Jharkhand High Court
Mahadeo Minz vs The Divisional Manager on 8 September, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 276 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.276 of 2013
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1. Mahadeo Minz, s/o late Goida Minz
2. Saniaro Minz w/o Sri Mahadeo Minz
3. Pratap Minz (minor) s/o Sri Mahadeo Minz
4. Jyoti Minz (minor) d/o Sri Mahadeo Minz Appellant nos.3 & 4 are minors and are being represented through their mother and natural guardian appellant no.2 who has no adverse interest against them.
All resident of village & P.O. Eta Childri, P.S. Bero, Dist. Ranchi .... .... .... Appellants Versus
1. The Divisional Manager, the Oriental Insurance Co. Ltd., Prabodh Tower, 3rd Floor, S.N. Ganguly Road, Main Road, P.O. GPO, P.S. Kotwali, Dist. Ranchi
2. Bajrang Lal Agarwal s/o Sri Chiranji Lal, r/o Main Road, P.O., P.S. & Dist. Simdega .... .... .... Respondents
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For the Appellants : Mr. Ashutosh Anand, Advocate
For the Respondents : Mr. G.C. Jha, Advocate
: Mr. Gaurav, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This appeal is directed against the order dated 06.07.2013 passed by the Workmen Compensation Commissioner-cum- Labour Court, Ranchi in W.C. Case No.04 of 2012 whereby and where under, the Workmen Compensation Commissioner-cum- Labour Court, Ranchi has directed the opposite party no.2- insurance company to pay Rs.4,14,405/- with interest thereon at the rate of 9% from the date of that order if not paid within 60 days to the applicants-appellants.
3. The brief facts of the case is that the deceased-Prakash Minz was employed as a driver of the tanker. On 19.12.2011, when the deceased was driving the said tanker, the truck being rashly and 2 M.A. No. 276 of 2013 negligently driven dashed the tanker. The deceased- Prakash Minz died at the spot because of the injuries sustained in the said accident.
4. At the relevant time, the deceased- Prakash Minz was on duty working as a driver on the tanker and the occurrence took place during the course of his employment with the opposite party no.1 who is the owner of the said tanker. It is stated that the deceased was paid Rs.5,000/- per month and khuraki (bhata) of Rs.100/- per day. The learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi, considering the fact that no documentary evidence regarding the salary of the deceased being produced, assessed the salary of the deceased as the minimum wages of Rs.144/- per day and applying the relevant factor as 221.37 assessed the compensation amount of Rs.4,14,405/-.
5. Mr. Ashutosh Anand, learned counsel for the claimant- appellants submits that the appellants seeks enhancement of the compensation awarded by the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi on the following grounds:-
(i) Relying upon the judgment of Hon'ble Supreme Court of India in the case of Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance Company Limited & Anr. reported in (2016) 11 SCC 201, paragraph nos.28 and 31 of which reads as under :-
"28. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the State in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs 4000 per month + daily bhatta of Rs 6000 per month, which amounts to a total of Rs 10,000. The High Court did not give any reason 3 M.A. No. 276 of 2013 on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on the part of the High Court was absolutely uncalled for, especially in the light of the fact that Appellants 1 and 2 are old and have lost their elder son and they have become destitutes.
31. The monthly wages of the deceased arrived at by the learned Commissioner were Rs 10,000. The date of birth of the deceased according to the driver's licence produced on record is 1-7-1984. The date of death of the deceased is 19-7- 2011. Thus, according to Schedule IV of the EC Act, the "completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due", is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:
Rs 10,000 × 50% × Rs 213.57 = Rs 10,67,850.
Funeral expenses to the tune of Rs 25,000 are also awarded.
The total amount of compensation payable thus comes to Rs 10,92,850."
It is submitted by Mr. Anand that in this case the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi erred by ignoring the fact that the employer of the deceased who is the opposite party no.1-respondent no.2 herein in paragraph no.6 of his written statement has categorically admitted the fact that the deceased was employed by him and also admitted the salary which is Rs.5,000/- per month besides Rs.100/- per day towards khuraki which comes out to Rs.8,000/- per month.
(ii) It is further submitted by Mr. Anand that the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi ought to have added Rs.25,000/- towards funeral expenses in the amount of compensation in view of the similar compensation being given by the Hon'ble Supreme Court of India in the case of Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance 4 M.A. No. 276 of 2013 Company Limited & Anr. (supra).
(iii) It is further submitted by Mr. Anand by relying upon the judgment of Hon'ble Supreme Court of India in the case of Oriental Insurance Company Limited vs. Siby George & Ors. reported in (2012) 12 SCC 540, paragraph nos. 2, 9 and 14 of which reads as under:-
"2. In this case, the Commissioner for Workmen's Compensation, Ernakulam, by his order dated 26-11-2008 in WCC No. 67 of 2006 directed for payment of simple interest at the rate of 12% per annum from the date of the accident on 12-7-2006. The appellant's appeal (MFA No. 172 of 2009) against the order of the Commissioner was dismissed by the Kerala High Court by order dated 22-7-2009 [Oriental Insurance Co. Ltd. v. Siby George, MFA No. 172 of 2009, decided on 22-7-2009 (Ker)] as barred by limitation. Against the order of the High Court the appellant filed the special leave petition (giving rise to this appeal) in which notice was issued "limited to the interest"
9. Now, coming back to the question when does the payment of compensation fall due and what would be the point for the commencement of interest, it may be noted that neither the decision in Mubasir Ahmed [(2007) 2 SCC 349 : (2007) 1 SCC (L&S) 643] nor the one in Mohd. Nasir [(2009) 6 SCC 280 : (2009) 2 SCC (Civ) 877 : (2009) 2 SCC (Cri) 987] can be said to provide any valid guidelines because both the decisions were rendered in ignorance of earlier larger Bench decisions of this Court by which the issue was concluded. As early as in 1975 a four-Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289 :
1976 SCC (L&S) 52 : AIR 1976 SC 222 : 1976 Lab IC 222] directly answered the question. In paras 7 and 8 of the decision it was held and observed as follows: (Srinivas Sabata case [(1976) 1 SCC 289 : 1976 SCC (L&S) 52 : AIR 1976 SC 222 : 1976 Lab IC 222] , SCC pp. 291-92) "7. Section 3 of the Act deals with the employer's liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if 'personal injury is caused to a workman by accident arising out of and in the course of his employment'. It was not the case of the employer that the right to compensation was taken away under sub-section (5) of Section 3 because of the institution of a suit in a civil court for damages, in respect of the injury, against the employer or any other person. The employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment. It is therefore futile to contend that the compensation did not fall due until after the Commissioner's order dated 6-5-1969 under Section 19. What the section provides is that if any question arises in any proceeding 5 M.A. No. 276 of 2013 under the Act as to the liability of any person to pay compensation or as to the amount or duration of the compensation it shall, in default of agreement, be settled by the Commissioner. There is therefore nothing to justify the argument that the employer's liability to pay compensation under Section 3, in respect of the injury, was suspended until after the settlement contemplated by Section 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.
8. It was the duty of the appellant, under Section 4-A(1) of the Act, to pay the compensation at the rate provided by Section 4 as soon as the personal injury was caused to the respondent. He failed to do so. What is worse, he did not even make a provisional payment under sub-section (2) of Section 4 for, as has been stated, he went to the extent of taking the false pleas that the respondent was a casual contractor and that the accident occurred solely because of his negligence. Then there is the further fact that he paid no heed to the respondent's personal approach for obtaining the compensation. It will be recalled that the respondent was driven to the necessity of making an application to the Commissioner for settling the claim, and even there the appellant raised a frivolous objection as to the jurisdiction of the Commissioner and prevailed on the respondent to file a memorandum of agreement settling the claim for a sum which was so grossly inadequate that it was rejected by the Commissioner. In these facts and circumstances, we have no doubt that the Commissioner was fully justified in making an order for the payment of interest and the penalty."
14. In the light of the discussion made above, we find no merit in the appeal and it is dismissed with costs amounting to Rs 20,000. The amount of cost must be paid to the respondents within six weeks from today." (Emphasis supplied) that as the accident took place on 19.12.2011 so, the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi ought to have awarded simple interest at the rate of 12% from the date of death of deceased that is from 19.12.2011 instead of from the date of award as passed by the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi. Hence, it is submitted by Mr. Anand that the impugned order be modified accordingly.
6. Mr. G.C. Jha, learned counsel for the respondent no.1-
insurance company and Mr. Gaurav, learned counsel for the respondent no.2- owner of the vehicle submits that though in 6 M.A. No. 276 of 2013 paragraph no.6 of the written statement, the owner has admitted about the salary but in the absence of categorical pleading as to how much salary, he admits, such pleading of the owner of the vehicle cannot be interpreted that he admits salary to be Rs.5,000/- per month and khuraki of Rs.100/- per day as pleaded by the applicants in their application submitted before the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi and as no document or register showing the proof of payment of salary to the deceased has been brought on record before the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi, the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi has rightly calculated the salary basing upon the minimum wages of driver at the time of occurrence. Hence, it is submitted that this appeal being without any merit be dismissed.
7. Having heard the submissions made at the Bar and after carefully going through the materials in the record, the sole point for determination that crop up in this appeal is as under:-
"Whether the amount of compensation awarded by the learned Workmen Compensation Commissioner-cum-
Labour Court, Ranchi is to be enhanced?"
8. Now coming to the judgment of Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance Company Limited & Anr. (supra) in the facts of that case no document was brought on record to prove the exact amount of wages being earned by the deceased at the time of accident to arrive at the amount of wages. Still keeping in view that the deceased was a high skilled 7 M.A. No. 276 of 2013 workman and would often be required to undertake long journeys outside the State in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit and the date of occurrence in that case was on 19.07.2011, the Hon'ble Supreme Court of India accepted the monthly wages arrived at by the learned Commissioner to be Rs.10,000/- and here the only factual difference is that instead of the vehicle in question was having a National Route Permit, in this case, the vehicle in question was having the State Route Permit and further in this case, there is oral testimony which has come through A.W.1- Mahadeb Minz who is the father of the deceased. He has categorically stated that the deceased was paid a salary of Rs.5,000/- per month and daily khuraki of Rs.100/-.
9. Under such circumstances, this Court has no hesitation in holding that the learned Workmen Compensation Commissioner- cum- Labour Court, Ranchi erred in assessing the salary of the deceased on the basis of minimum wages and this is a fit case where the salary of the deceased be assessed as Rs.8,000/- per month.
10. In view of the judgment of Hon'ble Supreme Court of India in the case of Jaya Biswal & Ors. vs. Branch Manager, IFFCO Tokio General Insurance Company Limited & Anr. (supra), certainly, the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi erred by not awarding Rs.25,000/- towards funeral expenses and this Court is of the considered view that the claimants-appellants are entitled to further amount of compensation of Rs.25,000/- on account of funeral expenses.
11. Now coming to the third limb of argument of claimants- 8 M.A. No. 276 of 2013 appellants regarding the rate of interest, as has been held in the case of Oriental Insurance Company Limited vs. Siby George & Ors. (supra), this Court in the facts of this case, has no hesitation in holding that claimants-appellants are entitled to simple interest at the rate of 12% from the date of accident i.e. from 19.12.2011 to the date of actual payment.
12. Thus, the total amount of compensation to which the claimants-appellants are entitled to are Rs.8,000/- X 50% X 221.37 which equals to Rs.8,85,480/- and adding Rs.25,000/- towards funeral expenses, the total amount comes out to Rs.9,10,480/- with simple interest at the rate of 12% from the date of accident i.e. from 19.12.2011 to till the date of payment of the same by the insurance company less the amount already paid by the insurance company. The sole point for determination is answered accordingly.
13. In view of the answer to the sole point for determination, the impugned order dated 06.07.2013 passed by the learned Workmen Compensation Commissioner-cum- Labour Court, Ranchi in W.C. Case No.04 of 2012 is modified by directing the opposite party no.2 who is the respondent no.1 in this appeal to pay Rs.9,10,480/- with simple interest at the rate of 12% from 19.12.2011 less the amount already paid to the claimants-appellants within three months from the date of this Judgment.
14. In the result, this appeal is allowed on contest but in the circumstances without any costs.
15. Let a copy of this Judgment along with Lower Court Records be sent back to the concerned learned Workmen 9 M.A. No. 276 of 2013 Compensation Commissioner forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th September, 2022 AFR/ Sonu-Gunjan/-