Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1307 (JHR)

Saviran Bibi v. Md. Kamaluddin

2019-07-19

ANANDA SEN

body2019
JUDGMENT : This appeal by the consent of the parties is being disposed of at the stage of admission itself as the Lower Court Records have been received. 2. This appeal has been filed under Section 30(1)(a) of the Employee's Compensation Act by the appellants-claimants for enhancement of the awarded amount. 3. The deceased Hakim Jan Miya @ Hakim Ansari was a Khalasi of Truck bearing Registration No. JH 10X 9061, which was owned by Opp. Party No. 1 and insured by Opp. Party Nos. 2 and 3. The truck was standing on the plank of Mohanpur Tundi Road near Parasnath Petrol Pump and the deceased was unloading tripal from the truck and in course of employment, he came in contact with 11000 volt of electric wire, as a result of which, he fell down on the road and sustained injury and died on spot. Thereafter, Giridih Mufassil P.S. Case No. 12/2011 was registered. 4. The claimants, who are the heirs of the deceased, are claiming compensation under the provision of Employees' Compensation Act as the deceased was an employee of respondent No. 1. Upon notice, respondent No. 1 appeared and filed his written statement admitting the relationship of employee and employer between the deceased and himself. He also admitted that the deceased was being paid monthly salary of Rs.4,500/- and Rs.50/-per day as 'Khuraki'. The Insurance Company neither appeared nor filed written statement. 5. From the judgment, I find that the notices which were sent to the Insurance Company was returned with endorsement of refusal. Accordingly, the Insurance Company was debarred from filing written statement. 6. Issues were framed by the Presiding Officer, Labour Court, Deoghar. One of the issues is as to whether the deceased-workman was getting monthly salary of Rs.4,500/- and Khuraki Rs.50/-per day. The Presiding Officer while deciding the issues has held that it is admitted and un-challenged fact that the deceased was getting Rs.4,500/-per day as salary and Rs.50/-per day as Khuraki. Thereafter, the Presiding Officer while computing the compensation did not take into consideration the amount of Khuraki, which is admittedly paid to the deceased Rs.50/-per day on the ground that the said amount is not the fixed amount and the said amount is paid only when the khalasi works in the truck and thus there is no measurement to calculate the said amount. The court below has also taken note that sum of Rs.50/- on the head of Khuraki is not a salary and an amount of Rs.4,80,000/- was directed to be paid as compensation. 7. Learned counsel appearing on behalf of the appellants submits that as per definition of Wages under the Act, the amount of Khuraki should be added and the learned Presiding Officer, Labour Court has committed a grave illegality in leaving out the said amount. He further submits that the interest has been directed to be paid but the same is from the date of award and not from the date when the amount falls due. He submits that the claimants are entitled for interest from the date on which the amount of compensation falls due. 8. Learned counsel Mr. Ashutosh Anand appearing on behalf of the Insurance Company submits that the amount of Khuraki cannot come within the definition of wages. He further submits that the claimant themselves has categorized the income into two categories i.e. (i) salary and (ii) Khuraki. He also submits that the court below was correct in considering the amount of salary only for the purpose of calculating compensation. He submits that the amount of Khuraki is merely a travelling allowance, which cannot be the part of the wages. So far as interest is concerned, he submits that the interest is payable only if the amount is not paid and from the date when it falls due. It is responsibility of the owner of the vehicle to pay the interest and penalty. Though the owner has appeared by filing Vakalatnama, but none appeared on behalf of the Owner to argue this case. 9. I have heard the parties and I have gone through the record. The issue here is whether 'Khuraki' has to be considered for calculating compensation and whether interest is payable from the date the payment fall due. 10. The main contention is that as to whether the amount of Khuraki be added for computation of compensation or not. Section 2(m) of the Employee's Compensation Act, 1923 defines “wages”. As per the said definition, 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 towards any pension etc. Section 2(m) of the Employee's Compensation Act, 1923 defines “wages”. As per the said definition, 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 towards any pension etc. The counsel for the Insurance Company tries to impress this Court that the amount of Khuraki is nothing but travelling allowance, but this Court is not in agreement with the counsel for the Insurance Company. The amount of Khuraki comes under the food allowance and not under the travelling allowance and what is excluded, in the said definition of wages, is travelling allowance and not the food allowance. Food allowance is the benefit to an employee, which is capable of being estimated in money. Thus, Rs.50/-, which is the food allowance, is the part of the wages of the deceased and should be taken into consideration while calculating the amount of compensation. 11. Now the question is whether this food allowance will be for the entire month or for 26 days. It is expected that a person will not work for entire month without any leave. In common parlance, one day's leave per week is granted. Thus, it can be presumed that Khuraki is given to an employee at least for 26 days a month. Therefore, Khuraki for 26 days can be added with the amount of wages for the purpose of calculating the amount of compensation. 12. So far as interest is concerned, I find that the interest @ 9% has been awarded as penal interest from the date or the order till realization. Section 4-A of the Employee's Compensation Act, 1923 provides for payment of interest, which is 12% per annum. Section 4(3-A) of the Act, 1923, provides for payment of 12% p.a. simple interest. This interest as per Section 4-A of the Act is liable to be paid if the amount of compensation is not paid as soon as it falls due. Thus in view of the aforesaid provision, the Presiding Officer, Labour Court, Deoghar could not have award interest from the date of the judgment. This interest as per Section 4-A of the Act is liable to be paid if the amount of compensation is not paid as soon as it falls due. Thus in view of the aforesaid provision, the Presiding Officer, Labour Court, Deoghar could not have award interest from the date of the judgment. In terms of the said Section of the Act of 1923, the claimants are also entitled to receive interest @ 12% p.a. from the date of accident as because the compensation falls due, no sooner a person dies in accident. 13. Now, the question is that who will pay the interest amount, the owner or the Insurance Company? 14. The Insurance Company indemnifies the entire liability of the owner and the liability means the interest liability also. There is nothing on record to suggest that the interest liability was excluded and was not a condition of the policy. Be it noted that the Insurance Company neither filed any pleadings before the Court below nor adduced any evidence. Therefore, it can be said that the Insurance Company now in this appeal cannot take the plea that they will not indemnify the owner. Therefore, the Insurance Company has to indemnify the owner so far as interest liability also. 15. In view of the aforesaid facts, this appeal stands allowed. The Presiding Officer, Labour Court, Deoghar will re-calculate the amount of compensation in terms of order passed by this Court. The amount which has already been paid to the claimants will be deducted from the total amount, which will be calculated by the court. Both the parties are directed to appear before the Labour Court within a month. It is expected that the entire process will be completed by the Labour Court, Deoghar, within two months from today. The Insurance Company will make payment the balance amount to the claimants within a month thereafter. 16. In view of the aforesaid observations and directions, this appeal stands allowed.