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2012 DIGILAW 1143 (GAU)

Oriental Insurance Co. Ltd. v. Usha Devi Bhuyan

2012-09-28

S.TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. This is an appeal by Oriental Insurance Company Ltd. under section 30(1) of Workmen's Compensation Act, 1923 against the judgment and award dated 17.10.2003 passed by the Commissioner, Workmen's Compensation, Nagaon in W.C. Case No. 198 of 2001. No substantial question of law was formulated at the time of admission of the appeal by the order dated 1.8.2005. However, from the memorandum of appeal it appears that the appeal is set up the following questions of law: i. Whether the wages of the workmen would include the daily allowances and ii. Whether the insurance company has any liability to pay the interest at the rate recorded in the award? The claim has been made for death of the claimant's husband who was the driver engaged by the respondent No. 2. The said driver namely, Puma Ch. Bhuyan died in an accident of the vehicle which he was driving bearing registration No. AS-02-A/2725. 2. Mr. S.K. Goswami, learned Counsel appearing for the petitioner submitted that the finding as regards the monthly wage of the deceased-workmen cannot be sustained as the monthly wage has been assessed by including the daily allowance. The Commissioner, Workmen's Compensation has observed that the wife of the deceased-workmen has categorically stated that her husband was employed as a driver in the vehicle under registration No. AS-02/A-2725 a Tata Sumo, owned by the respondent No. 2 at a monthly salary of Rs.2,000/- in addition to the daily allowance of @ Rs.50/- per day. She further stated that her husband was sent to Jorhat by his employer to drop some persons and her husband became unbraced from men and later on his dead body was found near the bank of Bhogdoi river. 3. Mr. S.K. Goswami's contention is that the inclusion of the daily allowances is completely unacceptable in view of the decision of this Court in Oriental Insurance Co. Ltd. v. lakhimai Das and another, 2006 (3) GLT 870 where this Court has held as under 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. Ltd. v. lakhimai Das and another, 2006 (3) GLT 870 where this Court has held as under 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 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/-. 4. This Court has submission of Mr. Goswami, learned Counsel and has also critically examined the decision of lakhimai Das (supra). In Lakhimai Das (supra), this High Court did not lay down any principle but has interpreted the provisions of law in the attendant circumstances of that particular case and held that a sum of amount paid to a workman to cover any special expenses entailed on him by the nature of his would not include in his "wages" for the purpose of determining the compensation. The said interpretation does not restrict in any manner the definition of the "wages" as provided in section 2(m) of the Workmen's Compensation Act, 1923 which stipulates as under: 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 5. In that case the Tribunal found that the said daily allowance was a sum paid to the workman to cover the special expenses but it did not project that the daily allowance of all natures would be excluded from the wages. The wages includes any privilege or benefit which is capable of being estimated in money. In this regard a decision of the Apex Court in Mohd. Aineeruddin and another v. United India Insurance Co. Ltd. and another, (2011) 1 SCC 303 is required to be referred to. The Apex Court in Mohd. Aineeruddin (supra), held that: 7. We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs.50/- was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs.2500/- he was getting Rs.50/- as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs.4000/-. 6. In the case in hand also mere is no evidence that the daily allowance as was being given to the workman was not given on everyday of the month or he was not working on everyday of the month. Therefore, in conjoint reading of section 2(m) as excerpted with Mohd. Aineeruddin (supra), it would be crystal clear that 'wages' would include the daily allowance unless it is demonstrated that the said allowance is a part of a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. 7. The appellant in the appeal did not make any endeavour to prove that the daily allowances as paid to the workmen was a sum paid to the workmen to cover any special expenses entailed on him by the nature of his employment. The daily allowances therefore would include within the benefit as defined in section 2(m) of the Workmen's Compensation Act, 1923 which is capable of being estimated in money. It is held that the daily wages of the nature as the workman was being paid would include in the wages for the purpose of calculating the compensation for death of the workman. 8. It is held that the daily wages of the nature as the workman was being paid would include in the wages for the purpose of calculating the compensation for death of the workman. 8. What has been submitted as regards the payment of the interest on the awarded sum, cannot be accepted in view of Oriental Insurance Co. Ltd. v. Mohd. Nasir and another, (2009) 6 SCC 280 : 2009 (121) FLR 1103 (SC) where it has been held that: 50. Reliance has been placed on National Insurance Company Ltd. v. Musabir Ahmed, (2007) 2 SCC 349 : 2007 (112) FLR 1033 (SC) it was held: 9. Interest is payable under section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under section 4-A was dealt with by this Court in Maghar Singh v. Jasivant Singh. (1998) 9 SCC 134 By amending Act 30 of 1995, section 4-A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because section 4-A(1) prescribes that compensation under section 4 shall be paid as soon as it fails due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming the due does not arise. The position becomes clearer on a reading of sub-section (2) of section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is 'falls due'. Significantly Legislature has not used the expression 'from the date of accident'. The position becomes clearer on a reading of sub-section (2) of section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is 'falls due'. Significantly Legislature has not used the expression 'from the date of accident'. Unless there is an adjudication, the question of an amount falling due does not arise. As therein this aspect of the matter has not been considered, we are of the opinion that interest will also be payable at the rate of 7-1/2% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner. 9. After analysis, the crucial expression 'falls due' has been held to be from the date of the adjudication of the claim by the Commissioner, Workmen's Compensation and as such no interest can be paid by the employer till the day of adjudication as the employer was also not in the know what would be the compensation. Thus the insurer cannot escape their liability. The rate of interest requires to be modified. 10. The claimant would be entitled to get interest @ 7-1/2% per annum from the day of filing of the claim petition i.e. 8.8.2001 till the day of adjudication i.e. 17.10.2003 and thereafter interest @ 12% per annum be paid to her on the awarded sum till the payment is made. 11. For the reasons as discussed above, this Court did not find any substance in the appeal and as such the appeal shall stand dismissed with the modifications as indicated. The appellant is directed to make payment of the entire awarded sum with interest as modified before the Commissioner, Workmen's Compensation within a period of 30 (thirty) days from today on deducting the sum, if any, already paid. There shall not be any order as to costs. Send down the LCRs forthwith.