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2012 DIGILAW 393 (GAU)

National Insurance Co. Ltd. v. Md. Nur Hussain

2012-03-26

A.K.GOSWAMI

body2012
JUDGMENT A.K. Goswami, J. 1. Heard Mr. D. Mazumdar, learned counsel for the appellant. Also heard Mr. M. Khataniar, learned counsel for the respondent No. 1. This Court by order dated 16.2.2012, while formulating the substantial question of law, on which the appeal is to be heard, noted that there was no necessity of notice to the respondent No. 2, there being no dispute with regard to the insurance coverage. In view of the aforesaid, Mr. D. Mazumdar, learned counsel has prayed for striking off the name of respondent No. 2 from the array of parties. Accordingly, the name of respondent No. 2 is struck off. 2. The following substantial question of law was formulated by this Court on 16.2.2012 : Whether the learned Commissioner is justified to take the monthly wages of the workman at Rs. 5,100/-, which is inclusive of the daily wages paid to the workman, in view of the claim of the workman in the application filed that his monthly wage was Rs. 1,500/- and he was also paid Rs. 120/- per day as daily allowance? 3. The award dated 13.11.2003 passed by the learned Commissioner, Workmen Compensation, Kamrup, Guwahati in W.C. Case No. 26/2003 is the subject matter of challenge in this appeal. 4. The respondent No. 1 had, filed a claim petition for compensation under the Workmen's Compensation Act, 1923 (for short, the Act) on account of bodily injury sustained by him in a vehicular accident, arising out of and in course of his employment. The respondent No. 1/claimant was an employee of Sri Debaraj Bharali whose name has been struck off today and he was employed as a driver of a vehicle bearing No. As 15/3679. The vehicle met with an accident on 5.9.2002. In the claim petition before the learned Tribunal, the petitioner had stated that he had sustained following injuries : (i) Fracture in the Rt. ankle joint (ii) Injury in the right leg below the knee joint (iii) Injury in the scalp 5. In paragraph 6 of the claim petition the claimant stated as follows : 6. That the monthly wage of the petitioner was Rs. 1500/- and he obtained Rs. 120/- as daily allowance. In total he received Rs. 5,100/(Rupees five thousand one hundred) from the O.P. No. 1. 6. In the claim petition, the claimant prayed for compensation of Rs. 4,20,000/- with 12% simple interest w.e.f. 5.9.2002. 7. That the monthly wage of the petitioner was Rs. 1500/- and he obtained Rs. 120/- as daily allowance. In total he received Rs. 5,100/(Rupees five thousand one hundred) from the O.P. No. 1. 6. In the claim petition, the claimant prayed for compensation of Rs. 4,20,000/- with 12% simple interest w.e.f. 5.9.2002. 7. A written statement was filed by the owner of the vehicle, namely, Sri Debaraj Bharali, stating that the vehicle was duly insured with the National Insurance Company Ltd. and therefore, the Insurance Company was liable to pay compensation in the event of the learned Tribunal passing any order towards payment of compensation. In paragraph 3 of the written statement, the owner had stated that the claimant received Rs. 5,100/- only per month in the form of salary and allowance from him. 8. A written statement was also filed by the appellant before the learned Tribunal taking a number of pleas and insisting that the claimant was put to strictest proof with regard to the averments made in the claim petition. It was also stated that as the Insurance Company was not included in the definition of employer, compensation cannot be directed to be paid by the Insurance Company. 9. The claimant had examined himself as PW 1 and the Doctor, who had examined and treated him, was examined as PW 2. In course of his deposition, the claimant had stated that he used to earn Rs. 5,100/- as salary per month including allowance and that he was about 25 years of age at the time of accident. He stated that he was not allowed to drive after the accident as he was not able to drive the same and therefore, the owner of the vehicle had discharged him from service. In cross-examination, the PW 1 had stated that he was given allowance even if he did not drive the vehicle on a particular day. PW 2 had deposed that the claimant had suffered loss of earning capacity which was assessed as 30%. He had also deposed that injury No. 1 was grievous and disability had been assessed at 35 %. It had also been stated that injury No. 1 is in the nature of permanent partial injury. 10. The learned Tribunal, on consideration of materials on record, deemed the monthly salary to be Rs. He had also deposed that injury No. 1 was grievous and disability had been assessed at 35 %. It had also been stated that injury No. 1 is in the nature of permanent partial injury. 10. The learned Tribunal, on consideration of materials on record, deemed the monthly salary to be Rs. 4000/- for the purpose of computation of compensation as provided in "Explanation II u/s 4(1) of the Act". The learned Tribunal took the age of the claimant as 28 years and accordingly, determined the amount of compensation to be paid to the claimant by the appellant at Rs. 1,77,903/-. The amount of compensation was directed to be deposited within a period of 30 days from the date of receipt of the order for disbursement to the claimant and in the event of failure of the Insurance Company to deposit the amount of compensation within the aforesaid 30 days, direction was also issued to the effect that the Insurance Company will be liable to pay interest @ 9% w.e.f. from the date of receipt of the order. 11. Mr. D. Mazumdar, learned counsel for the appellant submits that the claimant in his claim petition had stated in categorical terms that his monthly wage was Rs. 1,500/- and he was also getting Rs. 120/- as daily allowance, thus earning a sum of Rs. 5,100/- per month. He submits that Division Bench of his Court in the case of Oriental Insurance Company Ltd. v. Lakhimai Das and another, reported in 2006 (3) GLT 870, had laid down that daily allowance referred to by the claimant in that case in the deposition, would not form a part of the wages and the principles laid down in the said case is squarely applicable in the facts of this case inasmuch as while the instant case relates to a driver, the case under consideration of the Division Bench was that of a handyman. It is, in this premise, the learned counsel for the appellant submits that from the sum of Rs. 5,100/, a sum of Rs. 3600/- has to be deducted, the same being daily allowance and the claimant will be entitled to compensation only on the sum of Rs. 1,500/- which he earned as monthly wage. It is, in this premise, the learned counsel for the appellant submits that from the sum of Rs. 5,100/, a sum of Rs. 3600/- has to be deducted, the same being daily allowance and the claimant will be entitled to compensation only on the sum of Rs. 1,500/- which he earned as monthly wage. Learned counsel submits that in the aforesaid view of the matter, the compensation awarded by the learned Tribunal is excessive and not sustainable in law and if the compensation is calculated on the amount of Rs. 1500/-, at the most, the claimant would be entitled to about Rs. 67,000/-. 12. Mr. M. Khataniar, learned counsel for the respondent/claimant, on the other hand, submits that the order of the learned Tribunal, in the facts and circumstances of the case, does not warrant any interference. He submits that the claimant had deposed that he was earning a sum of Rs. 5,100/- as salary and daily allowance and the learned Tribunal has assessed his wage to be Rs. 4,000/- per month. 13. I have considered the rival contentions of the learned counsel of the parties and have also perused the materials on record. 14. The claimant in his deposition stated thus : I used to get Rs. 5,100/- as salary per month including allowance. 15. From the claim petition, it is not very clear what the claimant wanted to say because in the figure Rs. 1500/- the figure 0' in the ten's place was struck off making it Rs. 150/-. There is, however, no ambiguity that he had received Rs. 5,100/- per month. In the case before the Division Bench, the projected case of the claimant was an income of Rs. 3600/- per month with daily allowance and this Court had taken Rs. 20/- to be the daily allowance that may have been paid to the workman, in absence of any categorical assertion with regard to quantum of daily allowance. The submission of Mr. Mazumdar that in the claim petition there is no ambiguity with regard to the amount of daily allowance earned by he workman, which was stated to be Rs. 120/-, and therefore, there is no question of drawing any presumption in the instant case, cannot be accepted because there was no evidence of any positive amount of daily allowance earned by the claimant. 120/-, and therefore, there is no question of drawing any presumption in the instant case, cannot be accepted because there was no evidence of any positive amount of daily allowance earned by the claimant. The accident in Lakhimai (supra) took place on 28.4.2001 and in the instant case, the accident occurred on 5.9.2002. The daily allowance of Rs. 120/- is unrealistic if the salary is taken at Rs. 1500/-. Even if Rs. 30/- is taken as a daily allowance, the same would be Rs. 900/-. The learned Tribunal has also noted that the owner has also supported the case of the claimant. True, the owner was not examined by the claimant. However, it is on the record that in the written statement, the owner had stated that the claimant was earning Rs. 5,100/- per month as salary and allowance. Though the amount of salary was claimed to be Rs. 5,100/- in view of Explanation II Under Section 4(1)b, his salary was deemed to be Rs. 4,000/- only. The learned Tribunal proceeded to work out the compensation as such. 16. Considering the materials on record and the evidence of the parties, I am of the considered opinion that the determination of the income of the claimant at Rs. 4,000/- per month, does not require any interference. 17. In view of the aforesaid discussion, this Court is of the considered opinion that the impugned award does not require interference from this Court. Accordingly, the appeal stands dismissed. It has been pointed out that the appellant had deposited the entire amount of compensation before the Commissioner, Workmen's Compensation, Kamrup, Guwahati. This Court, while admitting the appeal on 16.3.2004 also provided that if the respondent No. 1 seeks payment of 50% of the total amount which was deposited with the Commissioner, Workmen's Compensation, Kamrup, Guwahati, the same shall be released, subject to giving necessary undertaking in accordance with law by the respondent No. 1. The learned counsel for the respondent, is, however, unable to apprise this Court whether the amount was released in favour of the respondent No. 1 or whether the respondent No. 1 had prayed for releasing of such amount.