Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 516 (GAU)

Oriental Insurance Co. Ltd. v. Lakhimai Das

2004-09-09

AMITAVA ROY, D.BISWAS

body2004
JUDGMENT Amitava Roy, J. 1. The award dated 3.7.2002 passed by the Commissioner, Workmen's Compensation, Zone III, Tezpur is under challenge in the present appeal. 2. The insurer of the Vehicle No. ASQ/9668, a Truck which met with an accident resulting in the death of the Respondent claimant's son, is before us. 3. We have heard Mr. S. Dutta, learned Advocate for the insurer-Appellant and Mr. J. Singh, learned Advocate for the Respondent claimant. None appears for the Respondent No. 2, the owner of the vehicle. 4. Bipul Das (deceased) the son of the Respondent claimant was engaged at the relevant time as a handyman of the aforementioned Vehicle under the Respondent No. 2, the owner thereof. In course of his employment on 28.4.2001 at about 4.45 A.M., the said Vehicle met with an accident at Teliagaon under Samaguri Police station as a result whereof the claimant's son died at the spot. A claim was lodged by the mother of deceased before the Commissioner Workmen's Compensation, Nagaon (which was subsequently transferred to the Court of the Commissioner Workmen's Compensation, Tezpur) contending that at the relevant time the deceased was 28 years old and had an income of Rs. 3,500/- per month including daily allowances. A claim for Rs. 3,92,000/- with interest was made. 5. The Respondent owner of the vehicle while admitting the employment of the deceased vis-a-vis the vehicle also admitted his income as claimed by the claimant. 6. The claim was resisted by the insurer-Appellant on all counts. It categorically denied that the deceased's income at the relevant time was Rs. 3,500/- per month as claimed. 7. The claimant examined only herself in support of the claim. Neither the owner nor the insurer adduced any evidence. 8. On the basis of the pleadings of the parties and the evidence on record, the learned Commissioner held that the Respondent-owner as the employer of the deceased was liable to pay compensation under the Workmen's Compensation Act, 1953 (hereinafter referred to as the Act). As the Vehicle admittedly at the relevant time was insured with the insurer Appellant, the learned Commissioner concluded that it was liable to pay the compensation on behalf of the insured owner. Accepting the monthly income of the deceased to be Rs. As the Vehicle admittedly at the relevant time was insured with the insurer Appellant, the learned Commissioner concluded that it was liable to pay the compensation on behalf of the insured owner. Accepting the monthly income of the deceased to be Rs. 3,500/- and his age at his death as 28 years, the learned Commissioner, applying the factor of 224.00 provided in schedule IV of the Act computed the amount of compensation to be Rs. 3,92,000/-. Internal at the rate of 12% per annum was also granted. 9. The only contention of Mr. Dutta is that, the learned Commissioner had gone wrong in computing the amount of compensation by accepting the monthly income of the deceased as Rs. 3,500/- in absence of any evidence whatsoever in support thereof. According to him, the insurer-Appellant having categorically denied that the monthly income of the deceased to be Rs. 3,500/- at the relevant time, his employer ought to have adduced evidence to substantiate the monthly income of the deceased and only on admission by him in the written statement did not absolve the Respondent claimant of her responsibility of proving the said fact. 10. Mr. Singh, on the other hand, has submitted that as the monthly income of the deceased as claimed by the claimant was admitted by me owner of the vehicle in his written statement, it was not incumbent on the part of the claimant to adduce further evidence on that count and the award is not liable to be interfered with appeal. Mr. Singh, therefore, has urged that the learned commissioner was perfectly justified in accepting the figure of Rs. 3,500/- as the monthly income and the amount of compensation having been computed by applying the formula prescribed by law, the impugned award is unassailable. 11. We have examined the pleadings of the parties and the evidence on record the state of pleadings is not in dispute we however, from the evidence of the claimant find that she had deposed that her son at the time of his death had an income of Rs. 3,600/- per month including daily allowances. It is thus abundantly clear from the testimony of the claimant that the amount of Rs. 3,600/- included daily allowances. The question therefore is whether in ascertaining the wages of the deceased, the daily allowances an be taken note of. 3,600/- per month including daily allowances. It is thus abundantly clear from the testimony of the claimant that the amount of Rs. 3,600/- included daily allowances. The question therefore is whether in ascertaining the wages of the deceased, the daily allowances an be taken note of. The definition of "Wages" as provided in Section 2(m) of the Act is quoted herein below: 2(m) "Wages", includes any privilege or benefit which is capable of being estimated in money, other than a traveling allowance of the value of any traveling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. 12. It is clear from herein above that a sum of amount paid to a workman to cover any special expenses entailed on him by the nature of his employment is not included in his "wages" for the purpose of the Act. From the nature of the employment of the deceased, we have no hesitation to hold that the daily allowances referred to by the claimant in her deposition would not form a part of the wages as defined under the Act. On a moderate estimate, we may take that a daily allowance of Rs. 20/- was paid to the deceased. Resultants an amount of Rs. 600/- can be safely deducted from the amount quoted by the claimant to be the income of the deceased per month. According to us, therefore, the wages for the purpose of computing the compensation for the death of the deceased has to be taken as Rs. 3000/- per month. We are, therefore, of the view that the learned Commissioners had erred in law and on facts in proceeding on the basis that the monthly wages of the deceased at the relevant time was Rs. 3,500/-. 13. We further find that the learned Commissioner, in computing the amount of compensation had applied the factor of 224.00 which under Schedule IV of the corresponds to the age of 20 years in case of the death of the workman concerned. It the age of the deceased is taken to be 28 years, the factor of 211.79 would be applicable. Applying the above figures and using the formula as prescribed Under Section 4(1)(a), the amount of compensation payable is approximately Rs. 3,20,000/-. It the age of the deceased is taken to be 28 years, the factor of 211.79 would be applicable. Applying the above figures and using the formula as prescribed Under Section 4(1)(a), the amount of compensation payable is approximately Rs. 3,20,000/-. The parties are ad idem on this computation. We do not wish to interfere with the rate of interest granted. The impugned award thus stands modified as above. 14. It is submitted at the Bar that in terms of the order dated 17.4.2003, the Respondent claimant have withdrawn 50% of the awarded amount deposited with learned Commissioners. With the reduction of the quantum of compensation, the insurer Appellant will be refunded the excess amount. We further direct, in view of Section 8(7) of the Act that the learned Commissioner, would deposit the balance amount payable to the Respondent claimant in a fixed Deposit with any Nationalised Scheduled Bank, that would fetch the highest prevailing interest/Liberty is granted to the Respondent claimant to appeal to the Commissioner, if need be, at any time, for withdrawal of such deposited amount and it will be in the discretion of the Commissioner to pass appropriate orders on such prayer, acting on the materials available. 15. With the above observations and directions the appeal stands allowed to the extent indicated herein above. No costs. Appeal allowed.