Orissa High Court
Oriental Insurance Co. Ltd. vs Shyamsundar Rohidas And Ors. on 6 December, 1999
Equivalent citations: 2(2000)ACC599
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. The,insurer has filed this appeal under Section 30 of the Workmen's Compensation Act (hereinafter referred to as the "Act").
2. Claimants-respondents 1 and 2 are the parents of the deceased. The deceased while working as a Coolie in the truck belonging to present respondent No. 3 met with an accident on 21.5.1998 and died subsequently. In the claim application filed by the parents they claimed that they were dependent upon the deceased who was receiving a sum of Rs. 1,200/- per month as wages and Rs. 25/- per day towards fooding allowance. It was further claimed that the deceased was aged 19 years at the time of the accident.
3. The owner in his written statement admitted about the employment, accidental death of the deceased and the wages, but disputed the age of the deceased and the quantum of compensation claimed. He also took the plea that the amount, if any should be paid by the Insurance Company.
4. The insurer while generally denying the allegations made in the claim application called upon the claimants to give strict proof of the same.
5. The Commissioner for Workmen's Compensation (in short, the "Commissioner") on consideration of the materials on record found that the deceased was a workman under present respondent No. 3 and had sustained injuries resulting in his death in an accident arising out of and in course of his employment. It was further found relying upon the post-mortem report that the deceased was 17 years and was getting Rs. 1,200/- as monthly wages alongwith Rs. 25/- per day as fooding allowance. Accordingly, the Commissioner directed that the Insurance Company is liable to pay a sum of Rs. 2,19,589/-.
6. In this appeal, the Counsel appearing for the Insurance Company has raised three contentions. It is first contended that in the absence of any finding or evidence that the claimants were wholly depending upon the earnings of the deceased, the compensation claimed by them should not have been granted.
7. It appears from paragraph-4 of the claim application that the claimants had stated that they were depending upon the income of the deceased. Even though, no specific issue had been framed, the evidence on the side of the claimants indicates that according to them the deceased was giving his earnings to the parents for the purpose of their maintenance. The deceased was working as a Coolie. Having regard to the economical status of the parents and the age, of the claimants, it can be concluded that the claimants were depending upon the deceased. The evidence adduced on the side of the claimants on this aspect has not been challenged. In the written statement of the Insurance Company, there is no specific denial and it is only stated that such allegations relating to dependency of the parents are not within the knowledge of the insurer and hence denied. Such plea cannot be taken to be a specific denial. Moreover, as already stated, the materials on record indicate that the claimants were the dependents. For the aforesaid reason, the first contention cannot be accepted.
8. The second contention of the learned Counsel appearing for the appellant relates to the interpretation of the expression "wages". It is contended that the daily allowance of Rs. 25/- (Bhatta) towards food cannot be considered to be a part of the wages for the purpose assessing compensation. He has placed reliance upon the definition of the expression "wages" as contained in Section 2(1)(m) of the Act, which is extracted hereunder-
2. Definitions.-
(1) In this Act, unless there is anything repugnant in the subject or context-
xxx xxx xxx xxx xxx xxx
(m) 'wages' includes any privilege or benefit which is capable of being estimated in money, other than a travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment.
It is contended that the amount payable towards fooding allowance may be taken to be a travelling allowance or a sum paid to the workman to cover any special expenses entailed on him by the nature of his employment. As such, such amount should not be included within the meaning of expression "wages". This contention cannot be accepted in view of this Court reported in 1994 Lab. IC 2655, Divisional Manager, Oriental Insurance Co. Ltd. v. Giriwal Transport Corporation and Ors. where it has been held that fooding allowance can be considered to be a part of the wages.
9. In this connection, the learned Counsel for the appellant submitted that such daily allowance of Rs. 25/- towards fooding must have been given only when the deceased was travelling in the truck and it could not have been assumed that such allowance must have been paid for the entire month. In the absence of any specific challenge on this aspect, it cannot be assumed that the truck was remaining idle on some days. The conclusion on this aspect being essentially a finding of fact is not available to be challenged in this appeal under Section 30 of the Act.
10. The third contention of the appellant relates to the question of age of the deceased. It is contended that the claimants themselves had claimed that the age of the deceased was 19, whereas the Commissioner has considered the age to be 17 on the basis of the post-mortem report. Though the Commissioner had found the age to be 17 years, it appears that while calculating the amount payable, he has taken 19 to be the relevant age and applied the factor of 225.22 accordingly. Thus, in the ultimate conclusion, there is no error.
11. For the aforesaid reasons, I do not find any merit in this appeal, which is accordingly dismissed. There will be no order as to costs.