Kerala High Court
Sainulabdheen vs Eugine Antony on 23 August, 2016
Author: A.Muhamed Mustaque
Bench: P.N.Ravindran, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938
MFA(WCC).No. 41 of 2016 ()
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WCC 51/2003 OF COMMISSIONER FOR WORKMEN'S COMPENSATION(DEPUTY
LABOUR COMMISSIONER), KOTTAYAM.
......
APPELLANT/APPLICANT NO.1:
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SAINULABDHEEN, S/O.MUHAMMEDKUNJU,
AGED 55 YEARS, THAHA MANZIL,
KANGAZHA PATHANADU,
CHANGANASSERRY TALUK,
KOTTAYAM DISTRICT.
BY ADVS.SRI.P.M.JOSHI
SMT.SIJI K.PAUL
SMT.ELIZABETH KOSHY
RESPONDENT(S)/OPPOSITE PARTIES & LEGAL HEIRS OF 2ND APPLICANT:
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1. EUGINE ANTONY, S/O.ANTONY
AGED ABOUT 45 YEARS,
CHACKENKULAM HOUSE,PALA POST, PALA,
KOTTAYAM DISTRICT-686 575.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
KOTTAYAM, KOTTAYAM-1.
3. MUHAMMED THAJU, S/O.SAINULABDEEN,
AGED 21 YEARS, THAHA MANZIL,
KANGAZHA PATHANADU,
CHANGANASSERRY TALUK,
KOTTAYAM DISTRICT - 686 101.
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MFA(WCC).No. 41 of 2016 ()
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4. THARIFA, D/O.SAINULABDEEN,
AGED 20 YEARS, THAHA MANZIL,
KANGAZHA PATHANADU,
CHANGANASSERRY TALUK,
KOTTAYAM DISTRICT 686 101.
R1 BY ADVS. SRI.M.D.SASIKUMARAN
SRI.K.S.HARIHARAPUTHRAN
SRI.GEORGE MATHEW
SRI.SUNIL KUMAR A.G
SRI.DIPU JAMES
R2 BY ADVS. SRI.A.A.ZIYAD RAHMAN
SRI.KKM.SHERIF
SRI.LAL K.JOSEPH
R3 & R4 BY ADV.SRI.K.J.GLADIS
BY ADV.SRI.M.A.GEORGE
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 23-08-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ.
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M.F.A.(WCC).No.41 of 2016
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Dated this the 23rd day of August, 2016
J U D G M E N T
A.Muhamed Mustaque, J.
This appeal is filed against the order passed by the Court of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kottayam in W.C.C.No.51 of 2003 being dissatisfied by the quantum of compensation awarded to the appellant. The appellant is the first applicant therein. He along with his wife approached the Court of the Commissioner for Workmen's Compensation claiming compensation on account of the death of his son, Thahamon in an accident. The wife passed away on 24.12.2013. The deceased was employed as a driver under the first respondent/first opposite party. The award in the instant case was issued on November 5, 2012. The appellant claimed that his deceased son was drawing a montly income of 4,500/-. The accident occurred on 9.9.2001. The Commissioner M.F.A.(WCC).No.41 of 2016 -:2:- reckoned monthly salary at Rs.3,500/- and concluded compensation as follows:
Rs.3500 x 50 x 226.38 = Rs.3,96,165/-
100 The only dispute in this appeal is regarding calculation of the monthly salary of the deceased.
3. Heard learned counsel for the appellant and learned counsel for the Insurance Company. The policy indemnifying the first opposite party has been admitted by the insurance company.
4. The calculation of monthly income often results in estimation. It is seen that in many cases where the parties are unable to produce evidence, the Commissioner or Tribunal estimates monthly salary on different yardsticks. It is true there is no hard and fast rule in making such assessment. In the absence of any documentary evidence, the court can rely upon the oral evidence. The Commissioner or the Court has to assess whether such claim of salary of the deceased is exorbitant or exaggerated, considering the nature of employment. The nature of employment is the predominant consideration in assessing the M.F.A.(WCC).No.41 of 2016 -:3:- monthly salary of the deceased in relation to the employment. In ordinary circumstances, the claim of monthly salary of a driver at the rate of Rs.4,500/- cannot be termed as exorbitant or exaggerated. There is no dispute that he was employed as a driver. In such circumstances, we find there is no reason to discard the oral testimony of AWI and AW2 that the deceased was drawing a monthly salary of Rs.4,500/-. However, in the light of explanation 2 to 4(1)(a) of the Workmen's Compensation Act, we feel the monthly salary has to be reckoned at Rs.4,000/-.
Accordingly, we calculate the compensation as follows:
Rs.4000 x 50/100 x 226.38 = Rs.4,52,760/-.
The court below has awarded Rs.3,96,165/- as compensation under Section 4(1)(a) of the Workmen's Compensation Act. The court below has also awarded Rs.2,500/- for funeral expenses. It is also admitted at the Bar that the deposited amount before the Court of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Kottayam could be withdrawn only in the year 2015. We award to the appellant an additional compensation of Rs.56,595/- [Rs.4,52,760 - Rs.3,96,165]. The appellant would be entitled M.F.A.(WCC).No.41 of 2016 -:4:- for additional compensation of Rs.56,595/- along with 12% interest from 9.9.2001 till the date of deposit excluding the period of 1214 days, the delay involved in filing this appeal.
We accordingly allow the appeal. The insurance company shall, after calculating interest as directed above, deposit the compensation amount along with interest within one month from the date of receipt of a copy of this judgment. No costs.
Sd/-
P.N.RAVINDRAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE
ms \\True copy//
P.S to Judge