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Judgment
Heard Mr. S. Dutta, learned counsel for the appellant.
It appears that by order dated 08.01.2013, this appeal was directed to proceed ex-parte against the respondent Nos. 1 and 2. However, after that, this matter was listed only on three occasions and on all the three occasions, the learned counsel for the appellant sought adjournments, which were granted.
This appeal under Section 30 of the Employees’ Compensation Act, 1923 has been preferred by the Oriental Insurance Company Limited impugning the judgment and award dated 21.06.2007, passed by the learned Commissioner for Workmen's Compensation, Nagaon, in NWC Case 69/2004.
The facts relevant for consideration of this appeal, in brief, are that the present respondent No. 1 as claimant had filed an application under Section 22 of the Workmen's Compensation Act, 1923 claiming compensation for injuries sustained by the claimant in a motor vehicular accident on 04.04.2004 during the course of and arising out of the employment under the present respondent No. 2. It was pleaded in the claim petition filed by the respondent No. 1 that he was employed by the respondent No. 2 in the vehicle bearing Registration No. AS-02-7392 as a cleaner and also to help the driver and laborers of the vehicle and to maintain the vehicle by washing etc. It is pleaded in the claim petition that on 04.04.2004, when the respondent No. 1 boarded the aforesaid vehicle and same was proceeding from Dokmoka side towards Nagaon, it met with an accident at Morikolong at National Highway No. 36 under Nagaon Police Station at about 8:10 PM due to sudden tire burst of the truck. As a result of the said accident, the respondent No. 1 sustained multiple injuries on his person. The claim case filed by the respondent No. 1 was registered as NWC Case 69/2004.
It was also pleaded in the claim petition that the offending vehicle was insured with the present appellant at the time of the said accident. In the aforesaid claim case, the opposite party including the present appellant as well as owner of the offending vehicle did not contest the claim, hence, it proceeded ex-parte against them. In order to support his claim, the present respondent No. 1 examined himself as PW-1 and has exhibited eight documentary exhibits. The claimant also examined the doctor who treated him as PW-2. As per the medical report, the claimant sustained 25% physical disability, which has reduced his earning capacity to the extent of 35%.
Ultimately, by judgment dated 21.06.2007, passed in NWC Case 69/2004, the learned Commissioner, Workmen’s Compensation, Nagaon allowed the claim petition and directed the present appellant to pay compensation amount of Rs.1,37,636/-along with an interest at the rate of 9% per annum. The said judgment is impugned in this appeal.
This Court, while issuing notice to the respondents in this case by its order dated 01.03.2012 had formulated following substantial question of law: -
“Whether the daily allowance payable to a workman forms part of the “wages” as defined under Section 2(m) of the Employees Compensation Act, 1923”.
Mr. S. Dutta, the learned counsel for the appellant has fairly submitted that the substantial question of law formulated in this case cannot be regarded as a substantial question as same has been already settled by the Supreme Court of India that the regular daily allowance paid to a workman may be regarded as part of wages as defined under section 2(m) of the Employees Compensation Act, 1923. He fairly submits that no interference of this Court is warranted in the impugned judgment.
I have considered submissions made by the learned counsel for the appellant and have gone through the records.
The Supreme Court of India as observed in the case of Mohd. Ameeruddin v. United India Insurance Co. Ltd., reported in(2011) 1 SCC 304 as follows: -
“5.Against the judgment and order passed by the Tribunal, the Insurance Company filed an appeal before the High Court, which, as noticed above, was partly allowed. For assessing the monthly income of the deceased, the High Court took into account only the monthly salary of the deceased and excluded the amount of daily allowance (Rs. 50) from consideration observing as follows:
“However, the Tribunal has erred in including batta of Rs. 50 per day, as a part of the salary and assessed the monthly income of the deceased. Batta is not paid as a part of the salary, but it is paid whenever there is work. It is now well settled that batta shall not be calculated in the salary in assessing the income of the deceased.”
6.The High Court further observed that the proper multiplier, appropriate to the age of the mother of the deceased in terms of the ratio laid down by this Court in Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] is 13. Thus, multiplying Rs. 30,000 by 13, the High Court arrived at the figure of Rs. 3,90,000 and taking away from it 1/3rd towards the personal expenses of the deceased held that the loss of dependency of the claimants would be not more than Rs. 2,60,000 under the head “loss of future earnings”.
7.We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs. 50 was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from the monthly salary of Rs. 2500 he was getting Rs. 50 as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4000.”
Thus, if daily allowances are paid regularly and consistently as a matter of course under the terms of employment forming an integral part of the workman’s monthly emoluments or regular earnings, it may be treated as part of wages as defined under section 2(m) of the Employees Compensation Act, 1923.
In the instant case, the employee was getting Rs.100/- per day as his allowances and as such his monthly earnings come to Rs.3000/-, which, under the circumstances of this case, may be regarded as part of wages as defined under section 2(m) of the Employees Compensation Act, 1923.
In view of the discussions made in reasons stated in the foregoing paragraphs, the substantial question of law formulated in this appeal is accordingly answered and no justification is found to interfere with the impugned judgment and award.
This appeal is accordingly dismissed.
Send back the records of the Trial court to the Office of the learned Commissioner for Workmen's Compensation, Nagaon with a copy of this judgment.