Gadalinga and Others vs Narasimhalu and Others

A.N. Venugopal Gowda, J.—Aggrieved by the quantum of award passed by the Commissioner of Workmen''s Compensation, the claimants have preferred these appeals.

Sri. R.K. Hatti, learned advocate appearing for the appellants contended that the Commissioner of Workmen''s Compensation has committed error in reckoning wages of the workmen/appellant/s at Rs. 2,200/- per month when there is credible evidence placed on record in proof of the wages of the workmen at Rs. 3,000/- per month. He further contended that non-awarding of interest for the period after expiry of 30 days from the date of occurrence of accident is illegal. Learned Counsel submitted that in view of the record of the case, substantial questions having arisen for determination, there is need to modify the impugned judgment and award entitling the appellants to enhance compensation with interest.

The appellants were claimants before the Commissioner of Workmen''s Compensation. The cases of the appellant were taken up together along with cases filed by other injured workmen, for consideration and decision.

The occurrence of the accident, sustaining of employment injury, insurance coverage and liability to pay the compensation, as was determined by the Commissioner for Workmen''s Compensation, has not been assailed by the respondents. According to Sri. R.K. Hatti, respondents have satisfied the impugned awards.

The Commissioner of Workmen''s Compensation has reckoned the wages at Rs. 2,200/- per month and the Loss of earning capacity at 25%. By applying the multiplier and relevant factor, the compensation payable was determined and was directed to be deposited within 30 days, failing which interest shall be payable at 12% p.a. Interest was not awarded by making reference to the decision in the case of National Insurance Co. Ltd. Vs. Mubasir Ahmed and Another, .

The appellants were working as Hamalis at relevant point of time. No doubt, there is no credible evidence with regard to their wages. However, their testimony before the Commissioner for Workmen''s Compensation being credible, their wages ought to have been reckoned atleast at Rs. 3,000/- per month. By reckoning the wages at Rs. 2,200/- per month the Commissioner has committed error and illegality. Thus, two substantial questions of law arose for consideration:

Whether the Commissioner has committed error and illegality in the matter of reckoning the wages at Rs. 2,200/- per month?

Whether non-awarding of interest after the expiry of 30 days period from the date of occurrence of the accident, on account of non-deposit of compensation by the insured and insurer is illegal?

Both the appellants have deposed before the Commissioner of Workmen''s Compensation and have stated about their employment, wages earned and loss of earning capacity. There being no dispute that as on the date of occurrence of the accident the appellants were working as Hamalis, their income should be reckoned at Rs. 3,000/- per month, particularly, when the employer has not deposed before the Commissioner and has not repudiated the claim by the applicants/appellants that they were being paid wages of Rs. 3,000/- per month. Thus, wages reckonable being Rs. 3000/-, compensation payable stands determined at Rs. 1,01,871/- (3000x60%x226.38x25%=1,01,871).

In the case of The Oriental Insurance Company Ltd. Vs. Siby George and Others, , the Apex Court has held that the decision in the case of Mubasir Ahamed (Supra), is per incuriam. Interest was allowed on the compensation amount after expiry of 30 days period from the date the accident occurred. In the case of Alimuddin vs. New India Insurance Co. Ltd., ILR 2009 KAR.1422 it was held that interest at 12% p.a. is payable after expiry of 30 days'' period from the date of accident till the date of deposit. In view of the same, non-awarding of interest by the Commissioner for Workmen''s Compensation after expiry of 30 days from the date of occurrence of accident is illegal. Both the substantial questions of law are answered in favour of appellants.

In the result, the appeals are allowed and the impugned judgment/awards are modified. The compensation payable in favour of each of the appellants, by the respondents, is determined at Rs. 1,01,871/- with interest at 12% p.a. from 25.8.2001, till the date of deposit.

Draw the modified accordingly.