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2019 DIGILAW 1649 (HP)

Oriental Insurance Company Ltd. v. Naina Devi

2019-11-05

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. Aggrieved by the impugned award, dated 28.2.2013, passed by the learned Commissioner, Employee's Compensation, Court No. 1, Mandi, H.P., the appellant-Insurance Company has filed the instant appeal. 2. Respondents No. 1 to 3/claimants filed a claim petition before the then Workmen Compensation Commissioner(now Commissioner, Employee's Compensation) under Section 22 of the erstwhile Workmen Compensation Act for grant of compensation on account of death of Virender Singh, who died in a motor vehicular accident on 19.5.2004, during the course of his employment as Conductor with respondent No. 5, Rajinder Prashad Nag. It was alleged that on 19.5.2004, the deceased was returning to Kullu after unloading vegetables at Mandi. At about 11.00 P.M. when the vehicle in question (Swaraj Mazda bearing No. HP-34A-2143) reached near Banala on National Highway 21, it fell down into river Beas, resulting in death of Virender Kumar, which led to lodging of FIR No. 63/2004 dated 20.5.2004 under Sections 279 and 337 IPC against the driver of the vehicle. The deceased was stated to be hale and hearty aged 30 years and getting monthly wages of Rs. 4000/- per month including diet money i.e. Rs. 50/- per day at the time of accident. The claimants were dependents upon the deceased being mother and minor children. 3. The claim petition was contested by the respondent-owner on the ground that the claim petition was not in consonance with the provisions of the Act and it was averred that monthly wages of the deceased were Rs. 1800/- per month inclusive of T.A. and D.A. and not Rs. 4000/- per month as claimed. However, employment of the deceased as Conductor and his death during the course of his employment was not disputed. 4. The appellant-Insurance Company contested the claim petition on the ground that the deceased had not sustained injuries and died out of and during the course of his employment with respondent No. 5 and further claimed that it was the owner, who alone was required to pay the compensation, if any, to the claimants. 5. On the pleadings of the parties, the learned Commissioner below on 27.3.2008 framed the following issues:- 1. Whether the deceased died during the course of his employment with respondent No. 1? OPP 2. Whether the petitioners are entitled for compensation and from whom and what amount? OPP 3. Whether the vehicle was insured at the relevant time? 5. On the pleadings of the parties, the learned Commissioner below on 27.3.2008 framed the following issues:- 1. Whether the deceased died during the course of his employment with respondent No. 1? OPP 2. Whether the petitioners are entitled for compensation and from whom and what amount? OPP 3. Whether the vehicle was insured at the relevant time? OPR 4. Whether the deceased of the vehicle was having valid licence or not? OPR-2 5. Relief. 6. After recording the evidence and evaluating the same, the learned Commissioner vide award, dated 28.2.2013, while calculating monthly wages of the deceased to be Rs. 4000/- per month awarded a sum of Rs. 4,15,960/- in favour of the claimants and the said award was ordered to be indemnified by the appellant-Insurance Company. 7. Aggrieved by the award so passed, the appellant-Insurance Company has filed the instant appeal, which came to be admitted on 30.7.2013 on the following substantial questions of law:- 1. Whether the amount of compensation assessed and ordered to be paid to the claimants is contrary to facts and evidence on record and thereby has resulted into perversity and as such, the impugned award is liable to be modified on this count? 2. Whether interest for the period from 19.6.2004 till 28.2.2013 could be ordered to be paid to claimants by the appellant/insurer when the compensation amount due and payable to claimants was determined by Ld. Commissioner vide the impugned award dated 28.2.2013 when the claim petition was decided? SUBSTANTIAL QUESTION OF LAW No. 1: 8. It is vehemently argued by Mr. Ashwani K. Sharma, learned Senior Advocate assisted by Mr. Ishan Sharma, Advocate, for the appellant-Insurance Company that the learned Commissioner could not have assessed the income of the deceased to be Rs. 4,000/- per month when the Act itself provided for maximum income to be Rs. 2000/- per month, however when confronted with the provisions of the Workmen's Compensation Amending Act of 46 of 2000, whereby ceiling on monthly wage prescribed in Explanation II below Section 4(1)(b) for determining the maximum amount of compensation has been enhanced from Rs. 2000/- to Rs. 4000/-, gave up this point and rightly so as the amendment has come into operation much prior to the accident. 9. 2000/- to Rs. 4000/-, gave up this point and rightly so as the amendment has come into operation much prior to the accident. 9. However, learned senior counsel for the appellant-Insurance Company would yet argue that once it is established on record that the monthly wages of the deceased were only to be Rs. 1800/- inclusive of T.A. and D.A., the learned Commissioner could not have assessed the same to be Rs. 4000/-. He would invite the attention of this court to the testimony of respondent No. 5-owner of the vehicle, who appeared in the witness box as RW-1. 10. Adverting to the testimony of RW-1, it would be noticed even though this witness has stated that he was paying a sum of Rs. 1800/- per month to the deceased inclusive of T.A. and D.A., however when cross-examined, he admitted that whenever the vehicle went out of the district, he in addition to the regular pay was also paying wages, which were about Rs. 60/- or Rs. 70/- per day. 11. Once that be so, then I really do not find any fault in the findings of the learned Commissioner, whereby he assessed the monthly income of the deceased to be Rs. 4000/-, more particularly, when the owner of the vehicle has failed to maintain and thereafter produce the accounts as required under Section 13-A of the Payment of Wages Act, 1936. 12. Similar issue came up before the Hon'ble Supreme Court in Jaya Biswal and others vs. Branch Manager, IFFCO TOKIO General Insurance Co. Ltd., (2016) 11 SCC 201 , wherein like this case, neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of accident and the learned Commissioner took into consideration the fact that the deceased was highly skilled workman and would often be required to undertake long journeys outside the State in the line of duty and worked out the wages to be Rs. 10,000/- per month and the same were affirmed by the Hon'ble Supreme Court by observing as under:- 28. 10,000/- per month and the same were affirmed by the Hon'ble Supreme Court by observing as under:- 28. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs. 4,000/- per month + daily bhatta of Rs. 6,000/- per month, which amounts to a total of Rs. 10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos. 1 and 2 are old and have lost their elder son and they have become destitutes. 29. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: "13-A. Maintenance of registers and records- (1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein." From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No. 2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. 13. Similar reiteration of law can be found in a judgment rendered by this Court in Krishna Devi and Ors. vs. Harjit Singh and Anr., Latest HLJ 2018(HP) 1196, wherein it was observed as under:- 4. In coming to the aforesaid conclusion qua the statutory necessity of the employer to maintain, and, produce the records, with respect to the apt wages, defrayed by him to his employees, and, in case of omission, of, production thereof, before the Courts concerned, an, adverse inference being drawable against the owner, and, to a further conclusion qua thereupon, the, testification rendered by the dependents of the deceased, vis-a-vis, the per mensem salary of the latter, rather, warranting meteing of credence thereon, this Court is supported, by a judgment rendered by the Hon'ble Apex Court, in, a case titled as Jaya Biswal vs. IFFCO Toko General Insurance Co. Ltd., reported in (2016) 11 SCC 201 , the relevant paragraph No. 29 whereof, stand extracted hereinafter:- 29. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under: "13-A. Maintenance of registers and records- (1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein." From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No. 2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. Consequently, the per mensem salary of the deceased, is, computed as Rs. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. Consequently, the per mensem salary of the deceased, is, computed as Rs. 10,000/-, hence, the compensation amount is determined as under:- Age of the deceased at the time of accident 60 years Factors to be applied 117.41 Income of the deceased at the time of accident Rs. 10,000/- per month Compensation amount calculated Rs. 5000 x 117.41 = Rs. 5,87,050/- Expenditure of Funeral Rs. 5000/- Total Compensation Rs. 5,87,050 + 5000 = Rs. 5,92,050/- (Rs. Five Lacs ninety two thousand and fifty only) Accordingly, the substantial question of law is answered against the appellant-Insurance Company. SUBSTANTIAL QUESTION OF LAW No. 2: 14. The claim petition in the instant case was presented by the claimants on 14.11.2005 and not on 16.4.2011 as observed by the learned Commissioner and the proceedings remained pending before the learned Commissioner for almost 8 years. 15. A perusal of the zimini orders would show that at no stage were the claimants or their counsel ever negligent or can be held to have intentionally delayed the proceedings. In such circumstances, it cannot be held that the findings qua award of interest are unwarranted or in any manner contrary to law. Substantial question of law is answered against the appellant-Insurance Company. 16. In view of aforesaid discussion, I find no merit in the appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.