Himachal Pradesh High Court
National Insurance Company Ltd vs Trishala Devi & Others on 5 May, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 558 of 2017
Decided on: 05.05.2025
National Insurance Company Ltd.
....Appellant
Versus
Trishala Devi & others.
...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the appellant : Ms. Devyani Sharma, Sr.Advocate
with Mr. Shivam Sharma, Advocate,
For respondents No. : Mr. Ajay Sharma, Sr. Advocate
1 to 4 with Mr. Atharv Sharma,Advocate.
For respondents No.5 : Mr. T.S. Chauhan, Sr. Advocate
&6 with Mr. Surya Chauhan, Advocate.
Satyen Vaidya, Judge (Oral)
The challenge in the instant appeal is to the award dated
27.10.2016, passed by the learned Commissioner under the Employees
Compensation Act, 1923, Amb, District Una (hereinafter referred to as
the Commissioner) in case No. 3/WCC/09.
2. The appellant/insurer by way of instant appeal has
assailed the award as to quantum of compensation awarded by the
learned Commissioner below.
Whether reporters of the local papers may be allowed to see the judgment?
2 ( 2025:HHC:12855 )
3. The claim petition was filed under Section 22 of the
Employees Compensation Act by the legal representatives of deceased
Sh. Vijay Kumar, who had died on 13.5.2007 while driving Truck No.
HP-20A-8962 in the course of his employment with the employer.
4. The Truck No. HP-20A-8962 was owned by the employer
and the deceased Vijay Kumar had been employed as a driver to drive
the same.
5. It was claimed in the claim petition that the deceased Vijay
Kumar was being paid salary of Rs.5000/- per month by the employer.
In addition, he was being paid a sum of Rs.50/- per day for daily diet
expenses. In this manner the total monthly wages of the deceased were
claimed at Rs.6500/-
6. The truck was alleged to be insured with the National
Insurance Company Limited (for short the insurer).
7. The deceased was stated to be 42 years old at the time of
accident.
8. On the above premise the compensation was claimed.
9. The employer and insurer both contested the claim
petition by filing their respective replies. The employer though admitted
the factum of deceased being its employee, but denied the payment of
wages as claimed by the claimants. As per employer, the deceased was
being paid a sum of Rs.3000/- per month as wages.
10. The insurer raised the objection as to maintainability of
the petition. It was also alleged that the deceased was not holding a
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valid driving license at the time of accident and for such reason the
claimants were stated to be not entitled to the compensation.
11. Learned Commissioner held that the salary of the
deceased was Rs.5000/- per month and in addition, he was being paid
Rs.1500/- per month as diet money. Keeping in view the capping of
income at Rs.4000/- per month as per Section 4 of the Employees
Compensation Act, learned Commissioner held that the salary of the
deceased could not be taken to be more than Rs.4000/- per month.
However, the learned Commissioner added Rs.1500/- per month as
diet money and thus held the total wages/emoluments of the deceased
at Rs.5500/. The said figure was then divided by two and multiplied by
a factor 178.49. Accordingly, the claimants were held entitled to a sum
of Rs.4,90,847/-. In addition, the claimants have also been held to be
entitled to interest at the rate of Rs.12% per annual from 27.09.2007
till the passing of award. Penalty of Rs. 1,00,000/- has also been
imposed.
12. The insurer has been held liable to pay the compensation
along with interest amount and the employer has been held liable to
pay the penalty.
13. The appeal has been admitted on 21.12.2017 on the
substantial questions of law :
1. Whether impugned judgment/award is against the
provisions of Sections 3,4 and4-A of the
Employee's Compensation Act, 1923?
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2. Whether calculation of compensation awarded
by learned Commissioner under Employee's
Compensation Act, Amb is not in consonance
with law of land as settled by the Apex Court?
3. Whether the appellant had proved on record that
deceased driver was not holding a valid and
effective driving licence at the time of the accident,
the original licence having been proved to be fake,
its subsequent renewal could not validate it
and the appellant company had to be exonerated?
4. Whether learned Commissioner has committed
mistake in awarding interest from the date of
application?
14. I have heard the learned counsel for the parties and have
gone through the record of the case.
15. The first question regarding which the parties have raised
dispute is with respect to the monthly wages of the deceased at the
time of accident. Learned Senior counsel for the insurer has placed the
reliance on the version put forth by the employer and on its basis, it
has been contended that the learned Commissioner has erred in
assessing the wages of the deceased higher than what had been
admitted by the employer. The reliance has also been placed on the
reply filed by the employer as also statement of RW2. On the other
hand, learned Senior counsel for the claimants has submitted that the
stand taken by the employer cannot be considered as a gospel truth
for the reasons firstly that the Director of M/s Kushal Roller Flour
Mills Pvt Ltd. (employer) had not stepped into the witness box and
secondly though the alleged representative of said Company had
appeared as RW-2 but his statement also cannot be taken as a
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conclusive proof of the fact as he had failed to produce any record of
the company to justify the stand. He has further submitted that in
such circumstances, there is no reason to disbelieve PW-2, who is wife
of deceased Vijay Kumar and will be the best person to state as to what
salary or wages were being earned by her husband prior to his death.
16. Having considered rival submissions, I find the
contentions raised on behalf of claimants to be more plausible. The
employer is a Private Limited Company. Indisputably the deceased
Vijay Kumar was employed with the said Company. RW-2 while
appearing as witness stated while being cross examined that there was
no record of the employment or wages being paid to the deceased Vijay
Kumar in the Company, which is highly unbelievable. The possibility of
the record of Company being suppressed cannot be denied. In such
circumstances, to disbelieve the statement of the wife of deceased will
be unjustified. The view taken by the learned Tribunal is a possible
view and there is no substantive material on record to dislodge such a
view.
17. However, another contention of the learned counsel for the
insurer is that once Section 4 of the Act prescribed a capping of
maximum amount of Rs. 4,000/- per month, learned Tribunal could
not have added anything more to such amount under any other head.
She has placed reliance on Section 2 (m) of the Employees
Compensation Act which reads as under:
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"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
*[employee] towards any pension or provident fund or a
sum paid to a *[employee] to cover any special expenses
entailed on him by the nature of his employment;"
18. Keeping in view of the provisions of Section 2 (m) of the Act,
the impugned award needs interference to the extent that monthly
wages of the deceased could not be taken as Rs.5500/-. There was no
evidence to suggest that any special expenses entailed from the nature
of employment of the deceased.
19. Thus, the monthly wages of the deceased could not exceed
Rs. 4000/-.
20. The deceased had completed the age of 42 years on his
last birthday immediately preceding the date on which the
compensation fell due, therefore, learned Tribunal has rightly applied
the factor of 178.49 as per fourth schedule to the Act ibid.
21. Thus, the amount of compensation payable to the
claimants shall be as under:
Rs. 2000 X 178.49=Rs.3,56,980/-
22. In addition, the claimants shall also be entitled to
statutory interest at the rate of 12% per annum on the compensation
amount w.e.f. the date of accident till the date of deposit and both
these sums shall be paid by insurer as the insurer has not been able to
prove any violation of the contract of insurance.
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23. The employer/insured had filed cross-objections No.91 of
2018 assailing the imposition of penalty by learned Commissioner.
However, cross-objections were dismissed as withdrawn by the
employer/insured vide order dated 31.05.2018. Thereafter, the
employer/insured has not assailed the award passed by the learned
Commissioner in any proceeding, therefore, the said award has
attained finality against the employer/insured.
24. The substantial questions of law are decided accordingly.
25. Accordingly, the instant appeal is partially allowed. The
impugned award dated 27.10.2016 passed by the learned
Commissioner,under the Employees Compensation Act, Amb, District
Una, Himachal Pradesh in Case No. 3/WCC/09 shall stand modified in
terms of what has been held above.
26. Pending application(s), if any also stand disposed of.
(Satyen Vaidya)
05th May, 2025 Judge
(veena)
