The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.4 of 2020 (From the judgment dated 29th July, 2019 passed by the learned Commissioner for Employees Compensation-cum-Divisional Labour Commissioner, Cuttack in W.C. Case No.149-D/2000) Divisional Insurance Co. Ltd. Manager, National …. Appellant -versus- Tilotama Das and others …. Respondents Advocate(s) appeared in this case:- For Appellant
Legal Reasoning
“24. The question before the Bench in Valsala K. was clearly whether an amendment to Section 4 and 4-A of the 1923 Act enhancing the amount of compensation and the rate of interest would be applicable to cases where the accident took place prior to the coming into force of the amendment. The Bench held that the benefit of an amending Act enhancing the quantum of compensation would not apply to accidents that took place prior to the coming into force of the amendment. Though the learned Amicus Curiae sought to rely on the two-Judges Bench judgment of this Court in National Insurance Co. Ltd. v. FAO No.4 of 2020 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 Mubasir Ahmed, (2007) 2 SCC 349, it is sufficient at this stage to note that the subsequent judgment of this Court in Oriental Insurance Co. Ltd. v. Siby George, (2012) 12 SCC 540 noted that the judgment in Mubasir Ahmed is contrary to the judgments of this Court in Pratap Narain Singh Deo and Valsala K. and hence not a binding precedent. 25. The 1923 Act is a social beneficial legislation and its provisions and amendments thereto must be interpreted in a manner so as to not deprive the employees of the benefit of the legislation. The object of enacting the Act was to ameliorate the hardship of economically poor employees who were exposed to risks in work, or occupational hazards by providing a cheaper and quicker machinery for compensating them with pecuniary benefits. The amendments to the 1923 Act have been enacted to further this salient purpose by either streamlining the compensation process or enhancing the amount of compensation payable to the employee. 26. Prior to Act 45 of 2009, by virtue of the deeming provision in Explanation II to Section 4, the monthly wages of an employee were capped at Rs.4000 even where an employee was able to prove the payment of a monthly wage in excess of Rs.4000. The legislature, in its wisdom and keeping in mind the purpose of the 1923 Act as a social welfare legislation did not enhance the quantum in the deeming provision, but deleted it altogether. The amendment is in furtherance of the salient purpose which underlies the 1923 Act of providing to all employees compensation for accidents which occur in the course of and arising out of employment. The objective of the amendment is to remove an deeming cap on the monthly income of an employee and extend to them compensation on the basis of the actual monthly wages drawn by them. However, there is nothing to indicate that the legislature intended for the benefit to extend to accidents that took place prior to the coming into force of the amendment. FAO No.4 of 2020 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 xxx xxx xxx 31. The judgments in Rathi Menon v. Union of India, (2001) 3 SCC 714 and Union of India v. Rina Devi, (2019) 3 SCC 572 were both rendered by a Bench of two Judges of this Court. In Rina Devi, this Court resolved the apparent conflict between Rathi Menon and Kalandi Charan Sahoo v. South-East Central Railways, (2019) 12 SCC 387 by taking into account the judgments in Rathi Menon as well as the change in the position of law following the judgment. The position of law under the 1989 Act has thus been brought closer to the judgment of this Court in Pratap Narain Singh Deo which held that the date relevant for the determination of compensation would be the date of accident. The judgment in Rina Devi was recently followed by this Court in Union of India v. Radha Yadav, (2019) 3 SCC 410. the determination of 32. It is pertinent to note that no similar position of law for the higher amount of compensation payable was adopted under the 1923 Act by this court in Pratap Narain Singh Deo and Valsala K. This Court, being a Bench of two Judges, is bound by the categorical position of law laid down in Pratap Narain Singh Deo and Valsala K., both being judgments rendered by larger Benches of this Court. Consequently, we hold the determination of for that compensation payable is the date of the accident and the benefit of Act 45 of 2009 does not apply to accidents that took place prior to its coming into force. relevant date the 33. In the present case, the accident occurred on 31-1- 2008 i.e. prior to the coming into force of Act 45 of 2009. Consequently, the High Court erred in extending the benefit of Act 45 of 2009 which deleted Explanation II to Section 4, to the present case. The High Court was required to determine the compensation payable on the date of the accident on which date, the deemed cap of Rs.4000 as monthly wages was applicable.” FAO No.4 of 2020 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 8. Thus as per the law propounded above, the insurer is found justified in their contention that the enhanced amount of remuneration beyond Two Thousand Rupees, as was limited in Explanation-II on the date of accident, is not permissible. Considering the date of accident on 29.10.1999, the monthly income of the deceased should not exceed Rs.2000/- for the purpose of computation of the compensation amount. 9. It is needless to mention here that the prescription of maximum wage limit of Rs.2000/- as per the Explanation-II was again amended w.e.f. 8.12.2000 to enhance the same to Rs.4000/- 10. In the case at hand, though it has been brought in evidence by the wife of the deceased that the deceased was getting Rs.2600/- per month from his employer, but keeping in view the discussions made above, the same is limited to Rs.2000/- only. As regards the age factor, no dispute has been raised in respect of the same which comes to 189.56 taking the age of the deceased at 38 years on the date of accident. Thus the computation of compensation is made afresh which is as follows: “50% of monthly wage x age factor 189.56 = Rs.1000 189.56 x = Rs.1,89,560/-” (Rupees One Lakh Eighty-Nine Thousand Hundred Sixty) Five 11. The aforesaid amount is payable along 12% interest per annum from the date of accident till the date of deposit. FAO No.4 of 2020 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 12. Since the entire amount of compensation as per the direction of the learned Commissioner has already been deposited before the learned Commissioner, it is directed to disburse the compensation amount as afore-stated, i.e.Rs.1,89,560/- + interest @12% per annum, out of the amount deposited before the learned Commissioner along with accrued interest thereon, and the balance amount along with proportionate accrued interest thereon shall be refunded to the insurer, within a period of three months from today.
Arguments
: Mr.P.K .Mahali, Advocate For Respondents : Mr. K. Panigrahi, Advocate For Respondent Nos.1 to 5 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 15th December, 2023 B.P. Routray, J. 1. Present appeal by the insurer is directed against the judgment and award dated 29.7.2019 passed in W.C. Case No.149-D/2000 by the Commissioner for Employee’s Compensation-cum-Divisional Labour Commissioner, Cuttack, wherein compensation to the tune of Rs.8,32,925/- including interest has been granted to the claimants- Respondents No.1 to 5 on account of death of the deceased in course of FAO No.4 of 2020 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 and arising out of his employment as a helper in a Bus bearing Registration No.OAC-6317 belonging to Respondent No.6. 2. The deceased-workman died due to the accident dated 29.10.1999 when he was sleeping in the Bus in the night, in which he was employed, due to super-cyclone as the roof and luggage carrier of the Bus pressed him after it was broken. 3. The claimants are the wife and children of the deceased- workman and according to them, the deceased was getting Rs.2000/- per month as his wages for discharging his duties as a Helper in the Bus. 4. The main issue raised by the insurer is with regard to fixation of remuneration of the deceased at Rs.2600/- per month violating the maximum wage limit under Explanation-II to Section 4(1) of the Employees Compensation Act, 1923 (hereinafter stated as “the Act”), prevalent on the date of accident. 5. It is true that by way of Workmen’s Compensation (Amendment) Act, 1995 [30 of 1995], the words “Two Thousand Rupees” were substituted for the words “One Thousand Rupees”. The said Explanation-II of Section 4(1) of the Act was prescribing that, where the monthly wages of a workman exceeds Two Thousand Rupees, his monthly wages for the purposes of Clause (a) & (b) shall be deemed to be Two Thousand Rupees only. FAO No.4 of 2020 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Feb-2024 16:39:38 6. In the case of Pratap Narain Singh Deo v. Srinivas Sabata, 1976 (1) SCC 289 and Kerla State Electricity Board v. Valsala K., (1999) 8 SCC 254, the Supreme Court have held that the date relevant for determination of compensation payable under the 1923 Act is the date of the accident and that, the benefit of an amendment enhancing the amount of compensation shall not apply to accidents that takes place prior to its coming into force. 7. In the case of K. Sivaraman and others v. P. Sathish Kumar and another, (2020) 4 SCC 594, which was a case relating to compensation to the workman under the EC Act, 1923, the accident took place on 31st January, 2008 and the High Court of Madras in Madurai Bench enhanced the compensation granted by the Workman Commissioner taking the income of the deceased workman as per Notification dated 31st May 2010 issued after the 2009 Amendment Act. This was challenged before the Hon’ble Supreme Court. The Supreme Court on consideration of different other judgments including the case of Pratap Narain Singh Deo (supra) and Valsala K. (supra) held as follows:--
Decision
13. The appeal is allowed to the above extent. (B.P. Routray) Judge B.K. Barik/Secretary FAO No.4 of 2020 Page 7 of 7