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Jammu & Kashmir High Court

Gurmeet Kour And Ors. vs Oriental Insurance Company Ltd. And ... on 17 November, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

        HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CIMA No.14/2008
                                                            Date of decision: 17.11.2017
  Gurmeet Kour & ors.                        Vs.                   O.I.C. Ltd. & anr.
Coram:
          Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Appellant(s) :      Mr. N. Dubey, Advocate.
For Respondent (s) :    Mr. Vishnu Gupta, Advocate.

i)    Whether to be reported in
      Digest/Journal                      :     Yes/No.
ii)   Whether approved for reporting
      in Press/Media                      :     Yes/No.

01. This Civil 1st Miscellaneous Appeal under Section 31 of the Workmen's Compensation Act has been filed by the claimants against the award dated 16.10.2007 passed by the Commissioner (under the Workmen's Compensation Act), Jammu (hereinafter to be referred to as 'Commissioner') for enhancement of the award.

02. In the memo of appeal, it has been stated that the appellants are legal heirs/representatives of Late S. Mohinder Singh who on account of being skilled professional driver was employed by respondent No.2 to drive truck bearing No.JK02G-4185 and on 01.11.2005 during course of his employment with respondent No.2 met with an accident at Nasery Batote, National Highway from Srinagar to Jammu and the deceased Mohinder Singh died on account of injuries suffered during the course of his employment. The appellants as on above accounts preferred an application under Section 4/22 of the Workmen's Compensation Act before the Commissioner on 08.09.2006 which is registered as File No. Death/08/WC/Act/06 by the said authority. Respondents were put to notice by the Commissioner and respondent No.2 has filed objections and admitted the employment of deceased Mohinder Singh as well as Rs.4500/-

wages per month including trip and other benefits. It has been further stated that the evidence was lead by the appellants and appellant No.1 in her statement specifically affirmed that the deceased getting Rs.4500/- per month in addition to trip and halt age charge and the total monthly income was Rs.6000 to Rs.7000 out of which deceased used to pay Rs.4500/- to her i.e. appellant No.1. In view thereof, claim petition was decided by the Commissioner vide his order dated 16.10.2007 and while passing the aforesaid order, the Commissioner committed a substantial error of law by holding that the income of the deceased was only Rs.3000/- as against the admitted income of Rs.4500/- per month by the respondents and duly proved by appellant No.1 before the Trial Court.

03. It has also been stated that while passing the impugned award, the Commissioner committed another error of law by assessing the wages of the deceased below the monthly wages as prescribed under the Minimum Wages Act wherein the Minimum monthly wages of a skilled workmen as in the case of the deceased is stipulated to Rs.4410/- whereas the monthly wages of the deceased has been held to be Rs.3000/- only by the Commissioner in a most arbitrary manner when there is no evidence is rebuttal in appellant No.1 which has been produced by respondent No.1 to contradict her stand. It is averred in the appeal that the Commissioner by overlooking and over-sitting the admission of respondent No.2 and implied admission of respondent No.1 made in their objections has committed a grave error of law while passing the impugned order dated 16.10.2007. The aforesaid Award is perverse as the same is totally opposed to material on record and as such, the same be set aside by the Hon'ble Court as the material an record proves the income of the deceased at least Rs.4500/- which also stood admitted by respondents in their objections filed before the Court Below. The appellant has refused to abide by the impugned award and has not withdrawn the amount of award deposited by respondent with Commissioner. It is further averred that the appeal preferred by the CIMA No.14/2008 Page 2 of 7 appellant is within limitation period of 60 days as is stipulated in Clause (2) of Section 30 of Commissioner when the time taken by the Commission in preparing copy is taken into account as the presiding Officer of the Commissioner was on leave on that account 26 days taken were by the Trial Court in furnishing Copy.

04. The instant appeal has been filed on the following substantial questions of law:-

(i) Whether it is open in Law to Commissioner Workmen's Compensation Act, Jammu to go against the admitted monthly income of the deceased Workmen as admitted by the Respondents in their objections and pass award at his whims and caprices by reducing the monthly income without adopting Rational Yard Stick.

(ii) Whether it is open to Commissioner Workmen's Compensation Act, Jammu to access the income of the deceased Workmen's below the Minimum wages as stipulated under J&K Minimum wages Act.

05. I have considered the arguments of learned counsel for the parties and also gone through the Award of the Court below.

06. It is apt to reproduce the concluding para of the Award of the Court below is reproduced hereunder:-

"From the perusal of the file, record attached, in light of the recorded statement of the petitioner and in the light of the arguments put forth by the learned counsels for the parties. I have been able to make the following observations about the instant case.

1/ That the deceased met with an accident during & in the course of employment with respondent No.2 as Driver. This has also been admitted by the respondent No.2 in the form of objections filed.

2/ That deceased falls under the definition of workman as prescribed under Workmens Compensation Act, 1923. 3/ Petitioner mentioned wages of the deceased was Rs.4500/- per month. No document could be produced by the CIMA No.14/2008 Page 3 of 7 petitioner regarding payment of wages to the deceased. So in view of the lacking in any documentary evidences wages are fixed at Rs.3000/- as wages generally drawn by the Drivers. Regarding age petitioner enclosed the School leaving certificate of the deceased which is mentioned at 18.10.1961 so, the age is fixed at 44 years old at the time of accident.

In view of the observations made above, an award of rupees 2,58,780=00 (Rupees Two lacs fifty eight thousand Seven hundred eighty only) under Section 4 read with Schedule iv of the Workmen's Compensation Act, 1923 alongwith interest @ 6% per annum from the date of accident till the date of actual deposit of the amount is passed in favour of the petitioners and against the respondent No.2, since the vehicle involved in the accident was insured with the respondent No.1 is liable to indemnify the respondent No.2. Accordingly, the respondent No.1 is directed to deposit the awarded amount of compensation with this Court within 30 days. Otherwise interest @ 6% per annum shall be imposed on the awarded amount of compensation from the date of announcement of this order till the actual deposit of the awarded amount with this Court. So far as the interest on the awarded amount is concerned that will be paid by the respondent No.2 within 30 days from the date of this order. No order as to cost is passed. File after due completion be consigned to records.'

07. After going through the impugned award and memo of appeal, the only question for determination is as to whether the provisions of Minimum Wages Act are applicable to this case under Workmen Compensation Act or not. It is admitted fact that deceased was driver at the time of accident and his age has been taken by court below as 44 years at time of accident. As held there was no evidence of definite pay of deceased. So court below has taken it as Rs.3000/- pm.

08. The argument of counsel for appellant that wages as defined in Minimum Wages Act were required to taken by ALC while granting compensation, is at all not tenable. Because both Acts are different, deal with different field. Workmen Compensation Act is complete code, which separately defines wages in terms of section 2 (m), "wages" includes any privilege or benefit CIMA No.14/2008 Page 4 of 7 which is capable of being estimated in money other than a traveling allowance or the value of any traveling 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.

09. This Act also provides as to how compensation is calculated in case of death or bodily injuries sustained by workmen during course employment. The scheme of the Workmen's Compensation Act is not to compensate the worker in lieu of wages. The general principle is that a worker who suffers an injury in the course of his employment, which results in a disablement, should be entitled to compensation and in the case of a fatal injury his dependants should be compensated. Under the Workmen's Compensation Act it is the employer who is responsible to pay compensation . The meaning of compensation in this Act is limited to compensation granted under the Act for employment injuries sustained during the course of work. As per Section 3 of the Act, the employer is liable to pay compensation if the worker is injured by accident that: arises out of (i.e. while engaged in work), and; in the course of his employment (i.e. during work hours),and; such an injury results in disablement of the worker. If three conditions are met, the employer of an establishment covered by the Act, is bound to pay compensation. Under the Act, there are four types of eventualities, which can be compensated, namely: 1. Death 2. Permanent Total Disablement:

disablement that incapacitates a worker from all kinds of work. 3. Permanent partial disablement: disablement that reduces the capacity to work in any employment similar to that the worker was performing at the time of the accident. 4. Temporary disablement: This may be total or partial disablement, which is of temporary nature, which reduces the earning capacity of the worker in any similar employment for the period of disablement. Total disability (i.e. 100% disability) has a different meaning under the Workmen's Compensation Act as compared to its meaning in CIMA No.14/2008 Page 5 of 7 normal language. According to the Act, disability is determined with reference to the work that the worker was doing immediately before accident took place and if the resulting injury leaves him incapable of performing any work of a similar nature then his disability is considered as 100%.

10. In this Act, if during course of proceeding of compensation, it is proved that workmen was earning more than Rs.4000/- pm even then maximum limit has been taken as Rs.4000/- pm has to be taken. Even there is maximum compensation in fatal case has been fixed.

11. In Minimum wages Act wages has been defined separately in terms of section 2 (h) "wages" means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, [and includes house rent allowance], but does not include- (i) the value of- (a) any house-accommodation, supply of light, water, medical attendance, or (b) any other amenity or any service excluded by general or special order of the appropriate Government; (ii) any contribution paid by the employer to any Pension Fund or Provident Fund or under any scheme of social insurance; (iii) any travelling allowance or the value of any travelling concession; (iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (v) any gratuity payable on discharge; The objects of Minimum Wages Act 1948 is that minimum wages that must be paid to skilled and unskilled labors. The act is legally non-binding, but statutory. Payment of wages below the minimum wage rate amounts to forced labour.

12. In this way, both Acts deal in different sphere of law; the provisions of one Act cannot be considered in another Act. However, both are special laws having different applicability.

13. In view of above discussion, finding no merit in this appeal, the same is dismissed.

(Sanjay Kumar Gupta) Judge Jammu 17.11.2017 Ram Murti CIMA No.14/2008 Page 7 of 7