Gudi Devi Alias Guriya Devi vs Gopal Pandey
2021 Latest Caselaw 4318 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Misc. Appeal No. 75 of 2014

1. Gudi Devi alias Guriya Devi
2. Archana Kumari
3. Narayan Pandey                         ....   .... Appellants
                            Versus

1. Gopal Pandey
2. The New India Assurance Company Limited .... .... Respondents
                           ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellants : Mr. Alok Kumar Lal, Advocate For the Respondents : M/s Ganesh C. Jha, Advocate

C.A.V. ON 16.11.2021 PRONOUNCED ON 22 / 11 / 2021

1. This appeal has been preferred under Section 30(1)(a) of the

Employee's Compensation Act, 1923 for enhancement of award passed by

the Labour Court, Deoghar.

2. The brief facts of the case is that one Basant Pandey who was

working as a cleaner on a truck bearing Registration No JH 11 D-6418

died when the truck met with an accident on 31.5.2011 in which the

deceased was on duty as a cleaner Regarding which Birni P.S. Case

Number 60/2011 was registered.

3. Gudi Devi- widow of the deceased and his minor daughter and

aged father dependant of the deceased filed a claim case for compensation

under the Workmen's Compensation Act 1923 against the owner and

insurer of the vehicle for a compensation of Rs.10,00,000/- with interest

@ 12% on the plea that deceased was working as a Khalasi in the truck on

a monthly salary of Rs.6,000/- plus Rs 50 per day.

4. The owner- O.P. No. 1 and the Insurance Company-OP No.2

appeared and filed their written statements. The factum of accident was

admitted, but was attributed to bad road condition. O.P. No. 1 further

pleaded that the deceased was only getting a monthly salary of Rs.3000/-

per month. The Insurance Company contested the claim but admitted that

the vehicle was under its insurance cover.

5. The learned court below held that the deceased died in an

accident while on duty of Khalasi in truck bearing Registration No. JH 11

D-6418 during the course of employment of O.P. No. 1- Gopal Pandey.

6. On the quantum of compensation the monthly income of the

cleaner was accepted to be Rs.6000/- per month but food allowance of

Rs.50/- per day was not accepted. Taking 33 years of the deceased at the

time of the accident a multiplier of 201.66 was applied as per Schedule

fourth of the Employee's Compensation Act. Taking Rs.3000/- as 50% of

the salary the final compensation amount was computed to Rs.604,980/-.

The interest at the rate of 9% per annum from the date of award till its

realization was passed.

7. The impugned order has been assailed on behalf of the

claimant's mainly on the ground that compensation amount has not been

calculated as per the provisions of Section 4(A) 3(a)(b) of the Employee's

Compensation Act, 1923. It is further argued that funeral expenses as

prescribed under Section 4(4) of the Employee's Compensation Act has

not been allowed. Further food allowance of Rs.50/- per day which is an

integral part of salary has also not been factored while calculating the

income. The salary of the deceased employee was Rs.4000/- per month +

Rs.30/- per day and as such the total monthly income was Rs.4000 +

Rs.900. As per the said Act, 1923, the interest at the rate of 12% from the

date of accident should have been allowed.

8. Learned counsel appearing on behalf of the Insurance Company

has contested the claim. It is submitted that Section 2(m) defines wages as

follows:

"Section 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 26[employee] towards any pension or provident fund or

a sum paid to a 26[employee] to cover any special expenses entailed

on him by the nature of his employment."

In view of the definition of wage the food allowance will not

come within the purview of wages and therefore the food allowance has

been rightly not accepted by the learned court below welcome computing

the compensation amount.

9. At the outset, it must be clarified that power of appellate court

to interfere under Section 30 of the Act is a limited one and it cannot

unsettle a finding of fact recorded by the court below on the basis of co-

gent evidence in appeal, simply because the appellate court hold a differ-

ent opinion on the fact in issue. It has been held by Hon'ble the Apex

Court in (2017) 1 SCC 45 Golla Rajanna and others Vs Divisional

Manager which is as under:

"10. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on percen- tage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."

In view of the above ratio decided by the Apex court, the

appellate court has to confine itself to the substantial question of law

raised in appeal.

10. Under the aforesaid facts and circumstances, the following sub-

stantial question of law raised on behalf of the appellant is considered:

i. Whether the claimant is entitled to get funeral expenses in view of

the mandatory provision as laid down under sections 4(4) of the Act

1923)?

ii. Whether, the per day food allowance of Rs.30 paid to the workmen

comes within the meaning of salary/wages in view of section 2 (m)

of the Act, 1923?

iii. Whether the claimant is entitled to get interest from the judgment

debtor at the rate of 12% per annum from the date of accident?

iv. Whether in view of the provisions laid down in Section 4A(3)(a)(b)

of the said Act, 1923 the applicants are entitled to get the amount of

penalty from the employer?

11. After having considered the rival submissions advanced on

behalf of both sides, I find that claimants are entitled to compensation of

Rs 5000/ under the head of funeral expenses.

12. On the second question formulated above, I do not find in the

definition of wages quoted above to exclude daily allowance of Rs.30/-

being paid for as the food allowance. Under the circumstance, I find merit

in the contention raised on behalf of the claimants that the food allowance

of Rs.50/- per day, i.e. Rs.1500/- per month in the income of the deceased,

should have been included in the monthly income. The witnesses have

consistently stated that the monthly salary of the deceased was Rs.6000/-

which has been accepted by the learned lower court. Adding Rs. 1500 the

monthly income will work out to Rs.7500/-.

13. Interest awarded should be just and reasonable from the date of

accident. On the point of interest Hon'ble the Apex Court held in K.

Sivaraman v. P. Sathishkumar, (2020) 4 SCC 594 that that compensa-

tion will be payable as applicable on the date of the accident with interest

as may be considered reasonable from time to time on the same pattern as

in accident claim cases. In this case the interest was held to be payable @

12% p.a. from the date of the accident.

In view the above ratio, the claimants will be entitled to 12% per an-

num from the date of accident.

14. On the penalty claimed from the owner of the vehicle, I find

that claimants have failed to make out any special case to impose penalty

on the owner which can be made in the event of any inordinate delay or

dilatory adopted by the employer.

15. In the light of the above principles, the claimants shall be

entitled to enhanced compensation as follows:

Monthly income Rs 7500/2= Rs 3750

Taking factor of 201.66 for the age of 33 years the final

compensation amount payable under Section 4(1)(a) of the Employee's

Compensation Act will work out to Rs.3750/- x 201.66 = Rs7,56,225/-

plus Rs. 5000 as funeral expenses = Rs 7,61,225/- and the claimants shall

also be entitled to interest at the rate of 12% on the compensation amount

from the date of accident i.e. 31.05.2011.

16. The Insurance Company shall draw an account payee check of

Rs. 1,00,000/- in favour of Claimant no.3- Narayan Pandey. The Insurance

Company shall further drawn an account payee check of Rs.6,61,225/-

and at the rate of 12 % from the date of accident on the total compensation

amount till its realization in the name of claimant no. 1-Gudi Devi @

Guriya Devi, who will receive the amount for herself and on behalf of her

minor daughter claimant no. 2-Archana Kumari. Out of this amount, a

fixed deposit of Rs. 3,00,000/- jointly made in the name of claimant nos. 1

and 2 will be made till the time claimant no. 2 attains majority.

17. The payment of the Cheques to be made to the learned Court

below for being disbursed to the claimants by the Insurance Company

within four weeks from this order.

18. In the result, the appeal is partly allowed.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 22nd November, 2021 NAFR / AKT