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Judgment
Heard Mr. A. Acharjee, learned counsel appearing for the appellants.
This is an appeal under Section 30 of the Employees' Compensation Act, 1923 for enhancement of the awarded compensation passed by the learned Commissioner, Employees Compensation, Gomati District, Udaipur, vide judgment dated 28.02.2019 in connection with T.S.(E.C.) 03/2016.
The case as projected by the learned Commissioner is stated below, in verbatim:
"2. The case of the petitioners, in short, is that on 19.10.2015 Subrata Deb (since deceased) was working as cleaner-cum-loading and unloading labourer of the vehicle bearing no. TR-03-E-1533 (TATA Ace) owned by OP No.1 Sri Gouranga Chandra Debnath. On that day at about 18.50 hours the deceased along with other labourers was proceeding towards Udaipur from Golaghati in the said vehicle with a Mixture Machine after completion of construction work. They were proceeding through Pramod Nagar - Bishramganj road. It is alleged that from the very beginning the vehicle was being driven in abnormal high speed by its driver. After reaching at Jagaibari the driver lost control over the vehicle and it got capsized on the road. As a result, the deceased fell under the said Mixture Machine and died on the spot. It is stated that after the accident the deceased was taken to Bishramganj PHC where on examination the attending doctor declared him dead. According to them, Subrata died in the accident during the course of his employment as cleaner-cum-loading and unloading labourer of the vehicle No.TR-03-E-1533 (TATA Ace) owned by OP No.1 Sri Gouranga Chandra Debnath. Concerning the accident a Police case vide Bishramganj P/S Case No.58 of 2015 under Sections 279/304-II of IPC was registered. The petitioner also sent notice to the opposite-party Gouranga Chandra Debnath which was duly received by the OP. At the time of death, the deceased was aged about 43 years and his monthly wages was Rs.6,000/-. The petitioners were dependent upon the income of the deceased. They claimed compensation of Rs.30,00,000/- with interest from the opposite-parties.
3.The O.P. Nos.1 and 2, the respective owner and driver of the offending vehicle in their joint written statement admitted the fact that deceased Subrata Deb was an employee as cleaner-cum-loading and unloading labourer of the vehicle No.TR-03-E-1533 (TATA Ace) owned by OP No.1. During the course of his employment in the said vehicle, on 19.10.2015 he met with an accident and died at the spot. They stated that the accident did not occur due to any fault on their part. They further stated that at the relevant time of accident the vehicle was duly insured with OP No.3 Oriental Insurance Co. Ltd. and the same was driven by a driver having valid driving licence. Therefore, if any compensation is awarded in favour of the petitioners, O.P. No.3 Oriental Insurance Co. Ltd. would indemnify the same. O.P. no.3, the Oriental Insurance Co. Ltd. in their written statement specifically denied the deceased being an employee under O.P. no.1 and as such the claim petition was not maintainable as against the owner or the insurer. They also asserted that for that reason they are not liable to pay any compensation. It is stated by them that on the relevant date of accident the deceased as a passenger was travelling in the said vehicle. They also formally denied the accident, age and income of the petitioner etc. It is asserted by O.P. No.3 that if there is any violation of specific terms and conditions of the insurance policy and Motor Vehicles Act, the insurance company shall not at all be liable to pay any compensation, if awarded. Finally, they asserted that the petitioners should be put under strict onus to produce cogent evidence in order to prove their claim.
On the basis of above facts, learned Commissioner had framed the following issues:
(1) Was Subrata Deb an employee on 19.10.2015 under the O.P. No.1 Sri Gouranga Ch Debnath as defined under the Employees' Compensation Act,1923 ?
(2) Did Subrata Deb in course of his employment sustain injuries on 19.10.2015 at about 1850 hours at Jagaibari on Pramodnagar Bishramganj road and consequently die due to said injuries ?
(3) Whether the petitioners are entitled to get compensation and if so, to what amount and who is/are to pay the same ?
(4) To what other relief/relies are the parties entitled ?
During course of trial, the claimant-petitioner No.1 was examined as PW-1 and in her deposition she clearly stated that at the time of death of the deceased i.e. her husband, he used to earn Rs.6000/- per month. The owner-opposite party in his written statement had admitted the fact that the deceased was earning Rs.6000/- per month. Necessary documents were produced by the claimant-petitioners as well as the owner of the offending vehicle. Those documents being taken into proof were considered by the learned Commissioner, Employees Compensation.
The learned Commissioner while deciding the question about the quantum of compensation had made the following observation in his judgment which are reproduced here-in-below:
"Now, the question is what will be the amount of compensation ?
To determine the amount of compensation, Section 4 of the Employee's Compensation Act is to be resorted to. Where death results from the injury, an amount equal to 50% (fifty percent) of the monthly wages of the deceased is to be multiplied by the relevant factor or an amount of Rs.1,20,000/-, whichever is more is to be given. The factor is to be decided on the basis of age of the deceased.
In support of age, no document is produced by the petitioners. However, as per post mortem report it appears that at the time of death the deceased was aged about 45 years. It is stated that his income was Rs.6,000/-, per month. His employer also admitted the same in the written statement. But no income certificate is produced. No other evidence is produced to support the actual income of the deceased. Considering the minimum wage, the income is decided as Rs.5,000/-, per month. Age of the deceased was 45 years at the time of his death. So relevant factor as per Schedule IV, Section 4 of the Employee's Compensation Act is 169.44. 50% of the income i.e. Rs.2,500/- is to be multiplied with this factor i.e. 169.44. The amount of compensation then will come to Rs.4,23,600/-. As per Employee's Compensation Act, petitioners are entitled to get this amount. The petitioners are also entitled to get interest @ 9%, per annum, over this amount from the date of filing this petition i.e. 18.07.2016."
After considering the evidence on record, the learned Commissioner has fixed the liability upon the Oriental Insurance Company Ltd. to pay the entire awarded amount of Rs.4,23,600/-along with interest @ 9% per annum among the legal heirs of the deceased i.e. the claimant-petitioners. Mentionably, the shares of distribution of the awarded amount as aforestated were determined by the learned Commissioner.
By preferring the present appeal to this Court, the only contention of Mr. A. Acharjee, learned counsel for the appellants is that though the claimants were able to substantiate the monthly income of the deceased as Rs.6000/-, but, the learned Commissioner has awarded the compensation considering the income of the deceased at Rs.5000/- per month. Learned counsel further submitted that the awarded interest @ 9% per annum is contrary to the law laid down under the statute. According to Mr. Acharjee, learned counsel the interest should be fixed @ 12% per annum instead of 9%.
None appears for the respondents. There is no prayer on behalf of either of the respondents to adjourn the case today. Since it is a matter relating to employees compensation, I have taken up the matter for disposal.
It is the clear finding of the learned Commissioner that the claimant-petitioners have adduced evidence to substantiate that the deceased husband of claimant-petitioner No.1 had an income of Rs.6000/- per month. The employer of the deceased has also admitted in his written statement at Para 6 that the total monthly income of the deceased at the time of his death was Rs.6000/-. There is no contrary evidence though the respondent No.3, the insurance company in their written statement denied the claim of the claimant-petitioners and the employer of the deceased, but, they did not adduce any evidence in support of their objection that the deceased was not earning Rs.6000/-per month at the time of his death.
In view of this, I find no reason to disbelieve the evidence let in by the claimant-petitioners which is further supported by the employer of the deceased. As such, I am of the considered view that the income of the deceased should be determined at Rs.6000/- per month instead of Rs.5000/- per month as decided by the learned Commissioner. Accordingly, this Court has determined that the monthly income of the deceased at the time of his death was Rs.6000/-
Now, the compensation has to be quantified. As per Section 4 of the Employee's Compensation Act, the relevant factor 169.44 is applicable in this case since the deceased died at the age of 45 years. His monthly income has been fixed at Rs.6000/- at the time of his death. So, to work out the actual compensation, 50% of the income of the deceased i.e. Rs.3000/-, is to be multiplied with the factor 169.44/- and on calculation, it comes to Rs.5,08,320/-.The claimant-petitioners are entitled to get this amount as compensation in this case. Further, I modify the interest rate from 9% to 12 % per annum.
Accordingly, the claimant-petitioners are entitled to get compensation to the tune of Rs.5,08,320/- along with interest @ 12% per annum from the date of death of the deceased i.e. 19.10.2015.
The respondent No.3, Oriental Insurance Company Ltd. shall pay the entire compensation amount along with interest to the claimant-petitioners within a period of three months from the date of receipt of copy of this judgment. The proportionate shares amongst the legal heirs of the deceased as determined by the learned Commissioner are not interfered with and the same are affirmed by this Court.
Mr. A. Acharjee, learned counsel appearing for the claimant-appellants submits that the appellants are entitled to Rs.25,000/- as compensation in view of the judgment passed by the Apex Court in the case of Jaya Biswal & Ors. V. Branch Manager, IFFCO Tokio General Insurance Co. Ltd. & Anr. (Civil appeal No.869 of 2016), is rejected for the reason that the circumstances at which the Apex Court awarded such amount is distinguishable to the circumstances of the present case.
The appeal, accordingly, partly allowed and thus disposed of.
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