JUDGMENT S.T. Kharche, J.
1. Heard Mr. N. S. Bhattad, learned counsel for the appellant and Mr. S. R. Pathak, learned counsel for respondent No. 3.
2. This appeal is directed against the judgment and order dated 1-11-1999 passed by the Commissioner, Workmen Compensation in W.C.A. Case No. 42/94, whereby the Commissioner has directed respondent Nos. 1 to 3 to pay jointly and severally Rs. 29,882/- towards compensation plus Rs. 7,470/- towards 25% penalty and Rs. 2,537/- towards 6% interest, total amount of Rs. 39,891/- to the appellant.
3. The appellant is an employee working with the respondents No. 1 and on 15-1-1993 he met with an accident while discharging his duties and while he was in employment of the respondent. He had sustained injury to the thumb of the left hand and he was referred to Mayo Hospital. He was hospitalized for five days. His thumb of the left hand was required to be amputed. He had incurred the medical expenses of Rs. 1,000/- as well as Rs. 1,200/- on account of Rickshaw fare. It was contended that he was getting wages Rs. 960/- p.m. and his age was 18 years. He had put forth the claim of Rs. 1,84,000/- with interest and penalty. The respondents resisted the claim and contended that the appellant was getting wages Rs. 730/- per month, though there is no dispute that he was of the age of 18 years. The accident took place and the appellant had sustained the injuries is also not in dispute. However, according to the respondents, the calculation of the compensation was worked out to Rs. 34,852/- which has been deposited in the Court of Compensation Commissioner on 18-6-1984. It is further contended that the respondents are not liable to pay the compensation as claimed by the appellant.
4. The Commissioner, on appreciation of the evidence granted compensation to the appellant as mentioned above. This judgment and order of the Commissioner is under challenge in this second appeal.
5. Mr. Bhattad, learned counsel for the appellant contended that the compensation is payable in accordance with the provisions of Sections 4 and 5 of the Workmen's Compensation Act (for short the Act). He contended that workman is entitled to receive compensation on the basis of minimum wages as notified, irrespective of the fact, whether actual wages paid are less than minimum wages. In this case the compensation paid to the appellant is not on the basis of minimum wages. He contended that the respondent is a scheduled industry under the Minimum Wages Act and at the relevant time the minimum wages were fixed at Rs. 960/- per month and the compensation ought to have been awarded after taking into consideration this minimum wages. He further contended that the compensation awarded by the Commissioner is liable to be enhanced or the matter may be remanded to the Commissioner for fresh decision, in accordance with the law. In support of these contentions, he relied on the decision of Punjab High Court in the case of Chopra Printing Press v. Des Raj, 1964 (I) L.L.J. 658 and K. P. Kurian v. The Managing Partner, Hindustan Shipping Co., 1975 Lab.l.C. 130.
6. Mr. Pathak, learned counsel for respondent No. 3 contended that the compensation awarded by the Commissioner is in accordance with the provisions of Section 4 of the Act and the Commissioner has rightly calculated the amount of compensation because the accident occurred prior to the amendment. As per Clause (a) of Section 4 of the Act, the amount of compensation would be equal to 50% of the monthly wages multiplied by relevant factor. He contended that 50% of Rs. 660/- would come to Rs. 330/- per month and by multiplying to Rs. 330/- by relevant factor, it comes to Rs. 74,705.40/- Ps. He further contended that no case has been made out for interference into the impugned judgment and order passed by the Commissioner and the appeal may kindly be dismissed.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. There is no dispute that the appellant was working with the respondents and he met with an accident on 15-1-1993. He had sustained injuries to his thumb which was required to be amputed, in the hospital. The Commissioner has calculated the amount of compensation on the basis of Clause (a) of Section 4 of the Act and 50% of the wages worked out to Rs. 330/- which was multiplied by the relevant factor and granted the compensation.
8. The Punjab High Court in the case of Chopra Printing Press v. Des Raj (cited supra) observed that; a workman is entitled to receive higher wages under the notification under the Minimum Wages Act but actually paid lesser salary, held, entitled to be paid compensation under the provisions of the Workmen's Compensation Act on the basis of such higher wages and not on the basis of lesser wages actually drawn by him at the time of the accident.
9. However, the Kerala High Court in the case of K. P. Kurian v. The Managing Partner, Hindustan Shipping Co. (cited supra) observed that; the amount of compensation should be worked out on the basis of Schedule IV, and therefore, if the actual compensation claimed by the Commissioner is less than the compensation payable under the Act, the Commissioner would not be competent to award less compensation.
10. In the present case, the applicant himself has led the evidence and admitted that he was drawing monthly wages Rs. 660/- and no evidence has been led to show as to what were the minimum wages declared by the Government to which the petitioner was entitled. The accident occurred on 15-1-1993 and in absence of any evidence to show as to what were the minimum wages payable to the appellant on 15-1-1993, it is not possible to accept the contentions of the learned counsel for the appellant that the amount calculated and awarded by the Commissioner is not just, fair and reasonable.
11. The Commissioner has specifically observed that the accident occurred on 15-1-1993, and therefore, the amount of compensation will have to be calculated in accordance with the provisions of Clause (a) of Section 4 of the Act and since the appellant was drawing the wages of Rs. 660/- per month, the amount of compensation would be equal to 50% of the monthly wages multiplied by relevant factor and taking into consideration the provisions of the Act, before amendment of Section 4 has worked out the compensation and in such circumstances, it is obvious that no case has been made out for interference. However, since the accident occurred in the year 1993 and the compensation was awarded in the year 1999 and thereafter this appeal is filed, it is not possible to remand the matter to the Commissioner for taking decision afresh especially when this Court do not find any error in the judgment and order passed by the Commissioner.
12. The appeal stands dismissed.