Mainoddin S/O Mahetab Shaikh vs Rajasaheb S/O Sheshrao Godse ...
2016 Latest Caselaw 2145 Bom

                                                                         604-07 FA.doc
                                                   1




                                                                               
              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                         BENCH AT AURANGABAD




                                                       
                              FIRST APPEAL NO.604 OF 2007

              Mainoddin S/o Mahetab Shaikh
              Aged - Major, Occupation - Service,




                                                      
              R/o Sai Road, Latur.                               ... Appellant
                                                                 (Orig. Claimant)
                       Versus




                                         
              Rajasaheb S/o Sheshrao Godse (Patil)
              Aged - 30 years, Occupation - Business,
                             
              Resident of - Adarsh Colony,
              Latur.                                ... Respondent
                                                                  (Orig. Employer)
                                             ...
                            
              Mrs. M.A. Kulkarni, Advocate for Appellants
                                          ...
                                   CORAM: P.R.BORA, J.
      


              Date of reserving the judgment  : 07th April, 2016
   



              Date of pronouncing the judgment: 02nd May, 2016
                                        ...
              JUDGMENT :

1) Heard the learned Counsel for the

appellant. None appears for the Respondent.

2) The original Claimant had filed the present

appeal, seeking enhancement in the amount of

compensation awarded to him by the Labour Court

and Commissioner for Workemen's Compensation,

Latur (herein after referred to as 'Commissioner') in

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W.C.(D) No.20/1996 decided on 11.07.1997.

3) The claimant (hereinafter referred to as the

employee) had met with an accident during the

course of his employment with the Respondent, his

left thumb was crushed. The Respondent (hereinafter

referred to as the employer) at his own deposited an

amount of Rs.17,500/- as amount of compensation

payable to the employee in the Court of

Commissioner for Workmen's Compensation at Latur.

It was contended by the employer that, he was

already paid Rs.10,000/- to the employee and

deducting the said amount, he has desposited the

amount of Rs.17,500/-. On service of notice from the

Court of Workmen's Compensation Commissioner, the

employee appeared in the matter and filed his say.

He disputed the amount amount of compensation

deposited by the employer. He claimed enhancement

in the compensation amount to the tune of Rs.

1,18,326/- with penalty and interest.

4) It was the contention of the employee

604-07 FA.doc

before the Commissioner that, he was receiving the

salary of Rs.2,000/- per month and that his age was

35 years. In order to prove his wages, the employee

himself deposed before the Commissioner and also

examined co-worker. The employer also deposed

before the Commissioner. The learned Commissioner

after having considered the oral and documentary

evidence brought before it, held the employee

entitled for the total compensation of Rs.41438.25 ps.

Deducting the amount paid by the employer to the

tune of Rs.27,500/-, the learned Commissioner passed

the order directing the employer to pay employee the

amount of Rs.13,938/-

5) Smt. M.A. Kulkarni, the learned Counsel

appearing for the appellant - employee submitted

that, the Commissioner has erred in determining the

amount of compensation. Learned Counsel submitted

that, inabsence of any documentary evidence on

record as regards to the wages of the employee, the

Commissioner must have determined the

604-07 FA.doc

compensation on the basis of minimum wages.

Learned Counsel submitted that, at the relevant time,

the minimum wages for a skilled workmen were Rs.

1,170/- per month, and accordingly the compensation

ought to have been awarded by the Commissioner.

Learned Counsel further submitted that, an amount of

Rs.10,000/- ig was paid by the employer to the

employee for medical expenses and was not liable to

be deducted from the total amount of compensation.

Learned Counsel, therefore, prayed for enhancement

of the amount of the compensation and the

modification of the award to that extent.

6) On perusal of the impugned Judgment, it is

revealed that, the Commissioner has erred in

determining the compensation by holding the

monthly wages of the employee to the tune of Rs.

750/- per month. Though it was the case of the

employee that, he was drawing the wages to the tune

of Rs.2,000/- per month, he could not bring on record

sufficient evidence to prove his wages. However, it

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has come on record in the cross-examination of the

employer that, the appellant - employee was

engaged on daily wages at the rate of Rs.35/- per day,

this evidence ought to have been considered by the

learned Commissioner. The learned Commissioner

ought to have held the monthly wages of the

employee to the tune of Rs.910/-, presuming that, in a

month, the work was being provided to the employee

for 26 days. The Tribunal has further erred in

deducting the amount of Rs.10,000/- which was said

to have been paid by the employer out of the Court to

the employee, said amount was not liable to be

deducted while determining the compensation.

7) It is not in dispute that, the appellant -

employee had incurred the disability to the extent of

50%. There is further no dispute that, age of the

employee at the relevant time was 40 years. Thus,

the relevant factor would be 184.17. Considering the

provisions of amended Workmen's Compensation Act,

60% of the monthly wages will have to be multiplied

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by the relevant factor so as to determine the amount

of payable compensation. Holding the monthly wages

of the appellant - employee to the tune of Rs.910/-

(35 X 26 = 910), 60% of it comes to Rs.546/-. If the

said amount is multiplied by the relevant factor, the

compensation amount comes to Rs.1,00,556.82

(546 x 184.17 = 1,00,556.82). Having regard to the

percentage of disability to the extent of 50%, the

employee is entitled to receive 50% of the said

amount, which comes to Rs.50,278/-. I hold the

appellant - employee entitled for to receive the said

compensation. As stated earlier, only the amount of

Rs.17,500/- would be liable to be deducted from the

said amount. Deducting the said amount, the

respondent - employer is liable to pay the balance

amount of Rs.32,778/- (50,278 - 17,500 = 32,778) to

the employee.

8) In so far as award of interest is concerned,

the appellant claimant is certainly not entitled for the

interest from the date of accident or from the date of

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filing of an application by him before the

Commissioner, for the reason that, more than nine

years delay has been committed by the claimant in

filing the present appeal. The claimant is not entitled

to receive any interest of the said period. The

claimant is however entitled to receive the interest

from the date of admission of the present appeal. In

the result, the following order:

ORDER

a) The appellant is held entitled for the total compensation of Rs.50,278/-.

b) Deducting the amount of Rs.17,500/- already paid, the respondent shall pay balance amount of Rs.32,778/- to the appellant claimant with the

interest thereon at the rate of 9% per annum from the date of admission of the present appeal i.e. 16.06.2007 till its actual realization.

c) The appeal stands partly allowed in the aforesaid terms.

( P.R.Bora ) Judge SPR