Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Smt. Rattani Devi And Another on 3 March, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
FAO No. 255 of 2014
Decided on: 02.03.2023
.
Oriental Insurance Company Ltd. ....Appellant
Versus
Smt. Rattani Devi and another ...Respondents
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the appellant : Mr. Deepak Bhasin, Senior Advocate
r with Mr. Sambhav Bhasin, Advocate.
For the respondents : Mr. Vikas Rathore and Vinod
Chauhan, Advocates for respondent
No. 1.
: Respondent No. 2 ex parte.
Ajay Mohan Goel, Judge (Oral)
By way of this appeal, the appellant-Insurance Company has assailed award dated 25.04.2014, passed by the Court of Commissioner under the Employee's Compensation Act, 1923, Bilaspur, District Bilaspur in WC No. 3/2 of 2011/10, titled Smt. Rattani Devi vs. Smt. Pushp Lata and another, in terms whereof, the claim petition preferred by respondent No.1 herein was allowed by the learned Commissioner in the following terms:-
"In the light of my findings on above issues, the present petition is partly allowed and an award of Rs.
1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 03/03/2023 20:33:20 :::CIS 2
5,84,800/- alongwith interest @ 12% per annum from the date of death of deceased Bhim Singh i.e. .
28.10.2009 till realization of the said amount alongwith Rs. 5,000/- as funeral charges alongwith the cost of litigation is hereby passed in favour of the petitioner and against the respondents. The file after due completion be consigned to the record room."
2. This appeal was admitted on 23.02.2015, on the following substantial questions of law:-
"1. Whether the award of the Commission suffers from illegality and is unsustainable regarding employer-
employee relationship in the absence of any proof?
2. Whether the Commissioner has committed an error while arriving at the conclusion that the deceased suffered injuries during the course of his employment under the Insured in the absence of any employment proof on record?
3. Whether the Award is unsustainable for the reason that the Commissioner has fell into error while applying the provisions of law with retrospective effect?
4. Whether the learned Commissioner was justified in imposing the interest on award amount upon the ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 3 insurance company in the absence of any contract or statutory provision empowering him to do so?"
.
3. Brief facts necessary for the adjudication of the present appeal are as under:-
Respondent/petitioner (hereinafter referred to as the petitioner for convenience) filed a petition seeking compensation under the Workmen's Compensation Act, on the grounds that her husband, namely, Bhim Singh was working as a Driver with Smt. Pushp Lata, engaged on vehicle No. Hyva No. HP 24A-457A and in the course of his employment on 28.10.2009, when he was plying said vehicle from Delag Gala to Ghagas, the same met with an accident, on account of which, Bhim Singh sustained multiple injuries, leading to his death. According to the claimant, the accident occurred on account of a mechanical defect. At the time of the accident, deceased Bhim Singh was getting a monthly salary of Rs. 6000/- per month and also Rs. 150/- as diet money and apart from this, he was also having some earning from the agriculture, which took his gross monthly earnings to be Rs.11,500/-. Compensation to the tune of Rs. 20,000,00/- was sought by the claimant. The owner of the vehicle admitted the case of the petitioner except the fact that late Bhim Singh was having any agricultural income.::: Downloaded on - 03/03/2023 20:33:20 :::CIS 4
4. The appellant-Insurance Company, resisted the claim petition inter alia on the ground that the same was not .
maintainable and that the vehicle was being driven by the deceased without any valid and effective licence and that there was no nexus between the death of the deceased and his employment.
5. On the basis of pleadings of the parties, the following issues were framed by learned Commissioner:-
1. Whether the deceased Bhim Singh the husband of petitioner died during the course of employment with the respondent while driving the Hyva No. HP 24A-4578? OPP
2. If issue No. 1 is proved in affirmative whether the petitioner is entitled for the compensation to the tune of Rs. 20,00,000/- from the respondents on accont of the death of Bhim Singh alongwith interest @ 12% per annum? OPP
3. Whether the petition is not maintainable in the present form? OPD
4. Whether the petition is incomplete, vague and without cause of action? OPD
5. Whether there is no nexus between the death and the employment of deceased Bhim Singh with the respondents? OPD ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 5
6. Relief.
6. On the strength of the evidence led by the parties, the .
issues were decided as under:-
Issue No. 1 : Yes
Issue No. 2 : Partly yes
Issue No. 3 : No.
Issue No. 4 : No.
Issue No. 5 : No.
Relief : The petition of the petitioner is
r partly allowed as per operative
part of the award.
7. Learned Commissioner, after holding that deceased Bhim Singh was employed as a Driver on her vehicle by Smt. Pushp Lata and after holding that the death of Bhim Singh took place in the course of his employment, awarded an amount of Rs.5,84,800/- in favour of the claimant. While arriving at the said figure, learned Commissioner on the basis of evidence on record took the age of the deceased to be 52 years and assessed the gross income of the deceased to be Rs. 10,500/- per month and took the same to be Rs.8000/- per month on the basis of notification No. S.O. 1258 (E) Dated 31.5.2010 of the Central Government for assessing compensation.
::: Downloaded on - 03/03/2023 20:33:20 :::CIS 68. Learned Senior Counsel appearing for the appellant-
Insurance Company, has argued that the award passed by the .
learned Commissioner is not sustainable in the eyes of law as learned Commissioner erred in not appreciating that the deceased did not die in the course of his employment nor there was anything on record to establish the relationship of employee and employer between the deceased and Smt. Pushp Lata. Learned Senior Counsel has also argued that assuming the accident did take place in the course of employment, then also the award was not sustainable as the provisions of law, which have been applied by the learned Commissioner while calculating the compensation payable to the claimant were those which were incorporated in the Employee's Compensation Act, 1923, after the date of accident.
Accordingly, a prayer has been made that the present appeal be allowed and the award in issue be set aside.
9. The appeal is resisted by the learned Counsel appearing on behalf of respondent No.1 on the ground that there is no perversity in the award passed by the learned Commissioner as the findings returned by the learned Commissioner that the husband of the claimant died in harness, were correct findings which were duly borne out from the record and it also stood proved on record that the deceased was engaged as a Driver on the vehicle of Smt. Pushp Lata, who also had admitted this fact.
::: Downloaded on - 03/03/2023 20:33:20 :::CIS 7Learned Counsel further submitted that the provisions of the Employee's Compensation Act, 1923, as have been taken into .
consideration by the learned Commissioner can also not be faulted with for the reason that Employee's Compensation Act being a beneficial legislation, learned Commissioner rightly announced the award by relying upon the statutory provisions as they stood on the date when the award was announced. Accordingly, he has submitted that as there is no infirmity in the award passed by the learned Commissioner, the present appeal be dismissed.
10. I have heard learned Senior counsel appearing for the appellant as well as learned counsel for respondent No.1. As none has put in appearance on behalf respondent No.2 despite service, accordingly said respondent is proceeded against ex parte.
11. This Court will answer substantial questions of law No.1 and 2 first and thereafter, it will refer to the other substantial questions of law. A perusal of the record demonstrates that in the claim petition, it was averred by the claimant that respondent No.1 impleaded therein, namely, Smt. Pushp Lata, who is respondent No.2 in the present appeal, was the registered owner of vehicle Hyva No.HP 24A-4578, which was duly insured with the present appellant-Company and the husband of the deceased was employed by the owner of the vehicle as driver of the said vehicle.
::: Downloaded on - 03/03/2023 20:33:20 :::CIS 8Further, it was averred in the claim petition that on 28.10.2009, when the vehicle was on its way from Delag Gala to Ghaghas and .
Bhim Singh was on the wheels of the vehicle and he was driving the same with due care and caution, the vehicle rolled down the hill near Village Dali and as a result of this accident, Bhim Singh sustained multiple serious injuries, leading to his death.
According to the claimant, Bhim Singh was a hale and hearty person aged 50 years who was being paid a monthly salary of Rs.6,000/- per month and also Rs.150/- per day as diet money and additionally, he was also earning Rs.1,000/- per month from agriculture sources. Response thereto filed by respondent No.1 demonstrates that the factum of deceased Bhim Singh being engaged as a Driver on the vehicle, particulars whereof stand mentioned in the claim petition, was admitted by the owner of the vehicle and similarly, the averments made in the claim petition with regard to monthly wages as also the diet money being paid to Sh. Bhim Singh, were admitted by the owner of the vehicle. That being the case, this court is of the considered view that as the owner of the vehicle did not dispute the relationship of employer and employee between her and the deceased, no further evidence was required to be led by the claimant to prove this fact and in case, the insurance company was of the view that there was any collusion etc. between the claimant and the so-called owner of the ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 9 vehicle or indeed there was no such relation of master and servant, then the onus was upon the insurance company to prove .
this fact which it miserably failed to do as there is no evidence on record lead by the Insurance Company to demonstrate that there was no such relationship between the deceased and Smt. Pushp Lata. Therefore, this Court has no hesitation in holding that there is no infirmity in the findings returned by the learned Commissioner with regard to relationship of employee and employer between deceased and Pushp Lata. Similarly, the factum of the deceased having lost his life in the course of his employment, has also been admitted by the owner of the vehicle.
There is also on record a copy of FIR Exhibit AW-1/A, dated 28.10.2009, which clearly proves the factum of the said incident having taken place. The copy of the driving licence, RC of the vehicle as well as the copy of insurance of the vehicle alongwith the postmortem report of the deceased are also on record. These exhibits clearly prove the factum of the deceased having lost his life in the course of employment and also the fact that the vehicle was not being driven in violation of the provisions of the insurance policy and the vehicle indeed was duly insured with the insurance company. Accordingly, this Court holds that the findings which have been returned by the learned Commissioner with regard to the relationship of employee and employer between deceased Bhim ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 10 Singh and Pushp Lata and also with regard to death of deceased Bhim Singh having taken place in the course of his employment, .
are correct findings, duly borne out from record and the same do not call for any interference.
12. Now, this Court will deal with substantial questions of law No. 3 and 4. The accident in issue took place on 28th October, 2009. The provisions of Section 4 of the Employee's Compensation Act, 1923, as they existed on the date when the unfortunate accident took place, inter alia in terms of Explanation (II) appended thereto provided that where the monthly wages of a workman exceed Rs.4000/-, his monthly wages for the purpose of (a) and (b) shall be deemed to be Rs.4000/- only. This explanation was omitted vide Act 45 of 2009 i.e. Section 7(A)(IV) thereof, w.e.f.
18.01.2010. As already mentioned hereinabove in the present case, the accident took place on 28th October, 2009 and deceased also lost his life in the said accident on the same day. However, a perusal of the impugned award demonstrates that while assessing the compensation payable to the complainant, in para 12 of the award learned Commissioner has relied upon Notification No. S.O.1258 (E), dated 31.5.2010, of the Central Government, in terms whereof, the monthly wages for the purpose of assessing compensation cannot exceed Rs. 8,000/- and by taking the monthly wage of the deceased to be Rs.10,500/-, the ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 11 compensation has been calculated by multiplying the relevant factor by taking the monthly wages of the deceased to be Rs.
.
8,000/- per month. This Court is of the considered view that this part of the award passed by the learned Commissioner is not sustainable for the reason that as the incident and death took place on 28.10.2009, i.e., before notification dated 31.5.2010 had come into force, the compensation ought to have been assessed by the learned Commissioner on the basis of the statutory provisions as they existed on the date when the unfortunate accident took place i.e. by placing reliance upon the contents of Explanation (II) of Section 4 of the Act, which were omitted w.e.f. 18.1.2010. In fact, this issue is no more res integra and Hon'ble Supreme Court of India in case K. Sivaraman and others vs. P. Sathishkumar and another, (2020) 4 Supreme Court Cases 594, has clearly and categorically reiterated the legal position by stating that prior to the Act 45 of 2009, by virtue of deeming provision in Explanation II to Section 4, the monthly wages of an employee were capped at Rs.4,000/- even where an employee was able to prove the payment of a monthly wage in excess of Rs.4000/-. Hon'ble Supreme Court further held that the legislature, in its wisdom and keeping in mind the purpose of the 1923 Act as a social welfare legislation did not enhance the quantum in the deeming provision, but deleted it altogether and the amendment was in furtherance of the salient ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 12 purpose which underlines the 1923 Act of providing to all employees compensation for accidents which occur in the course .
of and arising out of employment. Hon'ble Supreme Court further held that the objective of the amendment was to remove a deeming cap on the monthly income of an employee and extend to them compensation on the basis of actual monthly wages drawn by them, however, there was nothing to indicate that the legislature intended for the benefit to extend to accidents that took place prior to the coming into force of the amendment.
13. In light of the said pronouncement of law by the Hon'ble Supreme Court of India, the award passed by the learned Commissioner in terms whereof the compensation has been assessed by placing reliance upon notification dated 31.05.2010 which came into force after the date of accident, is not sustainable in law and the same requires to be modified to the extent that the compensation payable to the claimant has to be now reassessed by taking the income of the deceased at Rs.4000/- and then calculating the compensation by taking 50% of the same and multiplying it with the relevant factor. As far as the issue of imposition of interest on award upon the insurance company is concerned, this issue is also now no more res integra and the learned Commissioner in fact has not committed any illegality in ordering the award of interest at the rate of 12% per annum, ::: Downloaded on - 03/03/2023 20:33:20 :::CIS 13 however, this also has to be modified to the extent that interest is to be payable after one month as from the date of the accident.
.
14. Accordingly, the appeal stands partly allowed in above terms and the compensation payable to the claimant stands re-
assessed as under:-
Income of the deceased = Rs. 4,000/-
50% of Rs. 4,000/- = Rs. 2000/-
Multiplying the factor of 146.2 = 2000x1.46.2
= Rs. 2,92,400/-
Total amount = Rs. 2,92,400
+ 5,000
(Funeral charges)
= Rs.2,97,400/-
15. Now the total re-assessed amount, which is payable to the claimant is Rs. 2,97,400/- alongwith interest @ 12% per annum from 28.11.2009, i.e. one month after the accident, till deposit of compensation amount by the Insurance Company, i.e. 29.05.2014 and thereafter applicable rate of interest.
16. The appeal stands disposed of in above terms. As prayed for by learned Counsel for the parties, the amount which is now payable to the claimant alongwith interest after taking into consideration the amount which already stands paid to her, is ordered to be released in her favour and the balance amount is ordered to be refunded to the Insurance Company.
::: Downloaded on - 03/03/2023 20:33:20 :::CIS 14Pending miscellaneous application(s), if any, also stand disposed of accordingly.
.
(Ajay Mohan Goel)
Judge
March 02, 2023
(narender)
r to
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