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2025 DIGILAW 917 (HP)

National Insurance Company Ltd. v. Trishala Devi

2025-05-05

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. The challenge in the instant appeal is to the award dated 27.10.2016, passed by the learned Commissioner under the Employees Compensation Act, 1923, Amb, District Una (hereinafter referred to as the Commissioner) in case No. 3/WCC/09. 2. The appellant/insurer by way of instant appeal has assailed the award as to quantum of compensation awarded by the learned Commissioner below. 3. The claim petition was filed under Section 22 of the Employees Compensation Act by the legal representatives of deceased Sh. Vijay Kumar, who had died on 13.5.2007 while driving Truck No.HP-20A-8962 in the course of his employment with the employer. 4. The Truck No. HP-20A-8962 was owned by the employer and the deceased Vijay Kumar had been employed as a driver to drive the same. 5. It was claimed in the claim petition that the deceased Vijay Kumar was being paid salary of Rs.5000/- per month by the employer. In addition, he was being paid a sum of Rs.50/- per day for daily diet expenses. In this manner the total monthly wages of the deceased were claimed at Rs.6500/- 6. The truck was alleged to be insured with the National Insurance Company Limited (for short the insurer). 7. The deceased was stated to be 42 years old at the time of accident. 8. On the above premise the compensation was claimed. 9. The employer and insurer both contested the claim petition by filing their respective replies. The employer though admitted the factum of deceased being its employee, but denied the payment of wages as claimed by the claimants. As per employer, the deceased was being paid a sum of Rs.3000/- per month as wages. 10. The insurer raised the objection as to maintainability of the petition. It was also alleged that the deceased was not holding a valid driving license at the time of accident and for such reason the claimants were stated to be not entitled to the compensation. 11. Learned Commissioner held that the salary of the deceased was Rs.5000/- per month and in addition, he was being paid Rs.1500/- per month as diet money. Keeping in view the capping of income at Rs.4000/- per month as per Section 4 of the Employees Compensation Act, learned Commissioner held that the salary of the deceased could not be taken to be more than Rs.4000/- per month. Keeping in view the capping of income at Rs.4000/- per month as per Section 4 of the Employees Compensation Act, learned Commissioner held that the salary of the deceased could not be taken to be more than Rs.4000/- per month. However, the learned Commissioner added Rs.1500/- per month as diet money and thus held the total wages/emoluments of the deceased at Rs.5500/. The said figure was then divided by two and multiplied by a factor 178.49. Accordingly, the claimants were held entitled to a sum of Rs.4,90,847/-. In addition, the claimants have also been held to be entitled to interest at the rate of Rs.12% per annual from 27.09.2007 till the passing of award. Penalty of Rs. 1,00,000/- has also been imposed. 12. The insurer has been held liable to pay the compensation along with interest amount and the employer has been held liable to pay the penalty. 13. The appeal has been admitted on 21.12.2017 on the substantial questions of law : 1. Whether impugned judgment/award is against the provisions of Sections 3,4 and4-A of the Employee’s Compensation Act, 1923? 2. Whether calculation of compensation awarded by learned Commissioner under Employee’s Compensation Act, Amb is not in consonance with law of land as settled by the Apex Court? 3. Whether the appellant had proved on record that deceased driver was not holding a valid and effective driving licence at the time of the accident, the original licence having been proved to be fake, its subsequent renewal could not validate it and the appellant company had to be exonerated? 4. Whether learned Commissioner has committed mistake in awarding interest from the date of application? 14. I have heard the learned counsel for the parties and have gone through the record of the case. 15. The first question regarding which the parties have raised dispute is with respect to the monthly wages of the deceased at the time of accident. Learned Senior counsel for the insurer has placed the reliance on the version put forth by the employer and on its basis, it has been contended that the learned Commissioner has erred in assessing the wages of the deceased higher than what had been admitted by the employer. The reliance has also been placed on the reply filed by the employer as also statement of RW2. The reliance has also been placed on the reply filed by the employer as also statement of RW2. On the other hand, learned Senior counsel for the claimants has submitted that the stand taken by the employer cannot be considered as a gospel truth for the reasons firstly that the Director of M/s Kushal Roller Flour Mills Pvt Ltd. (employer) had not stepped into the witness box and secondly though the alleged representative of said Company had appeared as RW-2 but his statement also cannot be taken as a conclusive proof of the fact as he had failed to produce any record of the company to justify the stand. He has further submitted that in such circumstances, there is no reason to disbelieve PW-2, who is wife of deceased Vijay Kumar and will be the best person to state as to what salary or wages were being earned by her husband prior to his death. 16. Having considered rival submissions, I find the contentions raised on behalf of claimants to be more plausible. The employer is a Private Limited Company. Indisputably the deceased Vijay Kumar was employed with the said Company. RW-2 while appearing as witness stated while being cross examined that there was no record of the employment or wages being paid to the deceased Vijay Kumar in the Company, which is highly unbelievable. The possibility of the record of Company being suppressed cannot be denied. In such circumstances, to disbelieve the statement of the wife of deceased will be unjustified. The view taken by the learned Tribunal is a possible view and there is no substantive material on record to dislodge such a view. 17. However, another contention of the learned counsel for the insurer is that once Section 4 of the Act prescribed a capping of maximum amount of Rs. 4,000/- per month, learned Tribunal could not have added anything more to such amount under any other head. 17. However, another contention of the learned counsel for the insurer is that once Section 4 of the Act prescribed a capping of maximum amount of Rs. 4,000/- per month, learned Tribunal could not have added anything more to such amount under any other head. She has placed reliance on Section 2 (m) of the Employees Compensation Act which reads as under: "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 a *[employee] towards any pension or provident fund or a sum paid to a *[employee] to cover any special expenses entailed on him by the nature of his employment;” 18. Keeping in view of the provisions of Section 2 (m) of the Act, the impugned award needs interference to the extent that monthly wages of the deceased could not be taken as Rs.5500/-. There was no evidence to suggest that any special expenses entailed from the nature of employment of the deceased. 19. Thus, the monthly wages of the deceased could not exceed Rs. 4000/-. 20. The deceased had completed the age of 42 years on his last birthday immediately preceding the date on which the compensation fell due, therefore, learned Tribunal has rightly applied the factor of 178.49 as per fourth schedule to the Act ibid. 21. Thus, the amount of compensation payable to the claimants shall be as under: Rs. 2000 X 178.49=Rs.3,56,980/- 22. In addition, the claimants shall also be entitled to statutory interest at the rate of 12% per annum on the compensation amount w.e.f. the date of accident till the date of deposit and both these sums shall be paid by insurer as the insurer has not been able to prove any violation of the contract of insurance. 23. The employer/insured had filed cross-objections No.91 of 2018 assailing the imposition of penalty by learned Commissioner. However, cross-objections were dismissed as withdrawn by the employer/insured vide order dated 31.05.2018. Thereafter, the employer/insured has not assailed the award passed by the learned Commissioner in any proceeding, therefore, the said award has attained finality against the employer/insured. 24. The substantial questions of law are decided accordingly. 25. Accordingly, the instant appeal is partially allowed. However, cross-objections were dismissed as withdrawn by the employer/insured vide order dated 31.05.2018. Thereafter, the employer/insured has not assailed the award passed by the learned Commissioner in any proceeding, therefore, the said award has attained finality against the employer/insured. 24. The substantial questions of law are decided accordingly. 25. Accordingly, the instant appeal is partially allowed. The impugned award dated 27.10.2016 passed by the learned Commissioner,under the Employees Compensation Act, Amb, District Una, Himachal Pradesh in Case No. 3/WCC/09 shall stand modified in terms of what has been held above. 26. Pending application(s), if any also stand disposed of.