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2018 DIGILAW 96 (TRI)

New India Assurance Company Ltd. v. Kamalapati Debbarma

2018-04-06

S.TALAPATRA

body2018
JUDGMENT : Heard Mr. A. Gon Choudhury, learned counsel appearing for the appellant as well as Mr. N. Majumder, learned counsel appearing for the respondents No.3 & 4 and Mr. A.L. Saha, learned counsel appearing for the respondent No.6. None appears for the respondents No.1 and 2 when the matter is taken up for hearing. This is an appeal under Section 30 of the Employees Compensation Act, 1923 from the judgment and award dated 14.08.2014 delivered in T.S. (E/C) No.08 of 2013 by the Commissioner of Employees Compensation Act, West Tripura, Agartala. The fundamental ground of objection for purpose of framing the substantial question of law as resorted by the appellant is that the deceased workman was engaged for driving the vehicle bearing registration No.TR-01-4496 for the day only when the accident occurred and as such, he cannot be termed as the permanent employee and for his death the owner cannot be made liable for paying the compensation under the Employees’ Compensation Act, 1923. The challenge has also been projected against the determination of the monthly wage of the deceased workman at Rs.8,000/-. So far the determination of the monthly wage is concerned, it cannot form the substantial question as law has permitted the Commissioner, Employees’ Compensation to determine the wage on considering the various aspects as defined in Section 2(m) of the Employees Compensation Act, 1923 which reads as under: “(m) “wages”, includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of [an employee] towards any pension or provident fund or a sum paid to 5[an employee] to cover any special expenses entailed on him by the nature of his employment;” The other question as raised by the appellant has no substance inasmuch as the provision under Section 2(n) under the Employees’ Compensation Act, 1923 creates no prohibition that a casual workman will not be entitled to get any compensation under the Employees’ Compensation Act, 1923. The said provision has been restructured by the Workmen’s Compensation Amendment Act, 2009. The said provision has been restructured by the Workmen’s Compensation Amendment Act, 2009. The earlier provision under Section 2(n) of the Workmen’s Compensation Act, 1923t was as follows : “(n) “workman”” means any person who is–– (i) a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989 (24 of 1989), not permanently employed in any administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ia) (a) a master, seaman or other member of the crew of a ship, (b) a captain or other member of the crew of an aircraft, (c) a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle.” Even that clause had fallen for interpretation by the various courts including Gauhati High Court. It has been held that if a driver drives a vehicle on casual basis, he would be entitled to compensation if he suffered injury or fatal consequence from an accident in the course or out of the employment under the Workmen’s Compensation Act, 1923. In order to obviate any sort of confusion, the entire provision has been deleted, meaning every person who is capable of designated as the workman or the employee under Section 2(dd) will be entitled to get the compensation if the said employee suffers permanent disablement or the partial permanent disablement or any injury including death in the course of employment. In view of that, this appeal is devoid of merit and accordingly, the same is dismissed. Send down the LCRs forthwith.