Gauhati High Court
New India Assurance Company Ltd vs Shri Majnit Pathak & Ors on 25 February, 2010
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram & Arunachal Pradesh)
MFA No. 65 of 2001
New India Assurance Company Ltd.,
having its registered office at
New India Assurance Building,
87, Mahatma Gandhi Road,
Bombay-400001.
......Appellant.
-Versus-
1. Shri Majnit Pathak,
S/O Lt. Ganesh Pathak,
Village-Metua Kuchi (Santinagar),
Dist.-Barpeta, Assam.
2. Shri Dalim Pathak,
S/O Lt. Sadananda Pathak,
Village-Bhagerpar,
Dist.-Barpeta, Assam.
......Respondents.
Advocate(s) for the Appellant : Mr. S. Dutta,
Ms. M. Choudhury.
Advocate(s) for the Respondents : Mr. D.K. Saikia,
Ms. R. Begum.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 25.02.2010
Date of Judgment & Order : 25.02.2010
2
JUDGMENT AND ORDER (ORAL)
This appeal by the insurance company is directed against the order dated 28.05.2001 passed by the learned Commissioner, Workmen's Compensation, Kamrup, Guwahati in WC Case No.212/2000 awarding a sum of Rs.1,12,309/- as compensation for the injuries sustained by the respondent workman in an accident occurred arising out of and in course of his employment and directing the appellant insurance company to satisfy the award, in view of the contract of insurance between the employer and the insurance company, with interest @9% per annum from the date of the accident i.e. 18.08.2000 till the date of payment.
2. An application under the provisions of the Workmen's Compensation Act, 1923 (in short the Act) was filed by the respondent workman before the learned Commissioner, Workmen's Compensation, Kamrup at Guwahati claiming compensation alleging that on 18.08.2000 while he was proceeding in the vehicle bearing Registration No.AS-15/3495 (Bus), belonging to the respondent No.2, from Barpeta towards Guwahati, as handyman, the said vehicle met with an accident at village-Kuturia under Ghagrapara police station due to the brake failure and as a result of which he received grievous injuries on his person as he lost 4 teeth apart from other grievous injuries on his right hand as well as on the 3 right side of the chest and cheek. The said claim application had been registered as W.C. Case No.212/2000.
3. The employer respondent, who was the opposite party No.1 in the said proceeding entered appearance and filed the written objection admitting the employment of the respondent workman as handyman of the bus and also the accident as well as the injuries sustained by him in such accident. It has however been stated in the said written statement that the monthly wage of the workman was Rs.300/- and he was also paid Rs.100/- as daily allowances. Issuance of a policy of insurance by the appellant covering the risk of the owner of the said vehicle at the relevant point of time had also been pleaded. The appellant, who was the opposite party No.2 in the said proceeding also contested the claim of the respondent workman by filing written statement denying all the contentions of the workman in the claim application.
4. The respondent workman in support of the claim has examined himself as the sole witness and also proved 14 documents which includes the registration certificate of the vehicle, the permit issued by the competent authority in respect of the said vehicle, the policy of insurance issued by the appellant insurance company, the advice slips issued by the attending doctor, the medical certificate issued by the Sub-Division Medical and Health Officer of Barpeta Civil Hospital, where the workman was treated 4 (Ext.-13) and the certificate issued by the employer certifying the monthly wages of the respondent workman as Rs.6,300/- inclusive of the daily allowances (Ext.-14). The appellant as well as the employer though filed their written statements, they did not adduce any evidence. The witness examined by the respondent workman, however, was cross-examined by the appellant insurance company.
5. The learned Commissioner, Workmen's Compensation upon appreciation of the evidences on records has passed the award dated 28.05.2001 awarding the compensation of Rs.1,12,309/- by taking the loss of earning capacity of the respondent workman as 45% and his monthly wages at Rs.2,000/-. The learned Commissioner has also awarded the interest @9% per annum w.e.f. 18.08.2000. Hence the present appeal.
6. Though the appeal was admitted vide order dated 12.09.2001, since no substantial questions of law were framed, though required under Section 30 of the Act, this court vide order dated 24.02.2010 formulated the following substantial questions of law, on which the appeal has been heard:-
1. Whether the "wages" within the meaning of Section 2(1)(m) of W.C. Act, includes the daily allowance paid/payable to the workman?
2. Whether the learned Commissioner is justified in assessing the loss of earning capacity of the workman @45%?5
3. Whether the interest under Section 4A(3) of W.C. Act is payable from the date of adjudication or from the date of accident/date of filing the application?
7. I have heard Mr. S. Dutta, the learned counsel for the appellant as well as Mr. D.K. Saikia, the learned counsel appearing for the respondent workman.
8. Mr. Dutta, the learned counsel for the appellant referring to the definition of "wages" in Section 2(1)(m) of the Act has submitted that the daily allowance paid/payable to the workman cannot form part of the wages and as such the learned Commissioner was not right to take the monthly wages of the workman at Rs.2,000/- when the employer in the written statement filed has specifically stated that the monthly wage of the workman was Rs.300/- and he was paid Rs.100/- per day as daily allowances. It has further been submitted that since admittedly the injuries sustained by the respondent workman is a non-schedule injury, the learned Commissioner cannot assess the loss of earning capacity of the workman because of the injuries sustained by him in the accident without there being any assessment by the qualified medical practitioner in that regard, as required under Section 4(1)(c)(ii) of the Act, as has been done in the instant case.
Referring to the deposition of the lone witness examined by the respondent workman as well as the medical certificate (Ext.-13) it 6 has been submitted that neither the workman in his deposition nor the attending doctor in the Ext.-13 assess the loss of earning capacity and the learned Commissioner has recorded the finding that the loss of earning capacity of the workman was 45% without there being any evidence on record. Relating to the award of interest under Section 4A(3) of the Act it has further been submitted by Mr. Dutta that such interest can be awarded from a date expiring 30 days of the date of adjudication and not from the date of the accident, in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Mubasir Ahmed & anr. reported in (2007)2 SCC 349.
9. Mr. Saikia, the learned counsel for the respondent workman, on the other hand, supporting the order passed by the learned Commissioner, Workmen's Compensation has submitted that though in view of the Division Bench judgment of this court in Oriental Insurance Co. Ltd. Vs. Lakhimai Das & anr. reported in 2006(3) GLT 870, the daily allowances paid or payable to the workman cannot constitute the wages within the meaning of Section 2(1)(m) of the Act, it is evident from the salary certificate (Ext.-14) that the workman was paid Rs.6,300/- as wages inclusive of the daily allowance of Rs.100/- and by deducting the daily allowance, the monthly wage which was paid to the workman was Rs.3,300/- and as such the learned Commissioner did not commit any illegality in taking the monthly wage of the workman at 7 Rs.2,000/-. Mr. Saikia, however, submits that in view of the Supreme Court judgment in Mubasir Ahmed (supra), the interest is payable from the date expiring 30 days from the date of adjudication only.
10. Relating to the second substantial question of law, it has been submitted by Mr. Saikia that keeping in view the nature of injuries sustained i.e. loss of 4 teeth by the respondent workman, the learned Commissioner has rightly assess the loss of earning capacity at 45%. Mr. Saikia, therefore, submits that except for the award of interest from the date of accident, the amount of compensation awarded by the learned Commissioner needs no interference in the appeal.
11. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record as well as order dated 28.05.2001 awarding compensation by the learned Commissioner, Workmen's Compensation.
12. The learned Commissioner has taken the monthly wages of the respondent workman at Rs.2,000/- for the purpose of working out the compensation payable under the Act. The workman in support of the claim for compensation has proved the salary certificate issued by the employer, respondent No.2, as Ext.-14. The said document has been admitted in evidence without any 8 objection from the appellant insurance company. The workman, who examined himself as witness and proved the document (Ext.-
14) has, in fact, not been cross-examined by the insurance company in that respect. It appears from Ext.-14 that the workman was paid Rs.6,300/- as monthly wages inclusive of the daily allowances. The respondent No.2 employer in the written statement has stated that the workman was paid Rs.100/- as daily allowances. Going by the Ext.-14, the salary certificate, it is, therefore, evident that the respondent workman was paid Rs.3,300/- towards the wages and Rs.100/- as daily allowances. The averments made by the respondent No.2 employer in the written statement that the workman was paid Rs.300/- per month in view of Ext.-14 cannot be accepted.
13. The accident having been occurred on 18.08.2000 the provisions of law as stood on the date of accident shall apply. Prior to the Workmen's Compensation (Amendment) Act, 2000, which came into effect from 08.12.2000, the monthly wages of a workman was required to be taken as Rs.2,000/-, if such monthly wages exceeds Rs.2,000/-, in view of Explanation-II to Section 4(1) of the Act. Since the accident occurred on 18.08.2000 prior to coming into force the Workmen's Compensation (Amendment) Act, 2000, the learned Commissioner has rightly taken the monthly wages of the workman as Rs.2,000/-, for the purpose of calculating the amount of compensation awardable under the provisions of the 9 Act, though the daily allowances payable does not come within the definition of "wages" under Section 2(1)(m) of the Act as held by a Division Bench of this Court in Lakhimai Das's case. The Apex Court in Mubasir Ahmed (supra) has held that the interest under Section 4A(3) is payable if there is default in paying the compensation due under the Act within 1(one) month from the date it fell due. It has further been held that in the absence of any indication as to when such compensation becomes due, it has to be taken as the date of adjudication paid.
14. In the instant case, the learned Commissioner has awarded the interest @9% per annum from the date of accident i.e. 18.08.2000 though such award of interest ought to have been with effect from the date expiring 30 days from the date of adjudication i.e. the date of the order passed, there being no indication as to when the compensation becomes due. Under Section 4A(3) of the Act, the learned Commissioner is to award compensation @12% per annum and not 9% per annum as awarded.
15. This leads to the question as to whether the learned Commissioner was justified in assessing the loss of earning capacity at 45% in the absence of any evidences on record to that effect.
16. The respondent workman though examined himself and proved the medical certificate (Ext.-13), nothing has been said 10 relating to his loss of earning capacity. The doctor who issued the medical certificate (Ext.-13) also did not certify the loss of earning capacity of the workman concerned. Section 4(1)(c)(ii) of the Act authorizes the Commissioner, Workmen's Compensation to award compensation in case of an injury not specified in Schedule-I, which shall be equivalent to such percentage of compensation in case of the permanent total disablement as is proportionate to the loss of earning capacity as assessed by the qualified medical practitioner, permanently caused by the injury. In the absence of any proof relating to the loss of earning capacity, the learned Commissioner was not justified in assessing the loss of earning capacity of the respondent workman at 45%.
17. In view of the above, the award dated 28.05.2001 passed by the learned Commissioner, Workmen's Compensation is set aside. The matter is remitted to the learned Commissioner Workmen's Compensation for giving fresh decision on the question of loss of earning capacity by the respondent workman, for which the parties may be allowed to adduce additional evidence. The learned Commissioner, thereafter, shall assess the compensation payable under the provisions of the Act taking the monthly wage of the workman as Rs.2,000/-. The Commissioner shall also pass necessary order relating to the payment of interest under Section 4A(3) of the Act, keeping in view the findings recorded above. The 11 parties are directed to appear before the learned Commissioner on 05.04.2010.
18. At this stage, it has been submitted by the learned counsel for the parties that pursuant to the order dated 12.09.2001 50% of the amount awarded by the learned Commissioner, which was deposited by the insurance company, was directed to be released in favour of the respondent workman. That being the position, in case, the learned Commissioner assesses the compensation less than what has already been directed to be released, the respondent workman need not refund the said amount. However, in case, the learned Commissioner finds that the respondent workman is entitled to more than 50% of such awarded amount as awarded vide order dated 28.05.2001, the same shall be paid by the insurance company to the workman, there being no dispute relating to the contract of insurance.
19. The appeal is accordingly allowed to the extent as indicated above. No cost. The Registry is directed to send down the records forthwith so as to reach the learned Commissioner, Workmen's Compensation, Kamrup, Guwahati on or before 31.03.2010.
JUDGE Roy