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2016 DIGILAW 2410 (HP)

United India Insurance Company Ltd. v. Khem Lata

2016-11-15

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. CMP (M) No. 789 of 2015. Heard. In view of the averments made in the application which are duly supported by an affidavit and in the interest of justice, the delay in filing the appeal is condoned. Application stands disposed of. FAO No. 563 of 2016. The instant appeal arises from an order rendered by the Commissioner for Employees Compensation, Chachiot at Gohar, District Mandi, H.P., (for short the “Commissioner”), on 17.01.2015 in E.C. Act No. 4 of 2011, whereby, compensation quantified in a sum of Rs.9,97,000/- along with simple interest @12% p.a. from the date of death of the deceased till its realization alongwith funeral expenses quantified at Rs.40,000/- stood assessed qua the claimants, who are the successors-in-interest of one Murari Lal, who uncontrovertedly suffered fatal injuries during the course of his performing employment as a driver under respondent No.5. 2. The appellant herein standing aggrieved by the rendition of the learned Commissioner hence concert to assail it by preferring an appeal therefrom before this Court. 3. Uncontrovertedly, the predecessor-in-interest of the claimants/respondents No.1 to 4 herein suffered his demise in a motor vehicle accident involving vehicle bearing No. HP-32B-7777, whereon he stood employed as a driver by respondent No.5 herein. The learned counsel for the appellant herein submits qua his not controverting the factum of the demise of the deceased occurring during the course of his performing employment in the ill-fated vehicle as its driver under respondent No.5. Even, the conclusion recorded by the learned Commissioner on the issue apposite to the aforesaid factum does not disclose qua his conclusion qua the occurrence of demise of the deceased arising during the course of his performing duties as a driver at the relevant time in the ill-fated vehicle bearing No. HP-32B-7777, suffering from any perversity of it standing anchored upon irrelevant or discardable evidence or its omitting to mete deference to the germane besides relevant evidence. 4. 4. The counsel for the appellant herein submits at the bar qua his not contesting the findings recorded in the impugned order by the learned Commissioner qua the claimants/respondents No.1 to 4 herein holding the apposite capacity to on demise of their predecessor-in-interest stake a claim for compensation against respondent No.5, also concomitantly, against the appellant herein, given the evident existence of a valid contract of insurance covering the apposite liability of the insurer to indemnity the insured qua compensation assessed under the Act arising from occurrence of demise of his lawfully engaged driver in the ill-fated vehicle during the course of his performing employment under the insured. 5. The counsel for the appellant makes a vociferous submission qua the determination recorded by the learned Commissioner qua the deceased drawing from his employment as a driver under respondent No.5 an amount of Rs.10,000/- per month standing anvilled upon evidence which is beyond pleadings, significantly when in the claim petition the claimants record a pointed averment qua the deceased drawing from his avocation as a driver under respondent No.5 a sum of Rs.7000/- per month, whereupon he espouses qua any evidence which stood adduced before the learned Commissioner qua his drawing from his relevant employment, a salary/ amount of Rs.10,000/- per month being obviously beyond pleadings, hence, discardable rendering hence the reliance thereupon to be inapt. However, the aforesaid submission is unacceptable especially when apart from the claimants recording an averment in the apposite claim petition qua their predecessor-in-interest drawing an amount of Rs.7000/- per month as salary from his employer, theirs also making a communication therein qua his drawing a sum of Rs.120/- per day as daily allowance from his employer. Since, the totaling of a sum of Rs.7000/- drawn as salary per month by the deceased from his employment as a driver under respondent No.5 alongwith an amount of Rs.120/- per day yields a figure of Rs.10,000/- per mensem, consequently, the testification of the claimants qua their predecessor-in-interest drawing an amount of Rs.10000/- per month as wages/salary from his relevant employment under respondent No.5 is obviously not beyond pleadings. Moreover, a perusal of the order impugned hereat discloses qua the learned Commissioner concluding qua the deceased drawing a sum of Rs.10,000/- per month from his avocation as a driver under respondent No.5 being the apt amount whereto the relevant statutory principles were purportedly enjoined to be applied for computing the compensation amount assessable qua the claimants. For lack of repudiation thereto by respondent No.5 comprised in his adducing cogent evidence therebefore constituted in his adducing into evidence the salary register maintained by him personifying his defraying to the predecessor-in-interest of respondents No.1 to 4 an amount lesser than Rs.10,000/- per month as salary/wages for the work performed by him as a driver in the relevant vehicle. In sequel, the omission of respondent No.5 to adduce the best evidence in portrayal of the deceased drawing an amount lesser than Rs.10,000/- from him as salary/wages from his employment as a driver under him, enhances an inference qua the testification of the claimants qua the facet aforesaid being both credible besides reliable whereupon it was apt for the learned Commissioner to anvil his apposite findings. 6. 6. However, the learned counsel appearing for the appellant has with vigour contended of yet the learned Commissioner proceeding to move stray from the provisions of Section 4 of the Workmen Compensation Act (hereinafter referred to as the “Act”), relevant provisions whereof stand extracted hereinafter, digression whereof by him stands espoused by the learned counsel for the appellant to emanate from his while determining inconsonance with the initial condition embodied in clause (a) to subsection (1) of Section 4 of the Act, the amount per month drawn as salary/wages by the deceased workman from his employment as a driver under respondent No.5 whereto on his inaptly applying the statutory principles, he assessed compensation amount payable to the claimants, his though also standing enjoined to mete deference to the condition alternative to the primary condition of sub section 1 (a) of Section 4 of the Act, wherewithin a mandate is held qua his being bound irrespective of the actual amount of the wages/salary drawn by the deceased workman to restrict the relevant compensation amount at Rs.80,000/- in lump sum, whereas, his slighting the impact of the condition alternative to the primary condition to sub section 1 (a) of Section 4 of the Act upon the relevant facet, has sequeled his hence grossly mis-assessing the compensation amount qua the claimants. However, the aforesaid submission has no force given the learned counsel appearing for the appellant though aptly submits qua the two conditions enumerated in clause (a) of subsection 1 of Section 4 of the Act standing enjoined to be conjunctively read also he makes an apt submission of the condition alternative to the initial relevant condition wherewithin an echoing is embodied qua the learned Commissioner also standing enjoined to restrict the compensation amount assessable qua the dependents of the deceased workman at Rs.80,000/- yet his further submission qua the learned Commissioner standing hence enjoined to restrict the relevant compensation amount at a sum of Rs.80,000/- is for the reasons ascribed hereinafter grossly inapt. (I) A reading in its entirety of the condition alternative to the relevant statutory initial condition makes a vivid disclosure of it postulating qua its warranting reverence only when the initial condition remains unsatiated. (I) A reading in its entirety of the condition alternative to the relevant statutory initial condition makes a vivid disclosure of it postulating qua its warranting reverence only when the initial condition remains unsatiated. While making a dilation upon the aforesaid factum qua the relevant initial statutory condition holding an expostulation of the Commissioner standing enjoined to deduct 50% of the actual wages drawn by the deceased from his relevant employment whereon he is enjoined to apply the relevant statutory principles for computing the compensation amount, for attraction whereof upsurgings of firm evidence qua the actual wages per mensem drawn by the deceased from his relevant employment under respondent No.5 is enjoined to spur. Also with the initial statutory condition encapsulated in the hereinafter extracted relevant statutory provisions standing satiated there would hence be no occasion for attraction hereat of the condition alternative to it. Since, the conclusion drawn by the learned Commissioner in determining the compensation amount qua the claimants stands anvilled upon the deceased evidently drawing a sum of Rs.10,000/- per month as salary/wages from his employment under respondent No.5, necessarily with the learned Commissioner recording an apt conclusion qua the aforesaid facet, it hence begot satiation of the initial statutory condition embodied in the relevant provisions whereupon obviously the learned Commissioner did not err to mete thereto the relevant statutory deduction of 50%. Consequently, when the initial condition embodied in clause (a) to sub section (1) of Section 4 of the Act stands satiated, the condition alternative to it holding therewithin a mandate of the Commissioner standing enjoined for attracting hereat its application, to stand seized of firm evidence qua paucity of relevant evidence qua the actual amount of wages per mensem drawn by the deceased workman from his relevant employment under his employer, whereupon, he holds an empowerment to determine only a sum of Rs.80,000/- in lump sum as compensation to the dependents of the deceased workman. However, when as aforestated the initial statutory condition stand satiated, the learned Commissioner was not enjoined to place any dependence upon the statutory condition alternative to it. However, when as aforestated the initial statutory condition stand satiated, the learned Commissioner was not enjoined to place any dependence upon the statutory condition alternative to it. (ii) Also assumingly, if the condition alternative to the initial condition is also construed to be holding any attraction hereat yet with the relevant alternative statutory condition expostulating a sum of Rs.80000/- in lump sum being statutorily available for standing assessed as compensation by the learned Commissioner vis-a-vis the dependents of the deceased workman also assumingly its mandating qua with the Commissioner taking into account both the conditions embodied in the relevant statutory provisions wherefrom his apposite reckonings of the relevant compensation amount stand aroused unraveling qua the relevant compensation amount arrived at by his applying the initial condition being higher vis-a-vis his applying the condition alternative to it, yet his standing enjoined by the statutory phrase “which ever is more” occurring in the relevant provisions to mete deference to the figure/amount of compensation which is higher whereupon obviously when the working of the initial statutory condition sequels computation of compensation vis-a-vis the claimants of the deceased workman at a figure higher than the one which would stand arrived at on the condition alternative to it also standing applied, the attraction besides workability of the condition alternative to the initial statutory condition stands negated, Imperatively, hence, with the attraction hereat of the primary statutory condition fetching a compensation amount vis-a-vis the dependents of the deceased workman in a sum higher than yielded by application hereat of the condition alternative to it, contrarily, renders hence the reckoning of the initial statutory relevant statutory condition by the learned Commissioner while determining compensation amount vis-a-vis the claimants of the deceased workman to be apt. As a corollary the initial condition when reckoned results in assessment of compensation amount higher than the one which would occur on application of the condition alternative to it embodied in the relevant statutory provisions besides when a literal reading of the condition alternative to the initial condition enshrines qua when on application of the initial statutory condition, compensation amount higher than Rs.80,000/- is assessable qua the claimants of the deceased workman renders it to be discardable whereupon hence the apposite quantification of compensation by the learned Commissioner renders it to fall within the apt relevant statutory ambit of the attractable relevant statutory condition embodied in clause (a) to subsection (1) of Section 4 of the Act. 4. Amount of Compensation.- (1) Subject to the provisions of this Act, the amount of compensation shall be follows, namely:- (a) Where death result from the injury- an amount equal to (fifty per cent) of the monthly wages of the deceased workman multiplied by th relevant factor; or an amount of (eighty thousand rupees), whichever is more; (b)............................... 7. The learned counsel appearing for the appellant submits that the quantification by the learned Commissioner vis-a-vis respondents no.1 to 4 a sum of Rs. 40,000/- as funeral charges is beyond the statutory provisions engrafted in the Act. The aforesaid submission of the learned counsel appearing for the appellants holds vigour. Consequently, the quantification by the learned Commissioner under his impugned order qua a sum of Rs.40,000/- being defrayable to respondents No.1 to 4 as funeral charges is set aside. 8. The learned Commissioner in his impugned award has levied interest @ 12% per annum on the compensation amount assessed by him, levy whereof has been ordered to commence from the date of death of the deceased whereas under the relevant statutory provisions the commencement of levy of interest @12% was enjoined to occur on one month elapsing since the accident. Consequently, the levy of interest on the compensation amount assessed by the learned Commissioner shall commence on one month elapsing since the accident. 9. For the reasons recorded herein-above, the instant appeal is partly allowed and the award impugned before this Court is modified to the extent that a sum of Rs.40,000/- adjudged by the learned Commissioner vis-a-vis respondents No.1 to 4 towards funeral expenses of the deceased shall stand excluded from the compensation amount determined by him in their favour. 9. For the reasons recorded herein-above, the instant appeal is partly allowed and the award impugned before this Court is modified to the extent that a sum of Rs.40,000/- adjudged by the learned Commissioner vis-a-vis respondents No.1 to 4 towards funeral expenses of the deceased shall stand excluded from the compensation amount determined by him in their favour. Consequently, the levy of interest on the compensation amount assessed by the learned Commissioner shall commence on one month elapsing since the accident. All pending applications also stand disposed of. No order as to costs.