical Disability Certificate, insurance Policy, and other documents, relating to his treatment. No evidence was adduced by the second respondent. The commissioner took the age of the appellant as 35 years, his wages at Rs. 640/- per month, and awarded a sum of Rs. 28,684/- as compensation. ( 6 ) LEARNED counsel for the appellant submits that the Commissioner was not justified, in adopting the minimum wages prescribed by the Government for the post of a driver, though the appellant was being paid a salary of Rs. 1500/- per month. He contends that, with the first respondent remaining exparte, the plea put forward by the appellant as to the wages has to be taken as proved. 1500/- per month. He contends that, with the first respondent remaining exparte, the plea put forward by the appellant as to the wages has to be taken as proved. ( 7 ) LEARNED counsel for the second respondent, on the other hand, submits that except making an oral assertion, the appellant did not place any record, before the commissioner to prove that he was being paid a salary of Rs. 1500/- per month, and in that view of the matter no interference is called for. ( 8 ) THE fact that the appellant was working as driver with the first respondent, the accident has taken place on 21-11-1988, and that he sustained a fracture to the left leg, were not disputed by the respondents. Though the appellant pleaded that he was 34 years of age, at the time of the accident, the commissioner has taken his age as 35 years. There is no controversy about this factor also. The only dispute is about the wages. The Commissioner applied the relevant formula, which takes in it the factors of age, wage and percentage of loss of earnings. ( 9 ) IT is true that except stating that his wages were Rs. 1500/- per month, the appellant did not lead any evidence, as regards that plea. But, it should not be forgotten that the best person to contradict it, was his employer-the first respondent, and that he was chosen to remain ex parte. If the second respondent disputed the version put forward by the appellant, it ought to have taken steps to secure the presence of the first respondent, as a witness, to elicite from him, the required information. That was not done. The Commissioner has taken the minimum wages prescribed by the Government under g. O. Ms. No. 301, dated 20-8-1985, as the basis for fixing the wages of the appellant at rs. 640/ -. ( 10 ) THE wages for various categories of employment are notified by the Government, in exercise of the powers under Minimum wages Act. The purport of such notification is that, a person employed in a particular category of employment, cannot be paid wages, less than those notified. That does not mean that the figures so notified, represent the actual wages of a particular post. The purport of such notification is that, a person employed in a particular category of employment, cannot be paid wages, less than those notified. That does not mean that the figures so notified, represent the actual wages of a particular post. Further the employment of the appellant was not such; where the employer was required to maintain records, or that salary certificates are issued from time to time. Under these circumstances, this Court is of the view that the Commissioner ought not to have been guided by minimum wages alone. Taking into account the factors, that the first respondent remained ex parte, and the appellant did not examine any other witness, this Court is of the view that, ends of justice would be met if the wages of the appellant, at the relevant point of time, are taken at rs. 900/- per month. ( 11 ) ANOTHER grievance of the appellant is that the Commissioner did not award any interest. The Motor Vehicles Act, and workmen s Compensation Act are enacted, for the welfare and benefit of the victims of the accidents. Without exception interest is granted on amounts, awarded under the said Acts to compensate for the delay in disposal of the proceedings. 9% interest is granted, almost as a matter of course. ( 12 ) HENCE the appeal is allowed, directing the wages of the appellant, shall be taken at rs. 900/- per month, all other factors being the same. The differential amount shall carry interest at 9% per annum, from the date of submission of the claim petition.