United India Insurance Co. Ltd. v. Commissioner, Workmen’s Compensation, Kamrup, Guwahati

Mr. S.S. Sarma, learned senior counsel however urged that the ap [3] pellant would like to abandon the said substantial questions as taken in the mem orandum of appeal but would like to have the consideration of the appeal on the following substantial question of law. (1) Whether the wages of the workman would include the daily allowances? Mr. S.S. Sarma, learned senior counsel has referred the followin g finding of the Commissioner, Workmen’s Compensation. (cid:28)The Claimant/Petitioner stated that he was paid salary at the rate of Rs. 4,200 /- P.M. inclusive of daily allowances at the rate of Rs. 100/-. The O.P No. 1, a lso admitted that the Claimant was paid Rs. 4,200/- as salary per month includin g daily allowances (cid:29) It is clear from herein above that a sum of amount paid to a workman to Mr. Sarma, learned senior counsel thereafter to dilate his conte ntion relied on a decision of the Oriental Insurance Co. Ltd. Vrs. Lakhimai Das and Anr. as reported in 2006(3) GLT 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 amo8unt quoted by the claimant to be the income of the deceased per month. According to us, therefore, the wages for the purpose of computing t he compensation for the death of the deceased has to be taken as Rs.3000/- per m onth. 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 decea sed at the relevant time was Rs.3,500/-. (cid:29) [4] On the other hand, Mr. D. K. Saikia, learned counsel appearing f or the claimant-respondent submitted that on the basis of the opinion as rendere d by the qualified medical practitioner namely, Dr. Suresh Chandra Sarma, PW.2 t he Commissioner, Workmen’s Compensation has assessed the loss of earning capacit y in tune therewith. The PW.2 assessed the disability at 50% stating that the in jury caused the permanent partial disablement to the workman. Thereafter he asse ssed the loss of earning at 35%. There had been no suggestion from the appellant at the time of cross examination of the PW.2 that the said assessment of loss o f earning is defective or sustainable for any reason and as such the appellant c annot be allowed to raise the issue as the prescribed statutory procedure has be en strictly followed by the Commissioner, Workmen’s Compensation. Mr. Saikia, le arned counsel further submitted that the employer has come and by filing a writt en statement has categorically admitted that the claimant used to earn Rs.4200/- per month in the form of salary and daily allowance at the para-3 of the writte n statement. Mr. Saikia submitted further that there cannot be any dispute regar ding wages of the workman when the employer has admitted the wages by filing the written statement. [5] This Court finds sufficient substance in the submission of Mr. S aikia, learned counsel for the claimant-respondent and as such holds that the questions as raised in the appeal relating to the wages inclusive of the daily a llowances and the assessment of the loss of earning are devoid of any substance. The solitary question that now remains to be responded to is whether the wages of the workman would include daily allowance or not. This Court has given an anxious consideration to the submission [6] of Mr. Sharma, learned senior counsel and has also critically examined the decis ion 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 c ircumstances of that particular case and held that a particular sum of amount pa id to a workman to cover any special expenses entailed on him by the nature of h is employment is not to be included in his (cid:28)wages (cid:29) for the purpose of determinin g the compensation. The said interpretation does not restrict in any manner the definition of the (cid:28)wages (cid:29) as provided in Section 2 of the Workmen’s Compensation Act, 1923 which stipulates as 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) In that case this Court found that the said daily allowance was [07] a sum paid to the workman to cover the special expenses but it did not project t hat the daily allowance of all nature would be excluded from the wages. The wage s includes any privilege or benefit which is capable of being estimated in money . In this regard a decision of the apex Court in Mohd. Ameeruddin and another Vr s. United India Insurance Co. Ltd. and another as reported in (2011) 1 SCC 303 i s required to be referred to. The apex Court in Mohd. Ameeruddin (supra) held th at: (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) We are unable to appreciate the view taken by the High Court on both cou [08] In the case in hand also though there is no evidence that the da ily allowance 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 re ading of Section 2(m) as excerpted with Mohd. Ameeruddin (supra), it would be cr ystal clear that the wages would include the daily allowance unless it is demons trated that 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. [09] The appellant in this appeal did not make any endeavour to prove that the daily allowances as paid to the workmen was a sum paid to the workmen to cover any special expenses entailed on him by the nature of his employment. T hus, the daily allowances would include within the benefit as defined in Section 2(m) of the Workmen’s Compensation Act, 1923 which is capable of being estimate d in money. It is therefore held that the daily wages of the nature as the workm an was being paid would be included in the wages for the purpose of assessing th e compensation for the bodily injury as received by the workman. [10] For the reasons as discussed above, this appeal is devoid of any substance and as such is dismissed. However, there shall not be any order as to costs. [11] The appellant is directed to pay the awarded sum with interest i f not paid already before the Commissioner, Workmen’s Compensation, Kamrup, Guwa hati within a month from today. [12] Send down the LCRs forthwith.