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2019 DIGILAW 984 (GAU)

New India Assurance Co. Ltd. v. Rumi Bewa

2019-09-03

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Ms. M. Choudhury, learned counsel for the appellant Insurance Company. Earlier Ms. R. Goswami, learned counsel was appointed as the legal aid counsel, but the learned counsel is not representing the respondent as discernible from the order sheet. Consequently, we appoint Mr. A. Dhar, learned counsel to be the legal aid counsel to represent the interest of the respondent workman. 2. The claimant had lodged the present claim before the Commissioner, Workmen's Compensation, Dhubri for a compensation due to the death caused to her husband namely, Rafiqul Islam who was employed as an handy man in the Vehicle No. AS-17-2416 which is stated to be a canter vehicle. The vehicle concerned met with an accident on 08.04.2007 while proceeding from Gauripur towards Bilasipara. As a result of the accident, the husband of the claimant respondent sustained multiple injuries on his body because of which he died on the spot. Without going into the details of the claim, we take note of that the claimant respondent in her deposition had deposed that the deceased workman was receiving a salary of Rs. 4000/- to 4500/- per month. 3. The appellant Insurance Company by relying upon the written statement submitted by the owner of the vehicle who was arrayed as the opposite party No. 1 in the claim proceeding takes a stand that in the written statement, the owner of the vehicle had stated that the deceased workman was paid a salary of Rs. 3,000/- per month including daily allowance. The claimant respondent on the other hand in her deposition as already averred had deposed that the deceased workman received a salary of Rs. 4,000/- to 4500/- which also is stated to include the daily allowance. 4. We are unable to accept the ground put forward by the Insurance Company in this appeal for the reason that the written statement of the owner of the vehicle cannot be construed to be an evidence. On the other hand, it is the oral evidence on record of the claimant respondent that the deceased workman was paid a salary of Rs. 4000/- to 4500/- per month including the allowance, which stood un-rebutted. 5. The Commissioner, Workmen's Compensation, Dhubri in the judgment and order dated 29.09.2008 had accepted the salary of the deceased workman to be Rs. 3500/- per month including the daily allowance. 6. 4000/- to 4500/- per month including the allowance, which stood un-rebutted. 5. The Commissioner, Workmen's Compensation, Dhubri in the judgment and order dated 29.09.2008 had accepted the salary of the deceased workman to be Rs. 3500/- per month including the daily allowance. 6. As the ground taken by the Insurance Company that the salary of the deceased workman as stated in the written statement of the owner of the vehicle is to be made the basis to arrive at his salary, we unable to accept the said contention being raised. But on the other hand, the Insurance Company also urges upon that as per the law laid down by the Hon'ble Supreme Court in Surekha and Others vs. Branch Manager, National Insurance Company Ltd. and Another, (2017) 15 SCC 579 , the daily allowance component of the remuneration paid to the workman cannot be taken into consideration to arrive at his salary that was paid to him. In the instance case, even if the salary of the deceased workman is accepted to be Rs. 4,000/- as deposed by the claimant respondent, the same also includes the daily allowance component and therefore, that has to be deducted from his salary. 7. Although no material is available on record as to what could have been the daily allowance paid to the deceased workman, but in order to arrive at it, we use our discretion on the basis of the evidence on record in the other claim cases where in respect of handy man working in a motor vehicle around the same period when the accident took place, and accept the daily allowance to be around Rs. 20/- per day. 8. Instead of remanding the matter now back to the Commissioner, Workman Compensation for adducing evidence as to what could have been the component of daily wages in a matter where the accident took place in the year 2007, we require the parties before us to arrive at a settlement between themselves as to what could have been the component of the daily allowance. Both the learned counsel fairly agrees that Rs. 20/- per day would be a reasonable figure to be accepted to be the daily allowance. If we accept the daily allowance to be Rs. 20 per day, the same would approximately come to Rs. 600/- per month. Accordingly, we deduct Rs. 600/- per month from the salary of Rs. Both the learned counsel fairly agrees that Rs. 20/- per day would be a reasonable figure to be accepted to be the daily allowance. If we accept the daily allowance to be Rs. 20 per day, the same would approximately come to Rs. 600/- per month. Accordingly, we deduct Rs. 600/- per month from the salary of Rs. 4,000/- per month as deposed by the claimant respondent. The salary component without the daily allowance comes to Rs. 3400/- approximately and if we accept the salary to be Rs. 3400/- per month, the compensation has required to be calculated comes to approximately Rs. 3,60,000/-. Having said so, learned counsel for the parties further arrives at an agreement that if the compensation to be awarded is accepted to be Rs. 3,60,000/- it would meet the ends of justice. Accordingly, upon being agreed, it is ordered that the compensation to be paid for the death of the deceased workman is arrived at Rs. 3,60,000/-. Out of the amount of Rs. 3,60,000/- it is stated that Rs.3,00,000/- had been deposited before the Commissioner, Workman Compensation, Dhubri on 13.05.2010 and the same had already been withdrawn by the claimant respondent. As the interest component had not been paid for the amount deposited, we order that from the date of accident i.e. 08.04.2007 up to 13.05.2010 when the amount was deposited before the Commissioner, Workman Compensation, Dhubri, the Insurance Company shall pay the awarded interest of 9% per annum and for the balance amount of Rs. 3,60,000/- (-) Rs. 3,00,000/- which equals to Rs. 60,000/- the Insurance Company shall pay the same within a period of one month from today plus the interest @ 9% per annum from the date of the accident i.e. 08.04.2007 till the date of actual payment. The amount required to be paid as indicated above i.e. Rs. 60,000/- plus interest @ 9% per annum from the date of accident to the date of payment and 9% per annum for Rs. 3,00,000/- already deposited from the date of accident till the date of deposit be accordingly paid within a period of 1 month from today. 9. Appeal stands allowed. 10. Before parting with the record, we appreciate the valuable service rendered by Mr. A. Dhar, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 3,00,000/- already deposited from the date of accident till the date of deposit be accordingly paid within a period of 1 month from today. 9. Appeal stands allowed. 10. Before parting with the record, we appreciate the valuable service rendered by Mr. A. Dhar, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs. 7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order.