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2014 DIGILAW 500 (RAJ)

New India Assurance Company Ltd. v. Santosh

2014-02-18

ALOK SHARMA

body2014
JUDGMENT 1. This misc. appeal under Section 30 of the Workmen' Compensation Act, 1923 (hereinafter 'the 1923 Act') has been filed against the award dated 3-5-2001 passed by the Workmen' Compensation Commissioner, Sikar (hereinafter 'the Commissioner'), whereby the Commissioner has found the respondents claimants (hereinafter 'the claimant') entitled to compensation for a sum of Rs. 2,71,600/-along with interest at the rate of 12% in the event amount of compensation not being deposited within sixty days of the award. 2. Heard learned counsel for the parties and perused the impugned award dated 3-5-2001. 3. Learned counsel for the appellant insurance company has submitted that the compensation payable to the claimants for the death of Subhash @ Bhagat Singh has been computed taking the wages of the deceased at Rs. 2500/-per month in excess of the maximum wages permissible for the purpose under the Act of 1923 at the relevant time. The maximum wages to be reckoned for awarding compensation under the Explanation II of Section 4 (1) (b) of the 1923 Act was only Rs. two thousand between 15-9-1995 to 7-12-2000. The workman in issue Subhash @ Bhagat Singh while working as Driver on jeep No.RJ-10/C-1793 insured at the relevant time with the appellant insurance company died in an accident on 3-11-1999. 4. He submitted that consequently the compensation payable to claimants of the deceased Subhash @ Bhagat Singh should have been computed taking Rs. 1,000/-(fifty percent of the wages drawn) multiplied by relevant factor i.e. of 215.28 as the age of the deceased Subhash @ Bhagat Singh at the time of the accident/death was 26 years as per his driving licence. This would aggregate to Rs. 2,15,280/-. 5. Counsel has also pointed out that although the Commissioner has awarded a compensation of Rs. 2,71,600/-, yet in the claim petition was only for an amount of Rs. 2,21,370/-. The substantial question of law which thus arises in this appeal is as to whether compensation was necessarily to be determined taking the monthly wages of the workman at Rs. 5. Counsel has also pointed out that although the Commissioner has awarded a compensation of Rs. 2,71,600/-, yet in the claim petition was only for an amount of Rs. 2,21,370/-. The substantial question of law which thus arises in this appeal is as to whether compensation was necessarily to be determined taking the monthly wages of the workman at Rs. 2000/- with reference to the then extant statutory limit or compensation in contravention of statute based on a higher monthly wage evident from the material on record can be determined Counsel has submitted that the compensation determined by the Commissioner as payable to the claimants for the death of Subhash @ Bhagat Singh while working as Driver on Jeep in question on 3-11-1999 is contrary to the Explanation II of Section 4 (1) (b) of the 1923 Act and is therefore liable to be set aside to the extent it exceeds the compensation payable in accordance with law. He submitted that the maximum wages under the 1923 Act which could be reckoned for determining compensation were Rs. 2000/-per month. This was circumvented by the Commissioner by computing the compensation taking the wages of the deceased @ Rs. 2500/-per month. Hence the award dated 3-5-2001 is liable to be suitably modified. 6. Mr. Ved Prakash, learned counsel for the claimants submitted that the 1923 Act is a social welfare legislation and this court should take a liberal view of the compensation awarded there under even if it was marginally in excess of the compensation payable in law. With reference to the limit on wages for determining compensation under Explanation II of Section 4 (1) (b) of the 1923 Act obtaining at the time of the accident on 3-11-1999 he has submitted that much water has flown under the bridge since the award dated 3-5-2001, inasmuch as presently the upper limit of the wages under the 1923 Act has been increased upto Rs. 8000/-. Therefore the compensation of Rs. 2,71,600/-not be interfered with, submitted counsel. 7. Heard. Considered. 8. The provisions of 1923 Act prescribe the method for computing compensation which a workman or his dependants are entitled to for injury/ death arising out of and in the course of employment. The state of law as obtaining on the date of the accident i.e. 3-11-1999 was to be reckoned for deciding the claimants' petition for compensation. Heard. Considered. 8. The provisions of 1923 Act prescribe the method for computing compensation which a workman or his dependants are entitled to for injury/ death arising out of and in the course of employment. The state of law as obtaining on the date of the accident i.e. 3-11-1999 was to be reckoned for deciding the claimants' petition for compensation. Section 4 (1) (b) Explanation II of the 1923 Act at the relevant time provided that even where the monthly wages of a workman exceeded Rs. 2000/-, compensation would be determined with wages of the deceased/ injured deemed to be Rs. 2000/-only. That is the plain mandate of law and the Commissioner, in my considered opinion had no jurisdiction to act contrary thereto. Albeit from the evidence on record monthly wages of the deceased Subhash @ Bhagat Singh were found Rs. 2500/-, yet for the purpose of the computation the compensation, his wage could not have been taken to be in excess of Rs. 2000/- per month. Thereafter the relevant factor for computing the compensation was to be applied. Taking the age of the deceased to be 26 years at the time of accident on 3-11-1999 on the basis of his driving licence the factor was 215.28. Thus the compensation payable to the claimants would work out to Rs. 2,15,280/-. This position would not change even if the award was passed on 3-5-2001 subsequent to an amendment enhancing the maximum wage under Explanation II to Section 4(1)(b) of the 1923 Act to Rs. 4000/- per month for the reason that the amendment effective 8-12-2000 was operative only prospectively. 9. The High Court of Himachal Pradesh in case of Satya Devi Sharma v. Megh Pal, 2002 ACJ 2104 : 2003-I-LLJ-265 has held that rights of a party are fructified on the date of accident on the basis of extant law. Amendments operate only prospectively unless specifically made retrospective. It is nobody's case that the amendment to Explanation II of Section 4(1)(b) of the 1923 Act brought about on 8-12-2000 was made retrospective. Reliance was also placed on a judgment of this court in case of National Insurance Company Ltd. v. Smt. Premji Kaur, S.B. Civil Misc. Appeal No. 406 of 2000, decided on 15-12-2011 , wherein this court has held that compensation and rate of interest payable under the 1923 Act would be as applicable as on the date of accident. Reliance was also placed on a judgment of this court in case of National Insurance Company Ltd. v. Smt. Premji Kaur, S.B. Civil Misc. Appeal No. 406 of 2000, decided on 15-12-2011 , wherein this court has held that compensation and rate of interest payable under the 1923 Act would be as applicable as on the date of accident. The Hon'ble Supreme Court in the case of Kerala State Electricity Board v. Valsala K., 2000 ACJ 5 (SC) : AIR 1999 SC 3502 : (1999) 8 SCC 254 : LNIND 1999 SC 832 : 1999-II-LLJ-1112 held that compensation is payable as of the date of the accident when the right to compensation crystallizes. The earlier judgment in the case of Pratap Narain Singh Deo v. Srinivas Sabata, 1976 ACJ 141 (SC) : AIR 1976 SC 222 : (1976) 1 SCC 289 : LNIND 1975 SC 485 : 1976-I-LLJ-235 , was approved as laying down the correct law. 10. In the obtaining facts and state of law, I would partly allow this miscellaneous appeal and modify the impugned award dated 3-5-2001 holding that the compensation to which the claimants were/are entitled to for the death of Subhash @ Bhagat Singh in an accident of 3-11-1999 while driving the jeep No.RJ-10/C-1793 insured with the appellant insurance company, would be reckoned treating the monthly wages of the deceased Subhash to be Rs. 2000/- in terms of the extant Explanation-II of Section 4(1)(b) of the Act of 1923. Applying the relevant factor of 215.28 taking the age of the deceased as 26 years as per his driving licence, the amount of compensation would be Rs. 2,15,280/-. It is also directed that the claimants would be entitled to interest @ 12% per annum on the amount of compensation so determined from the date of the accident i.e. 3-11-1999 till the date of payment. Other aspects and directions in the award dated 3-5-2001 passed by the Commissioner are sustained. 11. The counsel for the appellant insurance company states that the appellant insurance company has deposited the whole of the compensation under the impugned award dated 3-5-2001 with the jurisdictional Commissioner. The Commissioner is directed to recompute the compensation plus interest payable to the claimants as per directions of this court and pay the same forthwith to the claimants. 11. The counsel for the appellant insurance company states that the appellant insurance company has deposited the whole of the compensation under the impugned award dated 3-5-2001 with the jurisdictional Commissioner. The Commissioner is directed to recompute the compensation plus interest payable to the claimants as per directions of this court and pay the same forthwith to the claimants. If amounts determined are short of amount deposited by the appellant insurance company, the same shall be deposited by the appellant insurance company within six weeks. Due amount if any shall carry interest @ 15% per annum. Any amount so found due shall be disbursed forthwith. Conversely if the amount deposited is in excess of the amounts determined by the Commissioner, the same be refunded to the appellant insurance company within six weeks. 12. The Appeal stands partly allowed accordingly.Appeal partly allowed. *******