Rajasthan High Court - Jodhpur

Asha vs Sikandar Bhai (2024:Rj-Jd:40273) on 26 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:40273]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Misc. Appeal No. 2210/2019

1.       Asha W/o Mohd. Hussain Modasiya, Aged About 48 Years,
         R/o Peeth, Tehsil - Simalwada, Disrict- Dungarpur (Raj.).
2.       Mohd. Hussain S/o Saddique Hazi Modasiya, Aged About
         52    Years,     R/o      Peeth,      Tehsil      -   Simalwada,       Disrict-
         Dungarpur (Raj.).
                                                                        ----Appellants
                                        Versus
1.       Sikandar Bhai S/o Ahmed Bhai Dadhaliyawala, R/o
         Nakshband Society, Modasa, District - Arawali, Gujrat.
         (Employer)
2.       The     New      India     Insurance         Company          Ltd.,   Through
         Regional Manager, Bapu Bazar, Udaipur. (Insurer)
                                                                      ----Respondents


For Appellant(s)              :     Mr. RS Mankad for
                                    Appellants/Claimants
For Respondent(s)             :     Mr. Santosh Choudhary for
                                    Respondent no. 2



                HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

26/09/2024

1. The instant misc. appeal has been filed by the

appellants/claimants, seeking enhancement of the compensation,

under Section 30, Employees Compensation Act, 1923(hereinafter

as 'the Act'), against the judgment and award dated

24.04.2019(hereinafter as 'impugned award') passed by the

Employees Compensation Commissioner, Udaipur(hereinafter as

'the commissioner') in Case No. 05/2016 W.C..

2. Briefly stated the facts of the case are that Late Mr.

Mohammed Raees(hereinafter as 'the deceased') was employed as

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a driver by the respondent no. 1/Employer for his truck bearing

registration no. GJ9-Y-9984(hereinafter as 'the vehicle') and the

deceased used to receive Salary of Rs. 6000/- per month and Rs.

100/- per day as daily bhatta(daily allowance). On 22.11.2013,

the deceased, during the course of employment, was driving the

vehicle to transport the cotton from Maharashtra to Mehsana,

Beejapur and near Satapura Circle the vehicle turned turtle and as

a result of the accident the deceased met his demise. Thereafter,

the claim petition(Case no. 05/2016 W.C.) was filed by the

dependants of the deceased i.e., Appellant no.1(Mother of the

deceased) and Appellant no.2(Father of the deceased) claiming

compensation to the tune of Rs. 8,85,480/- and Rs. 4,42,740/- as

Penalty along with interest.

3. The respondent no. 2/insurance company filed reply to the

claim petition before the commissioner denying the averments

made therein. However, as the respondent no. 1/employer was

not present before the commissioner even after notices of the

claim petition being duly served, vide order dated 11.09.2017 ex-

parte proceedings were initiated against the respondent no.

1/employer.

4. On the basis of pleadings of the parties the commissioner

framed four issues. The appellants/claimants produced affidavit of

Mohd. Hussain(Appellant no. 2 herein) and apart from it total 13

documentary evidences were produced. However, no evidence

was led by the respondents before the commissioner.

5. After hearing the parties, the commissioner partly allowed

the claim petition filed by the appellants and vide the impugned

award, awarded compensation to the tune of Rs. 5,88,920/- along

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with 12% interest and held the respondents jointly and severally

liable to pay the awarded compensation and also held respondent

no. 1/employer liable to pay Rs. 1,16,784/- as penalty to the

appellants/claimants.

6. Aggrieved by the same the appellants/claimants have

preferred the instant misc. appeal seeking enhancement of the

compensation.

7. The learned counsel appearing on behalf of the

appellants/claimants submits that the commissioner erred in not

considering the daily allowance of Rs. 100/- per day while

determining the wages of the deceased as the daily allowance

comes within the definition of 'Wages' as provided in Section 2(1)

(m) of the Act.

8. Per contra, the learned counsel appearing on behalf of the

respondent no.2/insurance company refutes the contentions

raised by the learned counsel appearing on behalf of the

appellants/claimants.

9. Heard. Although, total seven substantial questions of law

have been suggested in the appeal preferred by the

appellants/claimants, however, the learned counsel appearing on

behalf of the appellants/claimants has restricted his submissions

to only one substantial question of law, which is as under:

(I) Whether daily bhatta(daily allowance) comes within the

meaning of the term 'wages' as defined under Section 2(1)(m) of

the Act?

10. Before adverting to answer this substantial question of law,

this court finds it apposite to refer to the relevant provision and

judgments.

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11. The term 'wages' has been defined under Section 2(1)(m) of

the Act, which is reproduced as under:

"(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 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;"

Thus, from the bare perusal of the above provision it is evident that the first part of the definition of 'wages' is of wide import and includes any privilege or benefit which is capable of being estimated in money, however, the second part of the definition of 'wages', excludes certain kinds of allowances/amount from the definition of 'wages' which can be enumerated as under for the sake of better understanding:

(i) Travelling allowance or value of any travelling concession, or

(ii) Contribution paid by the employer towards any pension or

provident fund, or

(iii) Any sum paid to an employee to cover special expenses

entailed on him by the nature of his employment.

12. Thus, the term 'wages' as provided under Section 2(1)(m) of

the Act includes any privilege or benefit which is capable of being

estimated in money and not falling under the excluded category of

allowances/amounts as have been provided in Section 2(1)(m) of

the Act. Since, wages includes any privilege or benefit which is

capable of being estimated in money and the deceased used to

get Rs. 100/- per day as daily allowance, the same is required to

be considered as privilege or benefit and is capable of being

estimated in money and ought to be considered as part of wages.

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13. Now, coming to the factual matrix of the case, this court

finds that the Commissioner did not take into account the daily

allowance of Rs. 100/- per day while assessing wages of the

deceased on the ground that such daily allowance cannot be

considered as part of wages of the deceased in light of the

judgment of the Hon'ble Supreme Court in Surekha v. National

Insurance Co. Ltd., (2017) 15 SCC 579. However, this court finds

that the Hon'ble Supreme Court in the aforesaid judgment has

nowhere held that daily allowance does not fall within the

definition of 'wages' as provided under Section 2(1)(m) of the Act.

Thus, the reliance placed by the Commissioner on the aforesaid

judgment is misplaced.

14. This court finds the deceased was employed on the vehicle

as a driver and was holding driving license of heavy motor

vehicles. Further, the appellants/claimants produced Salary Slip of

the deceased(Ex.6) before the commissioner, which mentions

Monthly salary of the deceased as Rs. 6000/- per month and an

amount of Rs. 100/- per day as daily allowance and the same has

been taken note of in the impugned award by the Commissioner.

On the other hand, the respondents did not produce any evidence

with respect to the wages of the deceased including the nature of

the daily allowance. Further, the respondents did not produce the

'registers and records of wages' of the deceased, which is required

to be maintained by the employers as per Section 13-A of the

Payment of Wages Act, 1936. Thus, in absence of any evidence

being produced with respect to the nature of the daily allowance

that the deceased used to receive, it cannot be assumed that such

daily allowance would fall within the excluded category of

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allowances/amounts as provided under Section 2(1)(m) of the Act

as the same would neither be in the interest of justice nor would

be in furtherance of the object of the Employees Compensation

Act, 1923, which has been enacted for the social welfare of the

employees. Thus, taking into consideration the definition of

'wages' as provided under Section 2(1)(m) of the Act, such 'daily

allowance' shall fall in the definition of 'wages' being benefit or

privilege being capable of estimated in money and not falling

under the excluded category of allowances/amounts as have been

provided in Section 2(1)(m) of the Act.

15. This court finds that the Hon'ble Supreme Court in Jaya

Biswal v. IFFCO Tokio General Insurance Co. Ltd., (2016) 11 SCC

201, while dealing with a similar issue, where the claimants as

well as employer did not produce any evidence with respect to the

amount of wages being earned by the deceased-employee, upheld

the finding of the Commissioner determining the wages of the

deceased-employee including the daily bhatta(daily allowance)

while observing that just because the employer failed to maintain

the records of wages of the deceased-employee, the claimants

cannot be made to suffer for it. The relevant paragraphs of the

aforesaid judgment are as under:

"28. 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

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deceased were accepted as Rs 4000 per month + daily bhatta of Rs 6000 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 the part of the High Court was absolutely uncalled for, especially in the light of the fact that Appellants 1 and 2 are old and have lost their elder son and they have become destitutes.

29. Further, under the Payment of Wages Act, 1936, the onus is on the employer to maintain the register and records of wages, Section 13-A 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 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."

16. Thus, in view of the discussion in the above paragraphs, this

court is of the view that daily allowance would also form part of

wages of the deceased-employees under Section 2(1)(m) of the

Act in absence of any evidence by the employer/insurer to the

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effect that such allowance falls within the excluded category of

allowances/amounts as provided therein. Therefore, the

substantial question of law is answered in affirmative in the above

terms.

17. This Court finds that the age of the deceased at the time of

accident was 36 years thus the applicable relevant factor to arrive

at the compensation payable under Section 4 of the Act is 194.64

as per Schedule IV of the Act. Further, the monthly wages

including daily allowance of the deceased comes as Rs. 9,000/-

[6000 + 100 (daily allowance)x 30].

18. Accordingly, the amount of compensation allowable to the

appellants/claimants is as under:

S. Particulars Awarded by the Awarded/Modified N Commissioner by this Court o.

1 Comensation as Rs. 5,83,920/- Rs.8,75,880/-

payable under Section 4(1)(a):

9000 x 50%(50% of the monthly wages) x 194.64(relevant factor) = 8,75,880/- [A]

2. Funeral Expenses [as Rs. 5000 Rs. 5000 per Section 4(4)] [B] Gross Total [A+B] Rs.5,88,920/- [C] Rs.8,80,880/- [D]

Enhanced Amount [D-C] Rs.2,91,960/-

19. Therefore, the instant misc. appeal stands partly allowed.

The appellants/claimants are thus held entitled to get enhanced

compensation of Rs.2,91,960/- along with interest @ 12% p.a.

with effect from the date of the accident. The impugned award

passed by the Commissioner stands modified accordingly. The

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appellants/claimants are held entitled to get the compensation in

the same manner as directed by the Commissioner. Further, the

penalty of Rs.1,16,784/- as awarded by the Commissioner in

favour of the appellants/claimants shall be payable by the

Respondent no. 1/Employer in the manner as directed by the

Commissioner. The amount of compensation or penalty if any paid