Orissa High Court
Gopal Singh vs Nilamani Pradhan on 8 January, 1987
Equivalent citations: II(1987)ACC58
JUDGMENT S.C. Mohapatra, J.
1. Workman is the appellant in this appeal under Section 30(1) of the Workmen's Compensation Act, 1923 (hereinafter referred to as 'the Act').
2. Workman was a driver. On 4-1-1977 while he was driving the vehicle of the owner under hit employment he sustained injuries which resulted in the amputation of his left hand from the wrist. Being unsuccessful with the issue of notice to the employer to get the compensation, he filed the application before the Commissioner under the Act for compensation indicating that his monthly wages was Rs. 500/- and he was getting Rs. 20/- per day towards allowance on days of his duty. The Commissioner issued notice to the owner who did not appear. On the basis of the materials on record, the Commissioner found that the monthly wages of the appellant was Rs. 500/- and the workman was entitled to compensation at the rate of 100%. Accordingly, he calculated the compensation at Rs. 21,000/-.
3. The appellant is aggrieved on account of Rs. 20/- per day not being considered to be part of his wages as well as computation of the compensation at Rs. 21,000/- even on the wages of Rs. 500/- per month.
4. This appeal was filed in the year 1982. In 1986 only the appellant filed an application to add the insurer as a party. I issued notice to the insurer to show cause why he should not be made a party on the basis of which Mr. A.K. Mohanty has appeared in this case on behalf of the insurer. Under the Act the liability is to be fixed on the employer. The vicarious liability as provided under some provisions in the Act do not include the insurer. However, the liability of the insurer has been created by the judicial precedent. Liability of the insurer would depend upon the provisions under the Motor Vehicles Act and not beyond. If I make the insurer a party at this stage, the matter is bound to be remitted back to give of opportunity to contest the claim. Therefore, by a separate order I have already rejected the application for making the insurer a party at the appellate stage.
5. Mr B.P. Ray, the learned Counsel for the appellant, strongly relied upon the definition "wages" in the Act and submitted that Rs. 20/- received as a privilege or benefit is to be included within the definition "wages". The definition excludes travelling allowance or a sum paid to a workman to cover any special expenses entailed by him by the nature of his employment. The very fact that Rs. 20/- per day is paid to the applicant on the day he performs his duty towards "Bhatia" or food allowance itself indicates that the amount is paid to cover any special expenses incurred by the workman by the nature of his employment. Thus, this amount would not be included in wages.
6. Mr. B P. Ray, the learned Counsel for the appellant, thereafter submitted that even assuming Rs. 500/- to be the monthly wages 100% compensation would be Rs. 29,400/- and not Rs. 21,000/-, as is provided in Schedule IV, Column 3 of the Act. That this would be a total disablement cannot be disputed in view of the decision reported in Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. AIR 1976 S.C. 222, in which case amputation of hand above the elbow joint of a carpenter was held to entitle him to receive 100% compensation since without that part of the limb he cannot work as a carpenter. When the left wrist of a driver is amputed, the applicant cannot work as a driver and therefore this, would amount to a total disablement as has been rightly held by the Commissioner under the Act.
In view of the rate prescribed under the Act there is no escape from the conclusion that the amount of compensation would be Rs. 29,400/-.
7. Penalty and interest are special provisions under Section 4A of the Act. The same ought not to have been considered with the main proceeding. Penalty of Rs. 10,500/-has been awarded at the rate of 50% of the compensation. No appeal has been preferred against the said quantification, which has become final. No reason has been indicated in the order as to why 50% penalty shall be imposed which is the maximum under Section 4A of the Act. As has been held in the case reported in Hindustan Steel Ltd. v. The State of Orissa AIR 1969 S.C. 201 the rate of penalty would depend upon the facts and circumstances of each case. Here no rate having been prescribed by the statute. I am not inclined to award penalty at the rate of 50% on the balance amount enhanced. However, no appeal having been preferred, the penalty is confined to Rs. 10,500/-. The statutory interest is 6%. Since the amount is enhanced the statutory interest at that rate shall be available to the applicant.
8. In the result, the appeal is allowed in part. There shall be no order as to costs.