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2014 DIGILAW 368 (TRI)

Bedana Khatun v. Branch Manager

2014-11-12

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, CJ. 1. This appeal for enhancement of compensation is directed against the award dated 22-06-2004 passed by the learned Commissioner, Workmen's Compensation, West Tripura, Agartala in case No. T.S. (WC) 10 of 2001 whereby the Commissioner, Workmen's Compensation has only awarded a sum of Rs. 1,73,744/- plus interest in favour of the claimant. 2. The undisputed facts are that the deceased Jainal Miah who was engaged as driver on a Maruti Van bearing No. TR-02-0583 was deputed with the vehicle to go to Silchar on 19-07-2000. When he was returning along with the vehicle, he was murdered by some unknown miscreants. The claimants being the parents filed the claim petition but during the pendency of the claim petition the father expired. 3. The learned Commissioner held the income of the deceased to be Rs. 2,100/- per month and applying the principles of the Motor Vehicles Act deducted 50% for the personal expenses of the deceased, applied factor of 163.09 by taking into consideration the age of the mother and then assessed the compensation. 4. To say the least, the system followed by the learned Commissioner was totally wrong. Again and again, I am coming across cases where Commissioners in the State are not even caring to read the bare provisions of the Workmen's Compensation Act or the Employee's Compensation Act. They are applying the principles of the Motor Vehicles Act while granting compensation under the Workmen's Compensation Act. 5. In the present case, a hybrid system of following both the Acts has been applied. The Commissioners must realize that when a petition is filed under the Workmen's Compensation Act, compensation has to be awarded strictly in accordance with the provisions of Section 4 of the Act. The Court can only award structured payment as provided under the Act. It cannot award a penny more or a penny less than what is provided for under the Act. 6. As far as the present case is concerned, the claimant-mother had stepped into the witness box and stated that her son was being paid a salary of Rs. 2,500/- per month and apart from that, the employer was paying him Rs. 50/- per day for his daily food. This witness was not cross-examined. 6. As far as the present case is concerned, the claimant-mother had stepped into the witness box and stated that her son was being paid a salary of Rs. 2,500/- per month and apart from that, the employer was paying him Rs. 50/- per day for his daily food. This witness was not cross-examined. Even if such a witness is not cross-examined, a Commissioner or a Motor Accident Claims Tribunal can decide whether to accept the statement of the witness as correct or not. 7. In the present case, the Commissioner relied upon what was stated in the written statement by the owner in discarding the statement of the claimant. This is also totally illegal. A written statement is a pleading and pleadings cannot take the place of proof. Evidence has to be filed in the form of affidavits or on the basis of sworn testimony of the witnesses and a mere statement in the claim petition or in the written statement cannot be read as a piece of evidence. Be that as it may, the accident occurred on 19-07-2000 and as per the provisions of the Workmen's Compensation Act as they existed on that day the maximum wages which could be taken into consideration were only Rs. 2,000/- per month for the purpose of calculating compensation. 8. The Apex Court in a large number of cases has held that though the Workmen's Compensation Act is a social welfare legislation, the rights of the parties are crystallized by the law as it stood on the date when the cause of action arose, i.e., the date when the accident occurred. Therefore, compensation has to be assessed as on the date of the accident. 9. In fact this question virtually stands decided. There are numerous judgments of the Apex Court on this point. The compensation has to be calculated as per the provisions of law as they exist on the date of accident. In the present case the cause of action has arisen on the date when the accident had occurred. 10. A four-Judge Bench of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289 ) has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident which arose out of and in the course of employment. 10. A four-Judge Bench of the Apex Court in Pratap Narain Singh Deo v. Srinivas Sabata (1976) 1 SCC 289 ) has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workman by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation is the date of the accident and not the date of adjudication of the claim. This judgment was followed in Kerala State Electricity Board and another v. Valsala K. and another (1999) 8 SCC 254 ). The same view has been taken in Oriental Insurance Co. Ltd. v. Khajuni Devi and others ( (2002) 10 SCC 567 ). 11. In the present case, even if the income of the deceased is taken to be Rs. 2,000/- per month and 50% of that, i.e. Rs. 1,000/- and the same has to be multiplied by the relevant factor. Where the learned Commissioner has erred is in calculating the relevant factor by taking into consideration the age of the mother. Under the provisions of the Workmen's Compensation Act, it is only the age of the workman who is the victim which is material and it makes no difference whether the claimant is older or not. That principle applies to the Motor Vehicles Act, and not to the Workmen's Compensation Act which grants structured compensation. The relevant factor in the case of a 27 year old person is 213.57 and, therefore, the compensation works out to Rs. 2,13,570/-. 12. Therefore, the appeal is allowed. The award of the learned Commissioner is modified and the compensation is enhanced from Rs. 1,73,744/- to Rs. 2,13,570/-, i.e., by Rs. 39,826/-. On this amount, the claimant shall also be entitled to interest @ 12% per annum from the date of accident till payment/deposit of the amount. The Insurance Company is directed to deposit the enhanced amount of compensation along with interest in the Registry of this Court within four months from today after deducting/adjusting the amount, if any, already paid/deposited by it along with proof of such earlier deposit. 13. The appeal is disposed of in the aforesaid terms. 14. Send down the lower court records forthwith.