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Madhya Pradesh High Court · body

2011 DIGILAW 525 (MP)

BASANTABAI v. SHAMIM BEE

2011-05-02

P.K.JAISWAL

body2011
JUDGMENT : P.K. Jaiswal, J. This appeal was admitted for final hearing on 19.1.2011 on the following substantial questions of law: (i) Whether the Commissioner, Workmen's Compensation, has committed an error of law in not holding the respondent No. 2, insurance company, liable for payment of interest on the amount of compensation from the date of accident till its realization as per section 4A(3) of the Workmen's Compensation Act, 1923? (ii) Whether 'bhatta' has to be considered as wages for the purpose of computation of compensation and learned Commissioner, Workmen's Compensation, has committed an error in not awarding 'bhatta'? This appeal is filed by the claimants for enhancement of compensation u/s 30 of the Workmen's Compensation Act, 1923. The learned Commissioner after appreciating the evidence on record came to the conclusion that at the time of accident, i.e., on 6.10.2005 the income of the deceased was Rs. 3,000 per month and awarded a sum of Rs. 3,39,570 with interest at the rate of 12 per cent per annum from the date of filing of the application, i.e., 31.1.2006. 2. In respect of income of the deceased it is submitted that deceased was working as cleaner on the truck bearing registration No. MP 13-E 0553 and during the course of employment he met with an accident in which he sustained grievous injuries. During the treatment on 10.10.2005 he died at Government Hospital. Mandsaur. At the time of death he was 18 years of age and his salary was Rs. 4,000 per month. Apart from his salary he was getting the dainik bhatta of Rs. 50 per day. Exhs. P1 to P7 are the documents in respect of wages of the deceased. Learned counsel for the appellants submits that Basantabai in her statement has deposed that income of the deceased was Rs. 3,000 per month, but she in her evidence has not stated that the deceased was not getting Rs. 50 per day as bhatta and submitted that the learned Commissioner wrongly disbelieved the said part of the evidence and assessed his income at Rs. 3,000 per month. 3. On the other hand, Mr. M. Upadhyay, learned counsel for respondent insurance company, supported the order passed by Commissioner and submitted that bhatta is not a part of wages as defined in clause (m) of sub-section (1) of section 2 of the Workmen's Compensation Act, 1923. 3,000 per month. 3. On the other hand, Mr. M. Upadhyay, learned counsel for respondent insurance company, supported the order passed by Commissioner and submitted that bhatta is not a part of wages as defined in clause (m) of sub-section (1) of section 2 of the Workmen's Compensation Act, 1923. This question was considered by the Division Bench of Madhya Pradesh High Court at Gwalior Bench in the case of Smt. Shakuntala and Others Vs. Kanna Dangi and Others, (2007) ACJ 2486. Para 11 which is relevant reads as herein-below: To determine the question whether the bhatta (daily allowance) is a part of wages for computing the compensation under Motor Vehicles Act and ultimately to determine the question of wages of a driver, we have to consider the evidence and if it has come in the evidence that he was also getting Rs. 50 per day as daily allowance, whether the same can form part of wages. 50 per day as daily allowance, whether the same can form part of wages. The term 'wages' has been defined in many Central Acts, such as, under the Payment of Wages Act, 1936; the Minimum Wages Act, 1948, the Industrial Disputes Act, 1947; and under the Workmen's Compensation Act, 1923, which are as under: Payment of Wages Act, 1936: Section 2(vi)--'wages' means all remuneration (whether by way of salary allowance, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and include-- (a) xxx (b) xxx (c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name): (d) xxx (e) xxx Minimum Wages Act, 1948: Section 2(h)--'wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance, but does not include-- (i) the value of (a) xxx (b) any other amenity of any service excluded by general or special order of the appropriate Government; (ii) xxx (iii) any travelling allowance or the value of any travelling concession; (iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (v) xxx Industrial Disputes Act, 1947: (rr) 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment and includes: (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) xxx (iii) xxx Workmen's Compensation Act, 1923: (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; From a bare reading of the definitions of 'wages' under the Minimum Wages Act, 1948, Industrial Disputes Act, 1947 and the Workmen's Compensation Act, 1923, it is amply clear that the 'wages' means all remuneration whether by way of salary, allowance or otherwise expressed in terms of money or capable of being so expressed, payable to a person employed in respect of his employment or of work done in such employment and includes any additional remuneration, any travelling allowance or the value of any travelling concession or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, shall form part of the wages. These definitions are quite exhaustive and it prima facie appears that any amount paid to the driver either as additional remuneration payable in terms of employment or any travelling allowance or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, would be included in the definition of 'wages'. Therefore, any bhatta or daily allowance that is paid to the driver under any special contract as additional remuneration or as daily allowance may be considered as part of the wages but if any sum is paid for defraying any expenses towards food as and when the driver will go outside the city then it may not form part of the wages. For that the claimant has to prove that the amount of daily bhatta is paid as additional remuneration or as travelling allowance and it may depend from case to case and on the nature of the vehicle as well as the nature of duties and if it is found proved that the bhatta is paid as additional remuneration under the terms of contract for the purposes mentioned in the definition of 'wages' then as per the evidence on record the court may include the aforesaid bhatta as part of wages. 4. In view of the above, this court is of the view that bhatta is part of wages for the purpose of computation of compensation. After including the amount of bhatta total salary of the deceased comes to Rs.4,500 per month. As per Workmen's Compensation Act, 1923 the maximum wage is up to Rs. 4,000 and, therefore, this court assessed the income of the deceased at Rs.4,000 per month. After deducting the amount of 30 per cent and applying the relevant factor of 226.38 per cent, the total amount of compensation comes to Rs.4,52,760. After deducting a sum of Rs. 3,39,570 the enhanced amount of compensation comes to Rs.1,13,190 (Rs.4,52,760 - Rs.3,39,570 = Rs.1,13,190). 5. For the above-mentioned reasons, the substantial question of law No. 2 framed by this court is answered in favour of the appellants by holding that bhatta is part of the wages for the purpose of computation of compensation. 6. In respect of payment of interest the issue has been decided by the Apex Court in the case of Ved Prakash Garg Vs. 6. In respect of payment of interest the issue has been decided by the Apex Court in the case of Ved Prakash Garg Vs. Premi Devi and others, (1997) 8 SCC 1 , therefore, insurance company is liable to pay the interest to the claimants. 7. In view of the aforesaid, this court is of the view that the insurance company is liable to pay the interest on the amount of compensation from the date of application at the rate of 12 per cent per annum as awarded by the Commissioner for Workmen's Compensation till its realization. In the result the appeal is allowed. The amount of compensation is enhanced by Rs. 1,13,190. The appellants will be entitled to interest at the rate of 12 per cent per annum from the date of filing of the application till its realization. No costs. Appeal allowed.