New India Assurance Co. Ltd. vs Babita Mishra & Ors.
2014 Latest Caselaw 1173 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         FAO 445/2010
%                                              5th March, 2014

NEW INDIA ASSURANCE CO. LTD.                 ......Appellant
                 Through: Mr. D.D.Singh and Mr. Navdeep
                           Singh, Advocates.


                          VERSUS

BABITA MISHRA & ORS.                                        ...... Respondents
                  Through:               Ms. Monika, Adv. for Mr.
                                         S.N.Parashar, Advocate for R-1 to 5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This first appeal is filed under Section 30 of the Employee's

Compensation Act, 1923 impugning the judgment of the Commissioner

dated 9.9.2010 by which the claim petition filed by the claimants,

respondents no.1 to 5 herein was allowed by awarding compensation of

Rs.4,24,387/-. It is not in dispute that the deceased employee Sh. Dalip

Kumar Mishra was working as a driver with respondent no.5 herein and

while performing his duties of driving the vehicle no.DL-DIM-0606 on

14.2.2008 he was kidnapped alongwith the vehicle and thereafter found

FAO 445/2010                                                                Page 1 of 6
 murdered. FIR was registered at police station Seema Puri, Delhi vide FIR

No.56/2008 dated 15.2.2008. The body of deceased Dalip Kumar Mishra

was subsequently recovered by the police officials.       The claim petition

thereafter came to be filed.


2.    The Commissioner has noted that there is no dispute as to relationship

of employer and employee as also the fact that the accident resulting in the

death of the deceased employee Sh Dalip Kumar Mishra arose out of and in

the course of employment. These aspects are also not disputed before me.

3.    Counsel for the appellant-insurance company before me has urged the

following aspects:-


(i)   Since the admitted wages of the deceased employee were Rs.2500/-

per month, Commissioner erred in taking the wage at the minimum wages

figure of Rs.4057/-. Counsel for the appellant also urges that in this case the

Commissioner should have taken the wage at Rs.2500/- which is the figure

of wages admitted by the employer and not the minimum wage of Rs.4057/-.

It is further argued that maximum wages as per the Act as applicable on the

date of the accident was a sum of Rs.4000/- in terms of Explanation II of

Section 4(1), and which can only be payable once wages are proved to be

higher than Rs.4000/-, however, the wages are only Rs.2,500/- in this case.
FAO 445/2010                                                                Page 2 of 6
 (ii)     The age of the deceased has wrongly been taken at 30 years at the

time of his death on 14.2.2008 although the documents filed by respondent

nos. 1 to 5 before the Commissioner i.e the election identity card as also the

ration card showed that the deceased was 34 years of age at the time of his

death.


(iii)    Since the employer had paid a sum of Rs.2 lacs to the employee, the

appellant-insurance company is liable for adjustment of this amount against

the compensation granted.

4.       So far as the first argument of the Commissioner having taken the

minimum wages and not actual wage of Rs.2500/-, when the attention of the

counsel for the appellant was drawn to Section 4(1)(B) of the Employee's

Compensation Act, 1923, the argument urged could not be seriously pressed

because as per the provision of Section 4(1)(B) the wages which are to be

taken for purposes of Section 4(1)(B) to determine compensation will have

to be the wages as fixed by the government i.e minimum wages.

Accordingly, the Commissioner has committed no illegality in taking the

wages for calculation of compensation under Section 4(1) at the figure of

minimum wages of Rs.4057/-. After the judgment was dictated, counsel for

the appellant pointed out that Section 4(1)(B) was not existing when the

FAO 445/2010                                                               Page 3 of 6
 accident took place on 14.2.2008 and therefore the issue has again been

considered. This argument urged on behalf of the appellant-insurance

company is also misconceived for the reason that though the employer

claimed that the wage weres Rs.2500/-, no evidence was led to prove this

fact. Although, respondent nos. 1 to 5 claimed that the deceased was earning

Rs. 6000/- even they did not file any documentary evidence.              The

Commissioner has therefore in my opinion, taken the minimum wage which

is due and payable in law, and considering that there is only a difference of

Rs.57 between the figure of Rs.4000/- as per Explanation II to Section

4(1)(a) of the Act and the figure of Rs.4057/- taken by the Commissioner, I

do not think that it is necessary to disturb the finding of the Commissioner

taking the monthly wage figure at the minimum wage figure of Rs.4057.


5.    So far as the second argument is concerned, the argument has merit

because the age of 30 years as found by the Commissioner is on the basis of

the driving licence of the deceased, however, the respondent nos. 1 to 5 have

themselves filed the ration card and election identity card both of which

have more authenticity than the driving licence, and which documents

showed that the deceased was not 30 years old but was 34 years of age at the

time of his death.     Once that is so, the factor of determining the

FAO 445/2010                                                              Page 4 of 6
 compensation will be lesser and accordingly, it is held that in the present

case, the factor would be 199.40 for the age of 34 years and the

Commissioner will now re-calculate the compensation taking the age of the

deceased as 34 years and taking the factor as 199.40.


6.    The third argument urged on behalf of the appellant is misconceived

because the liability of the appellant-insurance company is in terms of the

insurance policy and as per which the insurance company is liable to make

payment of compensation which is payable by the employer on account of

an accident arising under the Employee's Compensation Act, 1923. This

aspect was not disputed before me but what was argued was that once Rs. 2

lacs was paid by the employer, then, the entire compensation amount could

not be awarded, against the appellant- insurance company. In my opinion,

the issue can be resolved by ordering that out of the total compensation

which has to be paid under the amount awarded after re-calculation by

taking the age of the deceased as 34 years, a sum of Rs. 2 lacs will be paid

by the appellant-insurance company not to the respondent nos. 1to 5 herein

and who were the claimants before the Commissioner, but to the respondent

no.6 which is the insured under the insurance policy.




FAO 445/2010                                                             Page 5 of 6
 7.       In view of the above, the appeal is allowed to the limited extent that

there will be recalculation of the compensation taking the age of the

deceased as 34 years and the factor as 199.40. Rest of the contentions urged

on behalf of the appellant are rejected.


8.       In case the respondent nos. 1 to 5 have withdrawn the total amount of

compensation including a sum of Rs.2 lacs, it will always be open to the

employer-respondent no.6 herein to recover this amount from the respondent

nos. 1 to 5 herein.

9.       In case, after recalculation, it is found that the appellant-insurance

company has deposited an amount in excess with the Commissioner, such

excess amount will be refunded to the appellant-insurance company

alongwith interest accrued thereon if any. Parties are left to bear their own

costs.




MARCH 05, 2014                                 VALMIKI J. MEHTA, J.

ib