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Himachal Pradesh High Court · body

2008 DIGILAW 421 (HP)

Oriental Insurance Co. Ltd. v. Guddo

2008-08-21

SANJAY KAROL

body2008
JUDGMENT : SANJAY KAROL, J. 1. The present appeal arises out of the impugned Award dated 23.4.2005 passed by the Commissioner, Under The Workmen Compensation Act, in Chamba Sub-Division, Chamba, in File No. 11/Comp/SDO(C)/04 titled as Guddo and others vs. Oriental Insurance Company Ltd., and another, whereby a sum of Rs. 3,81,222/- has been adjudicated as compensation due and payable to the claimants of the deceased employee Shri Tassi. 2. Late Shri Tassi was employed with Shri Piar Deen, a Government Contractor and in the course of his employment and discharge of his duties, he met with an accident on 12.9.2004 and died due to the same. His legal heirs, wife, four minor daughters and aged father filed an application for determination of compensation under the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’). The Commissioner adjudicated the matter and after appreciating the material on record awarded compensation of Rs. 3,81,222/-. Since the employer had taken an insurance policy, therefore, the liability to pay the same was fastened upon the Oriental Insurance Company Ltd. original respondent No. 1 in the claim petition. 3. Aggrieved by the same, the Insurance Company has filed the present appeal, which was admitted on 6.7.2005. Importantly, no substantial questions of law were framed at the time of admission, but however, during the course of the hearing today, Dr. Lalit Sharma, learned counsel appearing for the appellant has emphasized that substantial question of law No. 3 framed along with the grounds of appeal would arise for consideration in the present appeal. The substantial question of law No. 3 is reproduced as under: “3. Whether the award under challenge is vitiated on the ground of misappreciation/misreading of Annexure P-6 insurance policy denoting the salary of the deceased for Rs. 51/- per day as compared to the oral statement of the claimant/owner for Rs. 120/- per day and whether the documentary evidence can be ignored with the help of un-reliable oral evidence.” 4. Learned counsel for the parties consented to the hearing of the present appeal on the said substantial question of law and without seeking any adjournment addressed the Court on the same. 5. It is an undisputed fact that the employer had taken an insurance policy and the deceased employee was covered by the same. The age of the deceased on the date of accident was 28 years. 5. It is an undisputed fact that the employer had taken an insurance policy and the deceased employee was covered by the same. The age of the deceased on the date of accident was 28 years. It is also the admitted fact that the ground in the appeal is limited to the determination and fixation of the wages which the employee had been getting at the time of his death. 6. The compensation under the Act is determined in accordance with the provisions of Section 4 and Schedule IV of the Act. For the purpose of determining the “monthly wages” of the deceased workman, the definition clause 2(m) of the Act is relevant and reproduced as under: “2(m) “wages” includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling 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.” 7. It is evident that the definition is inclusive and not exhaustive. It includes all privileges or benefits capable of being estimated in money. 8. The claimant as PW-1 has deposed that her late husband was getting Rs. 120/- per day from his employer. She has specifically denied the suggestion put by the Insurance Company that the deceased employee was getting a salary of Rs. 70/- per day. 9. Employer Shri Piar Deen (RW-1) has corroborated her version and has specifically deposed that the deceased was receiving Rs. 120/- per day as wages from him. He has however, denied the suggestion put by the Insurance Company that the said amount was not being paid by him as wages to the deceased. Importantly, no suggestion whatsoever has been put to him with regard to the exact figure and amount of wages. It has also not been suggested as to whether he was paying only Rs. 70/- or Rs. 51/- per day or was giving any other benefits so as to be termed as wages. 10. Shri Gian Chand (RW-2), Branch Manager of the Insurance Company has simply stepped into the witness box and proved the risk cover note Ext.R1. It has also not been suggested as to whether he was paying only Rs. 70/- or Rs. 51/- per day or was giving any other benefits so as to be termed as wages. 10. Shri Gian Chand (RW-2), Branch Manager of the Insurance Company has simply stepped into the witness box and proved the risk cover note Ext.R1. His deposition is conspicuously silent with regard to the exact amount of wages, which was being paid by the employer to the employee. However, he has deposed that the value of the risk was Rs. 1,46,000/- in relation to eight workers only. Perusal of Ext.R1, which is heavily relied upon by the learned counsel for the appellant, would reveal that the said document is self contradictory and certainly not conclusive of the exact wages being paid by the employer to the employee. The cover records two figures: (i) Rs. 1,46,000/- “approximate wages” for eight persons. If this amount is divided, daily wage would come to approximately Rs. 51.70 paise or say Rs. 51/- per day. (ii) it also records wages to be Rs. 72.95 paise. 11. It is true that this document was not considered by the Commissioner while adjudicating the claim petition. Therefore, the substantial questions of law raised by the appellant arise for consideration before this Court. 12. In the absence of any conclusive, cogent and reliable evidence, it cannot be held that the wages of the deceased employee was Rs. 51/- per day as is now being argued on behalf of the Insurance Company. 13. There is no mis-appreciation or misreading of the insurance policy. There is cogent and reliable material on record to prove the salary to be Rs. 120/- per day. 14. The substantial question of law is answered accordingly. 15. I am in agreement with Dr. Lalit Sharma, learned counsel for the appellant that the authority below has erred in awarding interest from the date of death of the deceased employee which statutorily, in accordance with Section 4 of the Act and Section 4(A) Sub Clause (3), has to be awarded within one month from the date of the accident. Ordered accordingly. 16. I may also point out that the Insurance Company initially, in the written statement had disputed the liability by categorically stating that the deceased was not insured at all. Ordered accordingly. 16. I may also point out that the Insurance Company initially, in the written statement had disputed the liability by categorically stating that the deceased was not insured at all. Much can be said on the conduct of the Insurance Company, but suffice to say that the appellant, a public sector undertaking, ought to have been more forthright in its duty while adjudicating the claim of a poor workman. 17. For the aforesaid reasons, the present appeal is partly allowed and the same stands disposed of. The impugned award is modified to the aforesaid extent. C.M.P. No. 640/2008 18. Not pressed, so that comprehensive application can be filed.