Tripura High Court
Cholamandalam Ms General Insurance ... vs ) Smti. Supriya Debnath on 20 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 22
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
Review Pet. No.58 of 2018
Cholamandalam MS General Insurance Company Limited,
represented by its Branch Office at Akhaura Road,
Mantribari Road Extension, P.S. West Agartala,
District : West Tripura, PIN : 799001
----Petitioner(s)
Versus
1) Smti. Supriya Debnath,
wife of late Babul Debnath
2) Miss. Mahie Debnath,
daughter of late Babul Debnath
3) Smti. Suchitra Debnath,
wife of Sri Mono Ranjan Debnath
4) Sri Mono Ranjan Debnath,
son of late Khetra Mohan Debnath
the claimant No.2 being minor is represented
by her mother Smti. Supriya Debnath
5) Smti.Bithi Roy(Saha),
wife of Sri Nabangshu Bhusan Saha
-all are residents of Shibnagar,
near College Lakeghat, P.S. East Agartala,
District : West Tripura
---- Respondent(s)
For Petitioner(s) : Mr. P.K. Ghosh, Adv.
For Respondent(s) : None
Date of hearing : 16.12.2019
Date of delivery of
Judgment & Order : 20.01.2020
Whether fit for
reporting : YES
BEFORE
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
By means of this review petition, the petitioner [the appellant in Case No. MFA(WC)No.03 of 2016] seeks review of the Page 2 of 6 judgment and order dated 20.04.2018 whereby the appeal was dismissed being devoid of merit.
2. The fundamental ground that has been taken to satisfy the requirement of Order XLVII Rule 1 read with Section 114 of the C.P.C. is that the monthly wage cannot be more than Rs.8000/- per month in terms of the amendment carried out in terms of Section 4(1B) which provides that the Central Government may, by notification in the Official Gazette, specify, for purpose of sub-Section (1), such monthly wages in relation to an employee as it may consider necessary.
3. According to the review petitioner, by the notification dated 31.05.2010 under F.No.S-37012/1/2008-S.S.-I(Vol.II) [Annexure-1 of the Revenue Petition] issued by the Ministry of Labour and Employment in exercise of the power under sub-Section(1B) of Section 4 of the Employees Compensation Act, 1923, the Central Government has specified, for the purposes of sub-Section(1) of the said section, the following amount as monthly wages, with effect from the date of publication of the said notification in the Official Gazette i.e. 31.05.2010:-
"Eight thousand rupees".
4. Mr. P.K. Ghosh, learned counsel appearing for the review petitioner has quite emphatically submitted that the monthly wage cannot be taken more than Rs.8000/- per month for purpose of computing compensation under sub-Section(1) of Section 4 of the Employees Compensation Act, 1923.
5. Since, the Commissioner for the Employees Compensation assessed the monthly salary of the employees at Rs.15,000/- per month, on the face of the record, the appellate-judgment dated 20.04.2018 be reviewed by reducing the monthly income from Rs.15,000/- to Rs.8000/- of the employee who died in the accident occurred on 09.09.2013 in the Page 3 of 6 course of his employment. No other ground has been agitated, even in the hearing.
6. There cannot be any dispute that by the Employees Compensation(Amendment)Act, 2009, Section 4 of the principal act has been amended in the following manner by Section 7 of the said amendment act :
"7. In section 4 of the principal Act,-
(a) in sub-section(1),-
(i) in clause(a), for the words "eighty thousand rupees", the words ""one lakh and twenty thousand rupees" shall be substituted;
(ii) in clause(b), for the words "ninety thousand rupees", the words "one lakh and forty thousand rupees" shall be substituted;
(iii) after clause (b), the following proviso shall be inserted, namely :-
"Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b)";
(iv) after clause(b), Explanation II shall be omitted;
(b) after sub-section(1A), the following sub- section shall be inserted, namely:- "(1B) The Central Government may, by notification in the Official Gazette, specify, for the purposes of sub-section(1), such monthly wages in relation to an employee as it may consider necessary.";
(c) after sub-section(2), the following sub-section shall be inserted, namely:-
"(2A) The employee shall be reimbursed the actual medical expenditure incurred by him for treatment of injuries caused during the course orf employment.";
(d) in sub-section(4),-
(A) for the words "two thousand and five hundred rupees", the words "not less than five thousand rupees" shall be substituted;
(B) the following proviso shall be inserted, namely:-
"Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount specified in this sub- section."
7. It is apparent that after sub-Section(1A), the sub-Sections (1B) and (2A) have been inserted by the Employees Compensation (Amendment) Act, 2009. By the said notification dated 31.05.2010, the Central Government has notified the monthly wage for purpose of sub- Section 1 of Section (4) of the Employees Compensation Act, 1923. Page 4 of 6
8. This court finds that there had been no amendment either in sub-Section 1 of Section 4 nor in sub-Section 2 of Section 4 of the Employees Compensation Act, 1923, save and except what has been amended by the Employees Compensation (Amendment) Act, 2009.
Section 4(1)(a) provides as under :
"(a) where death results from the an amount equal to [fifty percent] of injury the monthly wages of the deceased [employee] multiplied by the relevant factor;
or an amount of [one lakh and twenty thousand rupees], whichever is more."
9. Similarly, Section 4(1)(b) provides the method of calculating the compensation for permanent total disablement resulted from the injury. Section 4(1)(c) provides the method of assessing the compensation where the employee suffered permanent partial disablement from the injury. Section 4 (1)(d) provides for compensation for temporary disablement, total or partial, resulted from the injury.
10. It is to be noted that Section 4(1)(A) provides special arrangement in respect of an accident occurred outside India. For purpose of reference, Section (1A) and (1B) of Section 4 are reproduced hereunder:
(1A) Notwithstanding anything contained in sub-
section (1), while fixing the amount of compensation payable to [an employee] is respect of an accident occurred outside India, the Commissioner shall take into account the amount of compensation, if any, awarded to such [employee] in accordance with the law of the country in which the accident occurred and shall reduce the amount fixed by him by the amount of compensation awarded to the [employee] in accordance with the law of that country.
(1B) The Central Government may, by notification in the Official Gazette, specify, for the purposes of sub-section (1), such monthly wages in relation to an employee as it may considered necessary."Page 5 of 6
Sub-Section (1)(A) turns out to be a non-obstante' clause by curving out the special arrangement, if the accident takes place outside India. Thus, sub-Section(1)(A) has to be read separately without any relation to the method of calculating compensation as provided under sub-section 1 of Section 4 of the Employee's Compensation Act, 1923.
11. Thus, what emerges is that the reference as "sub-Section 1 of the said Section" as referred in the said notification dated 31.05.2010 does not apply to the whole Section 4 or sub-Section 1 is not to restrict the income maximum to Rs.8000/-. The Central Government has determined that under sub-section(1)(B), of Section 4 of the Employees Compensation Act for purpose of sub-Section 1, the monthly wage in relation to an employee will be Rs.8000/- per month. Since Section (1A) is non-obstante' clause, and Section (1)(B) has been incorporated just below Section (1)(A), these are deployed to avert conflict with the substantive provision made under sub-Section 1 of Section 4 of the Employees Compensation Act. This court is, therefore, of the view that the power so conferred on the Central Government under sub- Section(1)(B) of Section 4 of the Employee's Compensation Act is in relation to sub-Section (1)(A) of the Employees Compensation Act, 1923. Thus, the income that has been determined in exercise of the power under sub-Section (1)(B) of Section 4 of the Employees Compensation Act is only in relation to the compensation to be awarded under sub- Section (1)(A) of Section 4 of the Employees Compensation Act, 1923.
12. This court has no hesitation to hold that when the Employees Compensation (Amendment) Act, 2009 was legislated, if the intention was to delete the mode of the extant determination, the provisions under the other sub-Sections, as referred above, would have Page 6 of 6 been omitted and Rs.8000/- would have inserted by way of substitution. But those sub-Sections referred above, remain un-amended and hold their previous position in the matter of adjudication of compensation for disablement permanent or total, permanent partial or temporary total or partial. Thus, the plea as raised that the monthly Rs.8,000/- shall apply generally in respect of wages to all the provisions under Section 4 of the Employees Compensation Act, 1923 cannot be accepted for the above reasons.
13. Thus, this court holds that sub-Section (1)(B) of Section 4 of the Employees Compensation Act, 1923 has been legislated entirely in relation to sub-Section (1)(A) of Section 4 of the Employees Compensation Act. The income of the deceased employee namely Babul Debnath cannot be reduced to Rs.8000/- from Rs.15,000/- in terms of the notification dated 31.05.2010. The income of the deceased employee has been correctly computed under Section 4(1)(a) of the Employees Compensation Act, 1928.
Consequently, this review petition being devoid of merit stands dismissed. However, in the context, there shall be no costs.
JUDGE Sabyasachi B