Madhya Pradesh High Court
Oriental Insurance Co. Ltd. vs Amar Babu on 11 December, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11 th OF DECEMBER, 2023
MISC. APPEAL No. 4352 of 2011
BETWEEN:-
ORIENTAL INSURANCE CO. LTD. T.B. HUB, DUTT
BUILDING, IN FRONT OF RAILWAY STANDIUM, CIVIL
LINES JABALPUR THROUGH AUTHORISED SIGNATORY
ORIENTAL INSURANCE COMPANY (I/C T.P. HUB)
SENIOR DIVISIONAL MANAGER, 1561, NAPIER TOWN,
DOCTOR VARAT ROAD JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI D.N. SHUKLA - ADVOCATE )
AND
1. AMAR BABU S/O SEKH CHHOTE, AGED ABOUT 50
YEARS, VILL. GILGODI TEH. LAKHNADAUN SEONI
(MADHYA PRADESH)
2. SMT. KHERUN BEE W/O AMAR BABU, AGED
ABOUT 48 YEARS, VILLAGE TILGODI TAHSIL
LAKHNADON, SEONI (MADHYA PRADESH)
3. SARABJEET SINGH ANAND S/O SURENDRA SINGH
A N A N D 11 MILE STONE BHERAGHAT ROAD,
TEWAR JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENTS 1 AND 2 BY SHRI NARENDRA CHOUHAN - ADVOCATE)
This appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
This appeal is filed by the insurance company being aggrieved of the
award dated 14.09.2011 passed by Commissioner, Workmen Compensation/
Labour Court, Jabalpur in Case No.100/2010/Fatal.
Coordinate Bench of this Court admitted this appeal on 04.11.2011 on
the following terms:
"Whether the allowance paid, would be included in the definition of
wages as defined under Section 2 (m) of Workmen's Compensation Act, 1923
?"
Shri Shukla, learned counsel for the appellant/ insurance company
submits that definition of wages as given under Section 2 (m) of the Workmen's
Compensation Act, 1923 is in two parts. It includes any privilege or benefit
which is capable of being estimated in money but excludes travelling allowance
or the value for any travelling concession or contribution paid by the employer
of an employee towards any pension or provident fund or a sum paid to an
employee to cover any special expenses entailed by him by the nature of his
employment.
Reading this definition, it is submitted that since in the evidence of the
claimant it has come that claimant was getting Rs.4000/- as wages and
Rs.3,000/- as allowances, therefore, that amount of Rs.3,000/- by virtue of
nature of engagement of the deceased as a driver is to be construed as travelling
allowance and is required to be excluded from the purview of wages which are
to be taken for the purposes of computation of compensation, payable in
favour of the claimant.
It is also submitted by Shri Shukla that 12% interest on the amount of
compensation cannot be fastened on the insurance company and it is for the
employer to bear that liability.
Shri Chouhan, learned counsel for the claimants supports impugned
award and submits that he has filed a cross-objection but that cross-objection,
at this stage, he would like to withdraw.
Accordingly, his prayer to withdraw cross objection is allowed and the
cross-objection is dismissed as withdrawn.
After hearing learned counsel for the parties and going through the
record, it is evident that definition of wages as given under Section 2 (m) of the
Workmen's Compensation Act, 1923 is unambiguous. It includes all the
privileges and benefits which are capable of being estimated in money but
excludes the travelling allowances, etc. In the present case, onus was on the
insurance company to have examined the employer to extract the exact nature
of amount which was payable to the deceased employee. If they could prove
that Rs.3,000/- were paid to the driver in the form a travelling allowance then
yes, they would have entitled to its deduction while making computation of
compensation in favour of the claimants. However, apparently no evidence was
led by the insurance company to prove the nature of allowances and, therefore,
Workmen's Compensation Act being a beneficial legislation, presumption is to
be drawn in favour of the claimant and not in favour of the employer or
insurance company.
Shri Shukla has placed reliance on the decision of the Bombay High
Court, Bench at Nagpur in Zubeda BAno and Others v. the Divisional
Controller, Maharashtra STate Road TRansport Corporation, Nagpur and
Others, 1990 LAB.I.C. 1781 to buttress his claim but this judgment has no
application to the facts and circumstances of the case inasmuch as definition of
wages as given in Section 2 (m) of the Act has two components and admittedly
the onus is on the employer/insurer to discharge that burden by proving that
allowances which have been mentioned by the claimants were in the form of
second part of the definition which will fall within the exclusion clause and not
in the inclusion clause. Therefore, this judgment having no application to the
facts and circumstances of the case, is not applicable to the facts of the present
case.
Shri Chouhan, at this stage, handed over a decision of Hon'ble the
Supreme Court in the case of Surekha v. Branch Manager, National
Insurance Company Ltd. (SLP (C) No.36105 of 2014 decided on 03.08.2017)
to point out that allowances are to be construed to be one which are added
towards the computation of compensation and they cannot be excluded.
Looking to the fact that definition is in two parts and wages include
privilege and benefit capable of being estimated in money and only exclude
travelling allowance or the value of travelling concession or contribution paid by
the employer towards any pension or pension fund, or sum paid by the
employee to cover any special expenses entailed on him by the nature of his
employment, in absence of any evidence to the contrary, allowances will be
treated to be one, falling under the definition of privilege or benefit capable of
being estimated in money and, therefore, the impugned judgment, when tested,
cannot be said to be illegal or arbitrary. Therefore, the substantial question of
law framed by a coordinate Bench of this Court is answered in the following
terms:
"That unless and until, specific evidence is led by the employer
or the insurer covering the risk, to the effect that the part of the
allowance, in whole or in part, covered travelling allowance
or contribution paid by the employer of the employee towards
any pension or provident fund or to cover any special expenses
entailed on the employee by the nature of his employment, the
perks which are given, will be treated as part of the wages."
In the above terms, the substantial question is answered. The appeal fails
and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
ks
