Oriental Insurance Company Ltd. v. Commissioner, Workmen’s Compensation, Nagaon

tion No.AS-02-A/2725. Mr. S.K. Goswami, learned counsel appearing for the petitioner s 4. ubmitted that the finding as regards the monthly wage of the deceased workmen ca nnot be sustained as the monthly wage has been assessed by including the daily a llowance. The Commissioner, Workmen’s Compensation has observed that the wife of the deceased workmen has categorically stated that her husband was employed as a driver in the vehicle under registration No.AS-02/A-2725 a Tata Sumo, owned by the respondent No.2 at a monthly salary of Rs.2,000/- in addition to the daily allowance of @Rs.50/- per day. She further stated that her husband was sent to Jorhat by his employer to drop some persons and her husband became untraced from then and later on his dead body was found near the bank of Bhogdoi river.

#5. It is clear from herein above that a sum of amount paid to a workman to Mr. S.K. Goswami’s contention is that the inclusion of the daily allowances is completely unacceptable in view of the decision of this Court in Oriental Insurance Co. Ltd. -Vs- Lakhimai Das and Anr. as reported in 2006(3) G LT 870 where this Court has held as under: (cid:28)12. cover any special expenses entailed on him by the nature of his employment is no t included in his (cid:28)wages (cid:29) for the purpose of the Act. From the nature of the emp loyment of the deceased, we have no hesitation to hold that the daily allowances by the claimant in her deposition would not form a part of the wages as defined under the Act. On a moderate estimate, we may take that a daily allowance of Rs .20/- was paid to the deceased. Resultants an amount of Rs.600/- can be safely d educted from the amount quoted by the claimant to be the income of the deceased per month. According to us, therefore, the wages for the purpose of computing th e compensation for the death of the deceased has to be taken as Rs.3000/- per mo nth. We are, therefore, of the view that the learned commissioners had erred in law and on facts in proceeding on the basis that the monthly wages of the deceas ed at the relevant time was Rs.3,500/-. (cid:29)

#6. This Court has given an anxious consideration to the submission of Mr. Goswami, learned counsel and has also critically examined the decision of Lakhimai Das (supra). In Lakhimai Das (supra) this High Court did not lay down any principle but has interpreted the provisions of law in the attendant circums tances of that particular case and held that a sum of amount paid to a workman t o cover any special expenses entailed on him by the nature of his would not incl ude in his (cid:28)wages (cid:29) for the purpose of determining the compensation. The said int erpretation does not restrict in any manner the definition of the (cid:28)wages (cid:29) as pro vided in Section 2(m) of the Workmen’s Compensation Act, 1923 which stipulates a s under: (cid:28)wages (cid:29) includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concess ion or a contribution paid by the employer of a workman towards any pension or p rovident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment (cid:29)

#7. In that case the tribunal found that the said daily allowance wa s a sum paid to the workman to cover the special expenses but it did not project that the daily allowance of all natures would be excluded from the wages. The w ages includes any privilege or benefit which is capable of being estimated in mo ney. In this regard a decision of the apex Court in Mohd. Ameeruddin and another Vrs. United India Insurance Co. Ltd. and another as reported in (2011) 1 SCC 30 3 is required to be referred to. The apex Court in Mohd. Ameeruddin (supra) held that: We are unable to appreciate the view taken by the High Court on both cou (cid:28)7. nts. First, there was no evidence that the daily allowance of Rs.50/- was not pa id 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, h old that the tribunal was right in assessing the monthly income of the deceased at Rs.4000/-. (cid:29) In the case in hand also there is no evidence that the daily all 8. owance as was being given to the workman was not given on everyday of the month or he was not working on everyday of the month. Therefore, in conjoint reading o f Section 2(m) as excerpted with Mohd. Ameeruddin (supra), it would be crystal c lear that ’wages’ would include the daily allowance unless it is demonstrated th at the said allowance is a part of a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment. 9. The appellant in the appeal did not make any endeavour to prove that the daily allowances as paid to the workmen was a sum paid to the workmen t o cover any special expenses entailed on him by the nature of his employment. Th e daily allowances therefore would include within the benefit as defined in Sect ion 2(m) of the Workmen’s Compensation Act, 1923 which is capable of being estim ated in money. It is held that the daily wages of the nature as the workman was being paid would include in the wages for the purpose of calculating the compens ation for death of the workman. 10. What has been submitted as regards the payment of the interest o n the awarded sum, cannot be accepted in view of Oriental Insurance Co. Ltd. v. Mohd. Nasir & Another as reported in (2009) 6 SCC 280 where it has been held t hat: (cid:28)50. hmed as reported in (2007) 2 SCC 349 it was held: Reliance has been placed on National Insurance Company Ltd. v. Musabir A ’9. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fel l due. The question of liability under Section 4-A was dealt with by this Court in Maghar Singh v. Jaswant Singh (1998) 9 SCC 134. By amending Act 30 of 1995, S ection 4-A of the Act was amended, inter alia, fixing the minimum rate of intere st to be simple interest @ 12. In the instant case, the accident took place afte r the amendment and, therefore, the rate of 12% as fixed by the High Court canno t be faulted. But the period as fixed by it is wrong. The starting point is on c ompletion of one month from the date on which it fell due. Obviously it cannot b e the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of ad judication of the claim made. The adjudication under Section 4 in some cases inv olves the assessment of loss of earning capacity by a qualified medical practiti oner. Unless adjudication is done, question of compensation becoming the due doe s not arise. The position becomes clearer on a reading of sub-section (2) of Sec tion 4-A. it provides that provisional payment to the extent of admitted liabili ty has to be made when employer does not accept the liability for compensation t o the extent claimed. The crucial expression is ’falls due’. Significantly legis lature has not used the expression ’from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise. As therein this aspect of the matter has not been considered, we are of the opin ion that interest will also be payable at the rate of 7‰% per annum from the dat e of filing of the application till the date of award. The rate of interest ther eafter shall be payable in terms of the order passed by the Commissioner. (cid:29)

#11. After analysis, the crucial expression ’falls due’ has been hel d to be from the date of the adjudication of the claim by the Commissioner, Work men’s Compensation and as such no interest can be paid by the employer till the day of adjudication as the employer was also not in the know what would be the c ompensation. Thus the insurer cannot escape their liability. The rate of interes t requires to be modified. 12. The claimant would be entitled to get interest @ 7‰% per annum f rom the day of filing of the claim petition i.e. 08.08.2001 till the day of adju dication i.e. 17.10.2003 and thereafter interest @12% per annum be paid to her o n the awarded sum till the payment is made. 13. For the reasons as discussed above, this Court did not find any substance in the appeal and as such the appeal shall stands dismissed with the m odifications as indicated. 14. The appellant is directed to make payment of the entire awarded sum with interest as modified before the Commissioner, Workmen’s Compensation wi thin a period of 30(thirty) days from today on deducting the sum, if any, alread y paid. There shall not be any order as to costs. Send down the LCRs forthwith.