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2016 DIGILAW 2586 (HP)

United India Insurance Co. Ltd. v. Teji Devi

2016-12-06

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal arises from the impugned order rendered on 16.02.2016 in W.C. Petition No.66 of 2011 by the learned Commissioner, Employees Compensation, Civil Judge (Senior Division) Mandi, District Mandi, H.P., (for short the “Commissioner”), whereby he allowed the petition preferred thereat by the claimants/respondents No.1 & 2 for the grant of compensation under the Workmen (Employee's) Compensation Act (for short the “Act”). 2. The predecessor-in-interest of respondents No.1 and 2 herein during the course of his employment as a conductor in truck bearing No. HP-38-F-8529 owned by respondent No.3 herein suffered his end in a motor vehicle accident involving the aforesaid vehicle. Under the impugned award the learned Commissioner assessed compensation in a sum of Rs.9,05,520/- vis-a-vis the successor-in-interest of deceased Bhimi Singh, liability whereof for its defrayment qua them stood fastened upon the insurer/appellant herein. 3. Uncontrovertedly, in the accident involving truck bearing No. HP-30F-8529 owned by respondent No.4, whereon the deceased stood engaged as a conductor by its owner, the truck aforesaid suffered a mishap on 2.11.2009, in sequel whereof, deceased Bhimi Singh met his end, obviously when thereat he was performing thereon his relevant employment as a conductor under respondent No.3 herein. 4. After hearing the learned counsel appearing for the appellant/insurer also the counsel for the Cross-objector, the instant appeal as also the cross-objections instituted by the Cross-objector stand admitted by this Court on the hereinafter extracted substantial questions of law:- FAO No. 416 of 2016. “1. Whether the Commissioner is justified to conclude the salary of the deceased Bhimi Singh for Rs.8000/- per month without there being any evidence and whether the Commissioner is competent to ignore the maximum ceiling of salary of a workman for Rs.4000/0 per month as contemplated in Section 4(a)(a)(b), Explanation II of The Employees Compensation Act, 1923, where the monthly wages of a workman exceeded 4000/- rupees, his monthly wages for the purpose of Clause (a) and (b) shall be deemed to be 4000/- rupees only? 2. Whether the Commissioner below is justified in to apply relevant factor of 226.38 in the instant case especially when the age of deceased was 19 years and as per schedule IV under Section 4 of the Employees Compensation Act, 1923 the relevant factor is 225.22? Cross Objections No.122 of 2016. 3. 2. Whether the Commissioner below is justified in to apply relevant factor of 226.38 in the instant case especially when the age of deceased was 19 years and as per schedule IV under Section 4 of the Employees Compensation Act, 1923 the relevant factor is 225.22? Cross Objections No.122 of 2016. 3. Whether the objectors/respondents No.1 and 2 are entitled to interest on the compensation amount awarded @ 12% per annum in terms of Section 4 of the Employees Compensation Act? Substantial Question of law No.1. 5. Given the uncontroverted factum qua the accident involving the vehicle aforesaid occurring on 2.11.2009 warranted the learned Commissioner to in his proceeding to assess compensation qua the claimants/successors-in-interest of deceased Bhimi Singh to mete deference to the apposite statutory provisions of the Workmen's Compensation Act, apposite provisions whereof stand encapsulated in Explanation-II occurring in Section 4 of The Workmen's Compensation Act, 1923, Explanation-II whereof stood incorporated therein by a legislative Enactment brought into force by the Act of 46 of 2000 besides under the amendment aforesaid carried vis-a-vis Section 4 of the Act whereby Explanation-II stood incorporated therein, the apposite Explanation-II embodied therein acquired force on 8.12.2000. The currency of the aforesaid Explanation-II, added to Section 4 of the Workmen Compensation Act, 1923 by the legislative amendment aforesaid remained in existence upto 17.01.2010 there within a mandate stands cast upon the learned Commissioner to in sequel thereof imminently with the accident here at occurring on 2.11.2009, hence, during the currency of the provisions of Explanation-II added to the statute by way of an amendment effectuated on 8.12.2000, to where evidently the monthly wages of a workman exceed Rs.4000/-, his monthly wages for the purpose of applying thereon the relevant statutory factor standing circumscribed in a sum of Rs.4000/-, hence, mete deference thereto. Contrarily, the learned Commissioner has inaptly drawn a conclusion qua with the evident factum of the deceased drawing from his relevant employment as a conductor under respondent No.3 herein in the ill-fated vehicle herein monthly wages in a sum of Rs.8000/-, whereupon he by applying the inapposite statutory provisions circumscribed his wages in a sum of Rs.4000/-, for the relevant computation standing made therefrom, he thereafter made an erroneous computation of compensation amount payable to the claimants. The inherent fallacy ingraining the factum of the learned Commissioner inaptly proceeding to mete deference to the amended provisions of Section 4 of The Employee's Compensation Act, 1923, whereupon under an apposite legislative amendment brought into force with effect from 18.01.2010, Explanation-II incorporated therein by an amendment which previously occurred in the year 2000 stood omitted, visibly arises from his fallaciously meeting retrospective effect thereto, whereas with the ill-fated accident involving truck bearing No. HP-38-F-8429, whereupon, deceased Bhimi Singh stood employed as a conductor under respondent No.3 herein occurring on 2.11.2009 whereat the provisions of Explanation-II occurring in Section 4 of the Workmen's Compensation Act, 1923 enjoyed force besides sanctity warranted deference standing meted thereto by the learned Commissioner, reiteratedly his conspicuously proceeding to revere or mete deference to the provisions of Section 4 of the Employee's Compensation Act, 1923 whereby in the year 2010, explanation-II which hitherto occurred there within stood deleted is grossly unwarranted. Consequently, the learned Commissioner has fallen in gross error while computing the reckonable salary of the deceased at Rs.8000/- per month, whereas, by applying the rigors of the apposite Explanation-II of Section 4 of the Workmen's Compensation Act it is to stand statutorily restricted in a sum of Rs.4000/- per month whereon after meeting thereto the apposite statutory deduction, the apposite factor for computing compensation vis-a-vis the claimants/respondents No.1 and 2 is to be applied. Accordingly, substantial questions of law No.1 is answered in favour of appellant and against the respondents. Substantial question of law No.2. 6. The learned Commissioner while applying the relevant statutory principle/factor for computing compensation qua the claimants/respondents No.1 and 2 herein has slighted the age of the deceased workman which indisputably at the time of accident was 19 years, whereupon, the relevant factor for application vis-a-vis the compensation amount prescribed in Schedule-II is 225.22, whereas, his applying the inapposite factor of 226.38 has resulted in his computing an unfair or an erroneous compensation amount vis-a-vis the successors-in-interest of the deceased workman. Consequently, for the reasons aforestated, when explanation-II of The Workmen's Compensation Act was applicable at the relevant time of occurrence of the ill-fated mishap, thereupon with this Court concluding qua the deceased workman uncontrovertedly at the relevant time of his employment under his employer earning a salary exceeding Rs.4000/- per month, whereupon with the apt Explanation-II mandating qua his salary standing pegged in a sum of Rs.4000/- per month, whereupon after meeting 50% deduction thereto, the apt reckonable amount per mensem comes to Rs.2000/-, on application thereon of the relevant statutory factor of 225.22, the compensation amount assessable vis-a-vis the claimants/successor-in-interest/respondents No.1 and 2 is computable in a sum of Rs.4,50,440/- (Rs. 2000X225.22). Accordingly, substantial question of law No.2 is answered in favour of the appellant and against the respondents. Substantial Question of Law No.3. 7. The learned counsel appearing for respondents No.1 and 2/cross-objectors submits that the learned Commissioner erroneously awarded interest @ 6% per annum on the compensation amount. The aforesaid submission warrants it being accepted as the levying of interest by the learned Commissioner on the compensation amount is beyond the statutory prescription held in clause (a), subsection (3) of Section 4-A of the Workmen's Compensation Act, 1923 where within a mandate is held qua interest @ 12% being leviable since the elapse of one month since the accident. Consequently, the aforesaid compensation amount assessed at Rs. 4,50,440/- qua the claimants/respondents No.1 and 2 shall carry interest at the rate of 12% per annum from one month elapsing since the date of accident till its realization. Accordingly, substantial question of law No.3 is answered in favour of the cross-objectors/respondents No.1 and 2 and against the appellant. Liability qua the aforesaid compensation amount shall be borne by the insurer. 8. For the reasons recorded hereinabove, the instant appeal as also the cross-objections are both allowed. Consequently, the impugned award is modified in the manner aforestated. All pending applications also stand disposed of. No order as to costs.