Bombay High Court
The New India Assurance Co. Ltd vs Mehrajbi Shafi Saiyyad And Others on 25 March, 2021
Bench: Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2293 OF 2016
The New India Assurance Company Ltd.,
A Subsidiary of the General Insurance
Company of India Ltd., having one of its
Divisional Office at Adalat Road,
Aurangabad - Through its
Authorized Signatory.
...APPELLANT
VERSUS
(1) Mehrajbi Shafi Saiyyad,
Age-30 years, Occu:Household,
R/o-Mullawada, A.P. Erandol,
Dist-Jalgaon,
(2) Rehan Shafi Saiyyad,
Age-05 years, U/g of Resp. No.1,
(3) Kamarunisabi Rashid Saiyyad,
Age-60 years, Occu:Household,
R/o-As Above,
(4) Rashid Ismail Saiyyad,
Age-65 years, Occu:Nil,
R/o-As Above,
(5) Sayyad Bashir Sayyad Ismail,
Age-Major, Occu:Vehicle Owner,
R/o-House No. 1422, Mulla Wada,
A.P. Erandol, Dist-Jalgaon
...RESPONDENTS
(Resp. Nos. 1 to 4-Orig. Claimants
Resp. No. 5 -Orig. Resp. No.1).
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...
Mr.A.B. Kadethankar Advocate for Appellant.
Mr.M.M. Bhokarikar Advocate for Respondents No. 1 to 4.
Mr.Deepak Joshi Advocate for Respondent No. 5.
...
WITH
FIRST APPEAL NO.3926 OF 2016
1) Smt. Mehrajbee Shafi Sayyad,
Age-30 years, Occupation:Household,
2) Chi. Rehan Shafi Sayyad,
Age-5 years, Occupation:Education
(Appellant No. 1 is the natural guardian as
mother of appellant No. 2 hence representing)
3) Sau. Kamarunisabi Rashid Sayyad,
Age-60 years, Occupation:Household,
4) Shri. Rashid Ismail Sayyad,
Age-65 years, Occupation:Nil,
All R/o-Mullawada, Taluka-Erandone,
Dist-Jalgaon.
...APPELLANTS
(Orig. Claimants)
VERSUS
1) The New India Assurance Company Ltd.,
Through its Senior Divisional Manager,
Adalat Road, Aurangabad.
2) Shri Saiyyad Bashir Saiyyad Ismail,
Age-Major, Occu:Truck Owner, Business,
R/o-House No. 1422, Mullawada,
Erandole, Dist-Jalgaon
...RESPONDENTS
(Orig. Respondents)
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...
Mr.M.M. Bhokarikar Advocate for Appellants.
Mr.A.B. Kadethankar Advocate for Respondent No. 1.
Mr.Deepak Joshi Advocate for Respondent No. 2.
...
CORAM: ANIL S. KILOR, J.
DATE : 25th MARCH, 2021
ORAL JUDGMENT :
1. Both these first appeals which are filed at the behest
of insurance company as well at the behest of the claimants
respectively, are taken together for hearing as in both these
appeals the question is raised to the correctness and legality of
the Judgment and order dated 25th March 2015 passed by the
Commissioner for Workmen's Compensation and Judge, Labour
Court at Jalgaon in Application WCA No. 28 of 2013.
2. In the First Appeal No.2293 of 2016 filed by the
insurance company, the insurance company is praying for
quashing and setting aside the impugned Judgment and order,
whereas in the First Appeal No.3926 of 2016 filed by the
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claimants, they are claiming enhancement of amount of
compensation on the ground that the amount of 'Bhatta' which
the deceased used to receive, was not taken into consideration
by the learned Commissioner while determining the annual
income of the deceased.
3. I have heard the learned counsel for the respective
parties.
4. The brief facts of the present case are as follows (the
parties are referred as per their status before the
Commissioner). It is the case of the claimants that husband of
claimant No. 1, namely Shafi Rashid Saiyyad was working as a
driver on the truck of respondent No. 1, bearing registration No.
MH-18/M-1930 since last 2 to 2 and 1/2 years and he was
drawing salary of Rs.8,000/- per month. On a fateful day i.e. 6th
June 2012 when the deceased Shafiq was proceeding from
Jalgaon to Silvasa (Gujrat) by carrying goods in the offending
truck, at that time assistant driver Hasan Mehboob was driving
the truck and at 3.30 a.m. the said driver Hasan drove the
vehicle in rash and negligent manner, due to which offending
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truck got turtled and husband of claimant No. 1 died in the said
accident.
5. The truck was owned by respondent No. 1 and it was
insured with respondent No. 2. The deceased, on the date of
accident, was 35 years old and since he was in the employment
of respondent No. 1, claim petition was filed under Section 22 of
the Workmen' Compensation Act, 1923.
6. Learned Commissioner and Labour Court at Jalgaon,
after scrutinizing oral as well as documentary evidence brought
on record by the respective parties, partly allowed the claim
petition and held the claimants entitled for Rs.7,28,560/-
towards workmen's compensation along with interest at the rate
of 12% .
7. Feeling aggrieved by the said Judgment and order
dated 25th March 2015, both these appeals are filed.
8. Shri Kadethankar, learned counsel for the insurance
company submits that though the deceased was in the
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employment of respondent No. 1 but at the time of accident he
was not driving the vehicle and therefore as per the policy the
insurance company is not liable to pay any amount towards
compensation for the death of the deceased.
9. Shri Kadethankar, learned counsel for the insurance
company further opposes the prayer of the claimants in respect
of enhancement of compensation and he submits that at the
relevant time there was a cap for total salary and said cap was
for Rs.8,000/-, therefore, learned Tribunal has rightly considered
the monthly salary of deceased as Rs.8,000/- while determining
the annual income of the deceased. It is submitted that in
absence of any evidence in respect of payment of 'Bhatta' to the
deceased, allowing the enhancement by taking into consideration
the amount of Bhatta is not permissible.
10. Per contra, Shri Bhokarikar, learned counsel for the
claimants opposed the appeal of insurance company and submits
that the employer i.e. respondent No. 1 has stated in his written
statement that the deceased was driving the vehicle at the time
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relevant time and therefore the Commissioner has rightly
granted the compensation.
11. It is submitted that there is no dispute that one
driver was covered under the insurance policy and in the present
matter though at the time of accident two drivers were in the
truck and the policy is only in respect of one driver, for any
reason whatsoever the insurance company cannot deny its
liability as regards one driver. For this purpose, he has placed
reliance on the Judgment of Single Bench of this Court in the
case of Shaikhar Sadanand Ghortane vs. Smt. Savita
Mahadeo Gaikwad1
12. Shri Bhokarikar, learned counsel for the claimants
further submits that there was certificate filed on record showing
that the deceased was receiving Rs.8,000/- towards salary and
in addition he used to receive Rs.100/- per day towards Bhatta
and the said amount has not been considered by the Tribunal on
an erroneous count that no evidence has been produced by the
claimants. It is submitted that while calculating the income of
1 2010 (2) AIR Bom. R 515
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the deceased, because 'Bhatta' is a part of the same, the
Commissioner ought to have considered the case of the
claimants as regards 'Bhatta'. For this purpose, he has placed
reliance on a Judgment of the Hon'ble the Supreme Court of
India in the case of Jaya Biswal and others vs. Branch
Manager, IFFCO TOKIO General Insurance Company Ltd.
and another2. He has also relied upon the Judgments of
Himachal Pradesh High Court and Rajasthan High Court on the
said issue.
13. To consider the rival contentions of the parties, I
have gone through the record and proceedings of the
Commissioner and Judge, Labour Court and also perused the
Judgment impugned in the present appeals.
14. As regards the first contention of the learned counsel
for the insurance company, Shri Kadethankar, that though the
deceased was covered by the insurance policy as a driver, but
because he was not driving the offending truck at the relevant
time, he is not covered by the insurance policy, cannot be
2 AIR 2016 S.C. 956
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accepted in view of the law laid down in the case of Shaikhar
Sadanand Ghortane vs. Smt. Savita Mahadeo Gaikwad
(supra), wherein the learned Single Judge of this Court has held
thus:
"8. There is no dispute that the owner of the truck had
drawn Insurance Policy. The learned counsel for the
appellant submits that the Policy shows that one driver is
covered by the Policy of the Insurance Company. He
submits that therefore, the Insurance Company is liable
to reimburse the owner in respect of at least one driver.
There is a finding of the Motor Accident Claims Tribunal
as observed earlier that the deceased was travelling in
the truck as a driver though, he was not actually driving
the truck. The learned Judge of the Motor Accident
Claims Tribunal rejects the claim against the Insurance
Company because the deceased was not a person sitting
on the steering wheel and actually driving the vehicle. He
holds that it is that person alone, who could be said to be
covered by the Insurance Policy. The reasons as given by
the learned Judge cannot be accepted because such
interpretation does not appear to me to be reasonable.
The provisions of the Motor Vehicles Act in the form of
Sections 140 to 168 are in the form of beneficial
legislation. Therefore, liberal interpretation and an
interpretation which would further ends of the such
legislation has to be given. To my mind there could be as
many drivers on truck as the owner may decide to have
but only that number of drivers would stand covered for
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whom the premium is paid. If the premium is paid for
one driver alone, one person or one driver would be
covered irrespective of the fact that two drivers may
have died in the accident. In the instant case, there were
two drivers engaged and premium for only one driver
has been paid. The claim is only in respect of only one
driver. Therefore, to my mind the Insurance Company
cannot escape the liability. Had both the drivers died
then the Insurance Company could have contended that
it is not liable to reimburse in respect of both the drivers
but in respect of one alone. Since in this case, one out of
the two drivers engaged died and claim is laid for only
one, the Insurance Company certainly is liable to
reimburse. I find substance in the submission of the
learned counsel for the appellant. I, therefore, allow the
appeal and direct opponent No. 2 the Insurance
Company to reimburse opponent No. 1 i.e. to pay the
compensation as directed by the Motor Accident Claims
Tribunal to the claimants. No order as to costs."
15. On the aforesaid touchstone, if the facts of the
present case are considered, it is clear that though two drivers
were travelling in the offending truck and one was driving the
vehicle, irrespective of the fact whether deceased driver was
driving the vehicle or not, the deceased is covered by the
insurance policy, as it is not the case that the policy covers the
insurance of one driver and the claim is made in respect of two
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drivers. In that view of the matter, since as per the policy one
driver is covered, the Commissioner has rightly held the
insurance company liable to make the payment in this regard.
16. In the circumstances, the appeal filed by the
insurance company fails.
17. As regards the enhancement of compensation is
concerned, the certificate issued by the employer is available on
record as document Exhibit C-10 which states that the deceased
driver used to receive Rs.100/- per day towards 'Bhatta' in
addition to his salary of Rs.8,000/- per month. Though the
Commissioner has observed in the impugned Judgment and
order that there was a cap of Rs.8,000/- for the salary at the
relevant time, however, the amount of 'Bhatta' is allowance other
than salary and therefore, there is no bar to consider the amount
of 'Bhatta' while considering the income of the deceased. In this
regard, in a case of Jaya Biswal and others vs. Branch
Manager, IFFCO TOKIO General Insurance Company Ltd.
and another, supra, the Hon'ble the Supreme Court of India in
Para 23 of the Judgment, has observed thus:
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"23. Since neither of the parties produced any document
on record to prove the exact amount of wages being
earned by the deceased at the time of the accident, to
arrive at the amount of wages, the learned
Commissioner took into consideration the fact that the
deceased was a highly skilled workman and would often
be required to undertake long journeys outside the state
in the line of duty, especially considering the fact that the
vehicle in question had a registered National Route
Permit. The wages of the deceased were accepted as
Rs.4,000/- per month + daily bhatta of Rs.6,000/- per
month, which amounts to a total of Rs.10,000/-.
......................................"
18. In the said case, the Hon'ble the Supreme Court of
India has taken into consideration the total income as
Rs.10,000/- after taking into consideration the amount of
'Bhatta' as Rs.6,000/-.
19. Similarly, in the case of Savitri Devi vs. Bharti
Filling Station and another3, the learned Single Judge of
Himachal Pradesh High Court in Para 23 of the Judgment, has
observed thus:
3 2015(3) LLJ 662
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"23. In the case of Basantabai and another v.
Shamim Bee and another, reported in 2012 ACJ
1858 (Vol.3), the learned Single Judge of the Madhya
Pradesh High Court, Indore Bench, has held that 'bhatta'
received by deceased should form part of his income
while computing compensation. It has been held as
follows:
"(3) In respect of income of the deceased it is submitted
that deceased was working as cleaner on the truck
bearing registration No. MP 13-E 0553 and during the
course of employment he met with an accident in which
he sustained grievous injuries. During the treatment on
10.10.2005 he died at Government Hospital, Mandsaur.
At the time of death he was 18 years of age and his
salary was Rs.4,000 per month. Apart from his salary he
was getting the dainik bhatta of Rs.50 per day. Exhs. P1
to P7 are the documents in respect of wages of the
deceased. Learned counsel for the appellants submits
that Basantabai in her statement has deposed that
income of the deceased was Rs.3,000 per month, but
she in her evidence has not stated that the deceased was
not getting Rs.50 per day as bhatta and submitted that
the learned Commissioner wrongly disbelieved the said
part of the evidence and assessed his income at
Rs.3,000/- per month.
(4) On the other hand, Mr. M. Upadhyay, learned counsel
for respondent insurance company, supported the order
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passed by Commissioner and submitted that bhatta is
not a part of wages as defined in clause (m) of sub-
section (1) of section 2 of the Workmen's Compensation
Act, 1923. This question was considered by the Division
Bench of Madhya Pradesh High Court at Gwalior Bench in
the case of Shakuntala v. Kanna Dangi, 2007 ACJ
2486. Para 11 which is relevant reads as herein-below:
To determine the question whether the bhatta (daily
allowance) is a part of wages for computing the
compensation under Motor Vehicles Act and ultimately to
determine the question of wages of a driver, we have to
consider the evidence and if it has come in the evidence
that he was also getting Rs.50 per day as daily
allowance, whether the same can form part of wages.
The term 'wages' has been defined in many Central Acts,
such as, under the Payment of Wages Act, 1936; the
Minimum Wages Act, 1948, the Industrial Disputes Act,
1947; and under the Workmen's Compensation Act,
1923, which are as under: Payment of Wages Act, 1936:
Section 2(vi)--'wages' means all remuneration (whether
by way of salary allowance, or otherwise) expressed in
terms of money or capable of being so expressed which
would, if the terms of employment, express or implied,
were fulfilled, be payable to a person employed n respect
of his employment or of work done in such employment
and include--
(a) xxx
(b) xxx
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(c) any additional remuneration payable under the terms
of employment (whether called a bonus or by any other
name):
(d) xxx
(e) xxx
Minimum Wages Act, 1948:
Section 2(h)--'wages' means all remuneration, capable of
being expressed in terms of money, which would, if the
terms of the contract of employment, express or implied,
were fulfilled, be payable to a person employed in
respect of his employment or of work done in such
employment and includes house rent allowance, but does
not include--
(I) the value of
(a) xxx
(b) any other amenity of any service excluded by general
or special order of the appropriate Government;
(ii) xxx
(iii) any travelling allowance or the value of any travelling
concession;
(iv) any sum paid to the person employed to defray
special expenses entailed on him by the nature of his
employment; or
(v) xxx
Industrial Disputes Act, 1947:
(rr) 'wages' means all remuneration capable of being
expressed in terms of money, which would, if the terms
of employment, expressed or implied, were fulfilled, be
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payable to a workman in respect of his employment or of
work done in such employment and includes:
(i) such allowances (including dearness allowance) as the
workman is for the time being entitled to;
(ii) xxx
(iii) xxx
Workmen's Compensation Act, 1923:
(m) 'wages' includes any privilege or benefit which is
capable of being estimated in money, other than a
travelling allowance or the value of any travelling
concession or a contribution paid by the employer of a
workman towards any pension or provident fund or a
sum paid to a workman to cover any special expenses
entailed on him by the nature of his employment; From a
bare reading of the definitions of 'wages' under the
Minimum Wages Act, 1948, Industrial Disputes Act, 1947
and the Workmen's Compensation Act, 1923, it is amply
clear that the 'wages' means all remuneration whether
by way of salary, allowance or otherwise expressed in
terms of money or capable of being so expressed,
payable to a person employed in respect of his
employment or of work done in such employment and
includes any additional remuneration, any travelling
allowance or the value of any travelling concession or
any sum paid to the employed person to defray special
expenses entailed on him by the nature of his
employment, shall form part of the wages. These
definitions are quite exhaustive and it prima facie
appears that any amount paid to the driver either as
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additional remuneration payable in terms of employment
or any travelling allowance or any sum paid to the
employed person to defray special expenses entailed on
him by the nature of his employment, would be included
in the definition of 'wages'. Therefore, any bhatta or
daily allowance that is paid to the driver under any
special contract as additional remuneration or as daily
allowance may be considered as part of the wages but if
any sum is paid for defraying any expenses towards food
as and when the driver will go outside the city then it
may not form part of the wages. For that the claimant
has to prove that the amount of daily bhatta is paid as
additional remuneration or as travelling allowance and it
may depend from case to case and on the nature of the
vehicle as well as the nature of duties and if it is found
proved that the bhatta is paid as additional
remuneration under the terms of contract for the
purposes mentioned in the definition of 'wages' then as
per the evidence on record the court may include the
aforesaid bhatta as part of wages.
(6) For the above-mentioned reasons, the substantial
question of law No. 2 framed by this court is answered in
favour of the appellants by holding that bhatta is part of
the wages for the purpose of computation of
compensation."
20. In the case of National Insurance Company Ltd.,
vs. Smt. Udi Bai and others, learned Single Judge of
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Rajasthan High Court Para 7 and of the Judgment, has observed
thus:
"7. As far as the contention that the daily allowance of
Rs.50/- paid to the deceased-driver besides fixed montly
salary of Rs. 3,000/- which according to learned counsel
for the appellant was in the nature of travelling
allowance is concerned, the same is not sustainable. The
said allowance of Rs.50/- paid to the driver on daily
basis was neither described to be travelling allowance,
nor established to have been paid as a travelling
allowance. The definition of the wages as given in
Section 2(m) of the Act reads as under:
"2(m) - "wages", includes any privilege or benefit which
is capable of being estimated in money, other than a
travelling allowance or the value of any travelling
concession or a contribution paid by the employer of a
workman towards any pension or provident fund or a
sum paid to a workman to cover any special expenses
entailed on him by the nature of his employment."
8. The wages, therefore, includes any privilege or
benefit, which is capable of being estimated in terms of
money, other than travelling allowance, or value of
travelling concession, or contribution towards pension,
or provident fund, or any sum paid to cover and special
expenses entailed by nature of his employment. The
daily "Bhatta" (भत्ता) or daily allowance of Rs.50/- paid to
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the driver/s is usually paid to him to meet their food
expenses. The travelling allowance could only be paid for
meeting incidental commuting expenses, which was not
even the case set up by the employer in the present
case, therefore, the daily " Bhatta " (भत्ता) or daily
allowance is in nature of daily allowance paid otherwise
than by way of travelling allowance, and has been
rightly treat as part of 'wages' by the learned
Commissioner. This certainly was a privilege of benefit
given to the deceased workman during the course of his
employment, which is only capable of being quantified in
terms of money but was so quantified at Rs.50/- per
day. The monthly wages thus arrived at Rs.4500/- has
rightly been kept at Rs.4,000/- per month in terms of
explanation (ii) to Section 4(1)(b) of the said Act, which
reads as under:
"Explanation II.-Where the monthly wages of a workman
exceed [four thousand rupees], his monthly wages for
the purposes of clause (a) and clause (b) shall be
deemed to be [four thousand rupees] only."
Thus, there is no error found in the order of the learned
Workmen Compensation Commissioner when he has
included the daily allowance of Rs.50/- while computing
the monthly wages of the workman to determine the
total compensation amount."
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21. In the circumstances, I am of the opinion that the
finding recorded by the learned Commissioner and Judge, Labour
Court that there is no document available on record to show that
the deceased used to receive 'Bhatta', is contrary to record as
the certificate Exhibit C-10 is on record. Moreover, from the
above referred Judgments it is clear that the claimants are
entitled for compensation after considering the amount of salary
and 'Bhatta' as income of the deceased.
22. Having observed so, I am of the considered view that
the claimants are entitled for enhancement of compensation and
in that view of the matter, First Appeal No. 3926 of 2016 needs
to be partly allowed, and the impugned Judgment 25th March
2015 passed by the Commissioner for Workmen's Compensation
and Judge, Labour Court at Jalgaon in Application WCA No. 28 of
2013 needs to be modified as under:-
Age X 50% of + 50% of Bhatta Total
factor monthly salary
194.64 4000 1500 Rs.10,70,520
- Rs.7,78,560
Enhance Amount = Rs.2,91,960
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23. Accordingly First Appeal No. 2293 of 2016 is
dismissed.
24. First Appeal No. 3926 of 2016 is partly allowed with
modification in above terms.
25. The Insurance Company is directed to deposit the
amount granted towards enhanced compensation along with
interest at the rate of 12% from 6 th July 2012 till its realization,
within two months from the date of this Judgment, before the
Commissioner for Workmen's Compensation and Judge, Labour
Court at Jalgaon.
26. The claimants are permitted to withdraw the amount
on deposit of amount before the Commissioner for Workmen's
Compensation and Judge, Labour Court at Jalgaon by the
Insurance Company.
[ANIL S. KILOR, J.]
asb/MAR21
