Judgment · High Court

Heard Mrs. Choudhury, learned counsel for the appellant and Mr. Phukan, learned counsel appearing for the respondent No.1/claimant. This appeal by the insurance company is directed against the award dated 17.09.2001 passed by the learned Commissioner, Workmen’s Compensation in W.C. C ase No.71/2000 awarding an amount of Rs.4,33,820/- as compensation together with an amount of Rs.1,000/- towards the funeral cost under the Workmen’s Compensati on Act, 1923 (now Employees’ Compensation Act, 1923). The ground on which the said award is put to challenge by the insurance company is that the learned Commissioner has taken the monthly wages of the dece ased workman at Rs.4,000/- by taking into account the daily allowance at Rs.50/- , though the (cid:28)wages (cid:29) as defined in Section 2(1)(m) of the Act does not include t he daily allowance paid or payable to the workman. Since no substantial question of law was earlier formulated, upon hearin g the learned counsel for the appellant as well as the learned counsel appearing for the respondent No.1/claimant, I have decided to hear the appeal on the foll owing substantial question of law:- Whether the (cid:28)wages (cid:29) as defined under Section 2(1)(m) of the Employees’ Compensat ion Act, 1923 includes the daily allowance paid to the workman concerned? As agreed to by the learned counsel for the parties, the appeal is taken up for hearing today itself. It has been contended by the learned counsel for the appellant that the substantial question of law as formulated has already been answered in a Divisio n Bench judgment of this Court in Oriental Insurance Co. Ltd. Vs. Lakhimai Das & anr. reported in 2006(3) GLT 870 by holding that the daily allowance paid or pa yable to a workman does not include in the definition of (cid:28)wages (cid:29) under Section 2 (1)(m) of the Act and as such the learned Commissioner is not justified in award ing the compensation by taking into account the daily allowance paid to the work man concerned. The learned counsel appearing for the respondent No.1 has submitted that the definition of the (cid:28)wages (cid:29) in Section 2(1)(m) of the Act includes the daily allowance paid or payable to a workman and as such the learned Commissioner has not committed any illegality in taking into account the daily allowance paid to the workman as a part of wages while arriving at the compensation payable. A Division Bench of this Court in Oriental Insurance Co. Ltd.(supra) has held that the daily allowance paid or payable to the workman does not form part of the wages as defined in Section 2(1)(m) of the Act. The learned Commissioner has taken the monthly wage of the deceased workman as Rs.4,000/-, for the purpo se of arriving at the compensation payable, as there was evidence on record that the concerned workman was paid Rs.2,500/- as monthly salary as well as Rs.50/- as daily allowance. It is being the claim under Section 4(1)(a) of the Act, the learned Commissioner, therefore, has taken 50% of the Rs.4,000/- i.e. Rs.2,000/- towards the monthly wages and multiplied by the relevant factor and assessed th e compensation at Rs.4,33,820/-. As noticed above, the expression (cid:28)wages (cid:29) as defined in Section 2(1)(m), as held by a Division Bench of this Court, does not include the daily allowance paid or payable to the workman. Hence the learned Commissioner is not justified in taking into account the daily allowance while calculating the amount of compe nsation payable under Section 4(1)(a) of the Act. The monthly salary of the dece ased being Rs.2,500/-, the respondent No.1/claimant, therefore, would be entitle d to 50% of Rs.2,500/- i.e. Rs.1,250/- × 216.91 = Rs.2,71,137.50, which is round ed to Rs.2,71,138/-. The claimant shall also be entitled to a further sum of Rs. 2,500/- towards the funeral expense in terms of the provisions contained in Sect ion 4(4) of the Act. The claimant, therefore, would be entitled to a total sum o f Rs.2,73,638/- which amount will carry interest @12% per annum under Section 4A (3) of the Act from the date of filing the claim petition. Since the appellant has already deposited the entire awarded amount of R s.4,33,820/- and the claimant was allowed to withdraw 50% of the said amount, th e learned Commissioner Workmen’s Compensation shall release the amount, if any, to be paid to the claimant taking into account the claimant’s entitlement of Rs. 2,73,638/- with interest by an account payee cheque. While calculating the amoun t of interest payable, the learned Commissioner shall also keep in mind the date of deposit of the principal amount by the insurance company. The remaining amou nt shall be released in favour of the insurance company. The appeal is accordingly allowed to the extent as indicated above. No c ost. The Registry is directed to send down the records of W.C. Case No.71/200 0 (Rina Saikia Vs. Neugpiur & ors.), which record has been received though is no t the record required in the present appeal.