Smt. Meena Devi vs Rameshwar Prasad Yadav
2023 Latest Caselaw 632 Jhar

                                                  1                Miscellaneous Appeal No. 10 of 2014



                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Miscellaneous Appeal No. 10 of 2014
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1. Smt. Meena Devi, wife of late Sewa Rai

2. Fusani Kumari, daughter of late Sewa Rai

3. Damodar Rai, son of late Sewa Rai The appellant no.2 and 3 are presently minor as such they are being represented through their mother, natural guardian and next friend namely Smt. Meena Devi, the appellant no.1 herein Resident of Village-Rajpura, Tola -Bhimtari, P.O. Sankh, P.S. Gawan, District-Giridih ...... Appellants/Claimants

-Versus-

1. Rameshwar Prasad Yadav, son of late Somari Yadav

2. Bharat Yadav, son of late Somari Yadav

3. Shatrudhan Prasad Yadav, son of late Somari Yadav

4. Laxman Prasad Yadav, son of late Somari Yadav All residents of village Ghanghari Kurha, P.O. Sankh, P.S. Tisri, District Giridih (Jharkhand)

5. United India Insurance Company Limited, through Branch Manager, Giridih Branch, Post and P.S. Giridih, District-Giridih

6. United India Insurance Company Limited, through Divisional Manager, Divisional Office, Post and P.S. Dhanbad, District Dhanbad ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Arvind Kumar Lall, Advocate For Insurance Co. /R.No.5-6 : Mr. D.C. Ghosh, Advocate

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11/07.02.2023 Heard Mr. Arvind Kumar Lall, learned counsel for the appellants

and Mr. D.C. Ghosh, the learned counsel appearing for the respondent nos.5

and 6/Insurance company.

2. The notice upon the respondent nos.1 to 4 have been validly

served, however, nobody has appeared on behalf of the respondent nos.1 to

3. The present appeal has been filed against the judgment/award

dated 08.10.2013 passed in W.C. Case No.62 of 2011 by the learned

Presiding Officer, Labour Court, Deoghar.

4. The claim application was filed stating therein that on

11.03.2008 Etwari Rai, Chhoti Mahto, Seva Roy, Nunman Roy, Narayan 2 Miscellaneous Appeal No. 10 of 2014

Mahto, Sakaldeo Prasad Yadav were workmen under the instruction of their

employer Rameshwar Prasad Yadav and others, O.P.No.1 to 4 were working.

They used to help the employer in agricultural work and also other work. On

the fateful day all the workmen loaded cements, iron rods etc. of the

employer for the purposes of construction of a well in the agricultural land

in village Ghanghari -Kurha, P.S. Tisri, District Giridih. At about 9.30 P.M. on

11.3.2009 the tractor with trailor bearing No.BR-23A-2006 and BR-23A-2007

reached in Ambaghati on Ghangari-Kurha-Doranda Main Road under P.S.

Tisri, District Giridih and it turned turtle with the loaded articles and all the

above six workmen died on the spot from injuries. O.P.No.3 Satrudhan

Prasad Yadav was driving the vehicle at that time. Tisri P.S. Case No.514 of

2008 under section 279, 337, 338, 304 (A) of IPC was registered on

12.03.2008 on the statements of Guru Sahay Mahto. The police was

investigated the matter and submitted the charge-sheet.

5. On these pleadings, the notices were issued. The learned court

after considering the evidences on record has been pleased to direct to pay

a sum of Rs.3,39,000/- in favour of the claimants against the insurance

company payable within a period of 30 days from the date of the award. It

was further ordered that if the amount is not paid within the given time

period, the insurance company will also be liable to pay interest @ 12% per

annum from the date of award till the date of payment.

6. Mr. Arvind Kumar Lall, learned counsel for the appellants

submits that this appeal has been filed for enhancement of compensation

on the ground that interest has been provided from the date of award,

whereas it should be from the date of accident in light of Section

4A(3)(a)(b) of the Employee's Compensation Act, 1923. He further submits

that this aspect of the matter has been recently considered by the Hon'ble 3 Miscellaneous Appeal No. 10 of 2014

Supreme Court in P. Meenaraj v. P. Adigurusamy and another; (2022

ACJ 1001).

7. Paragraphs 4, 5 and 10 of the said judgment are quoted herein below:

"4. The relevant background aspects are that on 29.05.2010, the appellant, being an employee (driver) of the 1st respondent, suffered injuries in the course of employment and made a claim for compensation by way of Claim Petition No. 549 of 2010 under Section 10 of the Employees‟ Compensation Act, 1923, before the Commissioner concerned, who awarded a sum of Rs. 4,76,898/- (Rupees Four Lakhs Seventy-Six Thousand Eight Hundred and Ninety Eight) as compensation to the appellant with a direction to the 2nd respondent/insurer to deposit/pay the amount within 30 days from the date of receipt of copy of the order, failing which, to pay interest at the rate of 12% p.a. after the expiry of 30 days from the date of accident.

5. It appears that before the High Court, the only question raised on behalf of the appellant was as to the date from which interest fell due, as specifically noticed in paragraphs 3 and 4 of the impugned judgment. The High Court referred to an earlier decision of that Court in the case of M. Rajamanickam v. G. Shivasankar and Anr. (C.M.A. No. 166 of 2014) wherein, with reference to a decision of this Court in the case of Pratap Narain Singh Deo v. Shrinivas Sabata and Anr.: AIR 1976 SC 222, the High Court had held that in such compensation cases, if the compensation is not paid within the statutory period of 30 days, the liability of interest commences after the expiry of 30 days from the date of accident.

10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."

8. By way of relying on this judgment, learned counsel for the

appellants submits that that part of award is required to be modified.

9. Learned counsel for the appellants further submits that the

learned Labour Court has not given amount on the point of "Khoraki", which 4 Miscellaneous Appeal No. 10 of 2014

was required to be allowed in favour of the claimants in view of the

judgment of the Hon'ble Supreme Court in Jaya Biswal v. Branch

Manager, IFFCO Tokio General Insurance Company Limited; [2016

(1) T.A.C. 713 (SC)].

10. Paragraphs 15, 16 and 17 of the said judgment are quoted

herein below:

"15. 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/- . The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have become destitutes. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13A of which reads as under:

"13-A. Maintenance of registers and records-(1) Every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) Every register and record required to be maintained under this section shall, for the purposes of this Act, be preserved for a period of three years after the date of the last entry made therein."

From a perusal of the aforementioned section it becomes clear that the onus to maintain the wage roll was on the employer, i.e. Respondent No.2. Since in the instant case, the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it.

In view of the foregoing, the judgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.

5 Miscellaneous Appeal No. 10 of 2014

16. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to the Driver‟s License produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the „completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fell due‟, is 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:

Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-. Funeral expenses to the tune of Rs.25,000/- are also awarded.

17. The total amount of compensation payable thus comes to Rs.10,92,850/-.

Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs. 25,000/-."

11. On the other hand, Mr. D.C. Ghosh, learned counsel for

respondent nos. 5 and 6 submits that in absence of holding any employee-

employer relationship, the learned Labour Court has passed the order. He

further submits that the food allowance will not come under the provisions

of Employees Compensation Act in light of section 2(m) of the said Act.

12. In view of the above facts and submissions of the learned

counsel for the parties, the Court has gone through the materials on the

record. Admittedly, the accident took place on 11.3.2009. The tractor with

trailor in question was insured with United India Insurance Company

Limited. In spite of notice, respondent nos.1 to 4 have not appeared before

this Court. Respondent nos.1 to 4 have appeared before the Labour Court

and they have denied, however they have not made any evidence with

regard to employee-employer relationship. The Insurance Company has not

challenged the award and in that view of the matter, the contention of the

Insurance Company is not accepted by this Court. Admittedly, the claim was

allowed in favour of the claimants, however interest was allowed from the 6 Miscellaneous Appeal No. 10 of 2014

date of the award, which is required to be modified in view of the judgment

of the Hon'ble Supreme Court in P. Meenaraj (supra) from the date of

accident i.e. 11.3.2009. Accordingly, interest part is modified to that effect.

The learned Labour Court has not awarded the amount of Khoraki, which is

required to be modified in view of the judgment passed by the Hon'ble

Supreme Court in Jaya Biswal (supra).

13. Accordingly, the amount of compensation payable to the

appellants by United India Insurance Company Limited, is calculated as

under:

Monthly salary: Rs.4,000/- + Khoraki: Rs.750/- (@ Rs.25/-) (Total: Rs.4,750/-) According to Schedule IV of the Act, multiplier factor is 169.44 (keeping in view age of the deceased i.e. 45 years) = Rs.4,750/- x 50% x Rs.169.44 = Rs.4,02,420=00/- Thus, total amount of compensation payable comes to Rs.4,02,420=00.

14. The aforesaid amount will be payable from the date of accident

along with simple interest @ 12% per annum.

15. In that view of the matter, the appeal is allowed in above terms

and award is modified and the appeal stands disposed of.

16. Let the L.C.R. be sent back to the concerned court forthwith.

17. It is needless to say that the amount already paid was to be

deducted from the further payment to be made in terms of this order within

8 weeks from the date of receipt/production of a copy of this order.

(Sanjay Kumar Dwivedi, J.) SI/ ,,