New India Assurance Co. Ltd. v. Commissioner, Workmen’s Compensation, Kamrup, Guwahati

Mr. S. Dutta, learned counsel appearing for the appellant submit ted with sufficient vehemence that the Commissioner, Workmen’s Compensation has returned the following findings in complete defiance to the settled position of law: (cid:28)Although the monthly salary of Rs. 1000/- (Rupees one thousand) only as claimed by the claimant looks reasonable without doubt, the daily allowance of Rs. 100/ - per day as claimed by the petitioner in his capacity as a Handiman appears to be much exaggerated. In absence of any evidence to establish the monthly salary of the claimant we decline to accept Rs. 4,000/- (Rupees four thousand) only as monthly salary. Compared with the minimum wages fixed by Govt. for workers emp loyed in different categories of employment, the monthly salary of the claimant shall not be more then Rs. 3,000/-(Rupees three thousand) p.m including all all owances. (cid:29) On the basis of the said monthly wage the compensation was asses sed by the Commissioner, Workmen’s Compensation. It appears further that the Com missioner Workmen’s compensation has assessed the physical disability and the pe rcentage of the loss of earning capacity on the basis of the opinion made by a q ualified medical practitioner namely Dr. S. C. Sarma (PW.2) who had categoricall y stated that he assessed the physical disability at 40% and the loss of earning capacity at 30%. According to Mr. S. Dutta, learned counsel appearing for the a ppellant such assessment is completely erroneous. Mr. S. Dutta, learned counsel relied a decision of this Court in Oriental Insurance Co. Ltd. -Vs- Lakhimai Das and Anr. as reported in 2006(3) GLT 870 where this Court held as under: It is clear from herein above that a sum of amount paid to a workman to (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) On the basis of the said decision, Mr. Dutta, learned counsel ap pearing for the appellant categorically submitted that the daily allowances cann ot be included in the wages of the workman. [4] On the other hand, Mr. D. K. Saikia, learned counsel appearing f or the claimant-respondent submitted that the assessment of the wages of the wor kman as well as the compensation as determined by the Commissioner, Workmen’s Co mpensation cannot be faulted with. This Court has given an anxious consideration to the submission [5] of Mr. Dutta, learned counsel and has also critically examined the decision of L akhimai Das (supra). In Lakhimai Das (supra) this High Court did not lay down an y principle but has interpreted the provisions of law in the attendant circumsta nces of that particular case and held that a sum of amount paid to a workman to cover any special expenses entailed on him by the nature of his employment is no t to be included in his (cid:28)wages (cid:29) for the purpose of determining 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(m) 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) [06] In that case, this Court found that the said daily allowance was a sum paid to the workman to cover the special expenses but it did not project that the daily allowance of all nature would be excluded from the wages. The wag es includes any privilege or benefit which is capable of being estimated in mone y. In this regard a decision of the apex Court in Mohd. Ameeruddin and another V rs. United India Insurance Co. Ltd. and another as reported in (2011) 1 SCC 303 is required to be referred to. The apex Court in Mohd. Ameeruddin (supra) held t hat: (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 estimated in money. It is therefore held that the daily wages of the nature as the workma n was being paid would include in the wages for the purpose of calculating the c ompensation for the bodily injury as received by the workman. [10] In view of this, there is no substance in the submissions of Mr. S. Dutta, learned counsel appearing for the appellant. On a scrutiny of the dep osition of the PW2 it appears that for the appellant there had been no cross-exa mination to unearth the fact that whether the assessment of loss of earning was made as per the provisions of Section 4(1)(c)(ii) read with explanation II as pl aced thereunder or not. Even there is no suggestion to the PW2 whether he has ta ken care of the injuries as appearing in the Schedule-I as appended to the Workm en’s Compensation Act, 1923. Situated thus, this Court is reluctant to accept th e contention of Mr. Dutta, learned counsel appearing for the appellant regarding the assessment of the loss of physical ability and the earning capacity. Therefore, this appeal fails and accordingly, the same is dismis sed. However, there shall not be any order as to costs. [11] The appellant is directed to make payment of the entire awarded sum with interest @ 7‰% interest from the date of filing of the claim petition i .e. from 05.08.2003 and @12% from 22.02.2004 till the payment is made within a p eriod of 30 days from today, if not paid by now. [12] Send down the LCRs forthwith.