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2018 DIGILAW 863 (KAR)

Rani v. Samiulla

2018-08-07

KRISHNA S.DIXIT

body2018
JUDGMENT : KRISHNA S. DIXIT, J. 1. This Claimants' appeal challenges the judgment and order dated 31.05.2013 made by the Commissioner for Workmen's Compensation (hereafter 'Commissioner') allowing W.A.C.No.6/2008 whereby, a compensation of Rs. 2,76,255/- with statutory interest at the rate of 12% p.a. has been ordered subject to usual condition of bank deposit. 2. In a vehicular accident, arising out of and in the course of employment, on 16.02.2006, one Mr.Kumar sustained fatal injury and breathed his last. The legal representatives of the deceased had presented the claim petition seeking compensation. The same was stoutly opposed by the insurer by filing the Objection Statement. 3. To prove their claim, the widow of the deceased Smt.Rani was examined as PW.1 and in her evidence, 10 documents came to be marked as per Exhibits P1 to P10 which comprised of the Charge Sheet, Post Mortem Report, Death Certificate, Heirship Certificate and Ration Card amongst others. From the side of the respondents, affidavit evidence was filed and two documents as per Exhibits R1 and additional Exhibit P1-2 came to be marked. 4. The Commissioner after adverting to the pleadings of the parties, and after weighing the evidence on record, has entered the impugned judgment and award. The challenge by the Claimants is on the ground of inadequacy. 5. The Appellant-Claimants has framed one substantial question of law at Page 7 of the Appeal Memo, as under: "1. Whether the Commissioner for Workmen's Compensation was correct in taking the income of the deceased at Rs. 100/- per day when it is statutory law that the minimum wages under the Minimum Wages Act would be Rs. 150/- per day?" This Appeal is admitted and heard on the said substantial question of law. 6. The learned counsel for the appellant-claimants submits that the Commissioner is not justified in taking notional income of the deceased at Rs. 100/- per day ignoring the then contemporary labour market and the obtaining wage rates when the accident occurred. She points out from the Income Chart of the Lok Adalath and from the evidentiary material on record that the deceased was earning more than Rs. 150/- per day. 7. On the basis of the evidentiary material on record and the wage standards/rates mentioned in the notifications under the Minimum Wages Act, 1948 and the Payment of Wages Act, 1936 to contend that the amount of Rs. 150/- per day. 7. On the basis of the evidentiary material on record and the wage standards/rates mentioned in the notifications under the Minimum Wages Act, 1948 and the Payment of Wages Act, 1936 to contend that the amount of Rs. 100/- per day taken by the MACT is too meager to be mentioned. She further submits that no reasonable person legally trained and in the armchair of the Commissioner would have recorded such a finding as to the daily wage of the deceased. There is lot of force in this submission and therefore, the daily income of the deceased is taken at Rs. 150/- per day instead of Rs. 100/- per day. 8. Ordinarily, the question of employment and the terms of employment, do fall within the realm of facts, as rightly contended by the counsel for the other side. However, where important material evidence is ignored by the authority and the finding challenged, would not have been recorded by any reasonable person trained in the armchair of the authority, the question takes different complexions of law. In this case, the substantial question of law framed in the appeal memo is answered in the negative and in favour of the claimant. 9. The amount of compensation has been re-worked out with this altered factor, keeping in view the Memo of Calculation jointly submitted at the Bar. Amount Awarded by the Commissioner by operating the factors: 3000 x x 184.17 = Rs. 2,76,255/- Now, the amount of compensation to be awarded because of the altered factors i.e., daily wage rate of the deceased being taken at Rs150/- per day 4,500 x x 184.17 = Rs. 4,14,383/- 10. In the above circumstances, this appeal succeeds in part; the impugned judgment and order made by the Commissioner are modified enhancing the compensation from Rs. 2,76,255/- to Rs. 4,14,383/- with 12% interest that would accrue due one month after the accident till the actual payment is made. All other conditions of the impugned judgment and order are left intact and unaltered. The learned High Court Government Pleader Smt. Rafeeunisa appearing for the Respondent No.6 is permitted to file Memo of Appearance within four weeks. Costs made easy.