appellants, has relied upon the judgment of the Honourable
Apex Court in the case of New India Assurance Co.Ltd. Vs.
V.K.Neelkandan and others ( (1999) 2 SCC 256 ) to
support his contention that the benefit of increased limit of
deemed income of a workman was liable to be extended in the
case in hand. In view of the judgment of the Honourable Apex,
Court relied upon by the appellants, in the case of New India
Assurance Co.Ltd. Vs. V.K.Neelkandan and others (cited
supra), however, the interpretation as has been made by the
learned Commissioner that the increase in the deemed income
vide notification 31st May, 2010, has to be prospectively made
applicable, cannot be sustained has to be rejected. The
Honourable Apex Court in the judgment cited supra has held
that the Workmen's Compensation Act, being a Special
Legislation for the benefit of the labour, any benefit, if is
conferred on the workmen, and the said benefit is available on
the date when the case is finally adjudicated, the said benefit
should be extended to the workmen.
11. The facts in the case of New India Assurance
Co.Ltd. Vs. V.K.Neelkandan and others (cited supra), were
thus: the accident had taken place in the year 1981. As per
the law operating at the relevant time , the deemed limit for
the income of the workman was Rs.1,000/- per month. The
compensation in the said matter was, however, claimed stating
the wages of the deceased workman to be Rs.1800/- per
month, which were being actually received by the said
deceased workman. The compensation was, however, assessed
by the Commissioner under the Act, deeming the wages as
Rs.1,000/- per month. In the meanwhile, Section 4 of the Act
was amended in 1995 by Amendment Act (30 of 1995) whereunder
the deemed income was increased from Rs.1,000/- to
Rs.2,000/-. In the aforesaid background, the Honourable Apex
Court ruled that the benefit conferred on the workman available
on the date when the case is finally adjudicated was liable to be
extended to the workman. The Honourable Apex Court,
therefore, enhanced the amount of compensation by calculating
the same on the basis of the actual wages of Rs.8000/- being
drawn by the deceased workman.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.3103 OF 2015
Varsha Santosh Birajdar,
VERSUS
Sujata Ashok Pokharkar,
CORAM: P.R.BORA, J.
Date of pronouncing judgment: 5/4/2016
Citation:2016(3) ALLMR362
1. Aggrieved by the judgment and award passed in
Workmen's Compensation Application No.37/2010 on 4th April,
2013, by the learned Commissioner for Employees
Compensation, and Civil Judge, Senior Division, Osmanabad,
(hereinafter referred to as Commissioner ) the original
claimants have preferred the present appeal.
2. The appellants had filed the aforesaid Workmen's
Compensation Application seeking compensation amounting to
Rs.7,00,000/- ( Rs. seven lacs) on account of accidental death
of their son. It was the contention of the appellants in the said
application that their deceased son, namely, Santosh Birajdar
was working as a Driver on Truck No.MH-18-A-7041 owned by
present respondent no.1. On 23.11.2009, while their deceased
son was on duty, in the course of his employment, the alleged
accident happened and in the accident so happened, their son
suffered the death. It was the further contention of the
appellants that the deceased was earning Rs.6,000/- per month
by way of his monthly salary and was also being paid daily
Bhatta of Rs.30/-. It was also the case of the appellants that
the truck involved in the accident was insured with respondent
no.2 Insurance Company.
3. Before the Workmen's Compensation Commissioner,
respondent no.1 had raised a plea that the deceased was not
employed by her at the relevant time but he had unauthorizedly
taken away the truck and the accident happened whereas it
was the case of respondent no.2 Insurance Company that the
offending truck was never insured with it.
4. The appellants i.e. original claimants adduced their
oral evidence and also produced on record certain documents
before the learned Commissioner. The learned Commissioner,
on assessment of the oral and documentary evidence brought
before him, has exonerated respondent No.2 Insurance
Company from the liability of paying any compensation as
claimed in the application and held respondent no.1 i.e. owner
of the truck liable to pay the compensation to the appellants /
claimants. Learned Commissioner assessed the compensation
to the tune of Rs.4,11,990/- and directed respondent no.1 to
pay the same to the claimants with interest thereon at the rate
of Rs.7.5 per cent per annum from the date of filing of the
petition till its realization. Learned Commissioner has saddled
respondent no.1 with penalty of Rs.2, 05, 950/- and has
directed to pay the said amount also to the appellants with the
interest thereon at the rate of 7.5 per cent from the date of
filing of the petition till its realization. Out of the amount so
awarded, an amount of Rs.1,50,000/- was directed to be
deposited in the name of petitioner no.2 till he attains the age
of majority and the balance amount was directed to be paid in
equal shares to petitioner nos. 1, 3 and 4.
5. Shri Gastgar, learned Counsel appearing for the
appellants / original claimants submitted that the learned
Commissioner has grossly erred in assessing the compensation
by holding the income of the deceased to the tune of Rs.4,000/-
per month. Learned Counsel submitted that on the date of
decision of the application as well as on the date of filing of the
application, in view of the notification dated 31st May, 2010,
the ceiling limit on the income for assessing the compensation
under the Employees Compensation Act, 1923, was enhanced
to Rs.8,000/- per month and, as such, the learned
Commissioner must have assessed the compensation by
holding the income of the deceased to the tune of Rs.8,000/-
per month.
6. The submission so made and the objection so raised
by the learned Counsel appearing for the appellants has been
strongly resisted by Shri R.S.Deshmukh, learned Counsel
appearing for respondent no.1 i.e. the owner of the vehicle
involved in the accident. Shri R.S.Deshmukh, learned
Counsel, submitted that the notification dated 31st May, 2010,
cannot be retrospectively made applicable. Learned Counsel
further submitted that since the accident had occurred on
23.11.2009, the income of the deceased was liable to be held in
accordance with the limit of ceiling existing at that time i.e.
Rs.4,000/- per month. According to the learned Counsel, the
learned Commissioner has not, therefore, committed any
mistake and the compensation assessed by the learned
Commissioner is correct and need not be enhanced.
7. Shri Gastgar, learned Counsel appearing for the
appellants, has relied upon the judgment of the Honourable
Apex Court in the case of New India Assurance Co.Ltd. Vs.
V.K.Neelkandan and others ( (1999) 2 SCC 256 ) to
support his contention that the benefit of increased limit of
deemed income of a workman was liable to be extended in the
case in hand.
8. During the course of the arguments, the learned
Counsel for the appellant brought to my notice that original
respondent no.1 i.e. the owner of the truck involved in the
alleged accident had preferred First Appeal No.1522/2013,
challenging the judgment passed in WCA No.37/2010 and that
this Court has dismissed the said appeal vide order passed on
16th May, 2015. The learned Counsel has placed on record
copy of the said judgment. Shri R.S.Deshmukh, learned
Counsel, has not disputed the fact so stated. Thus, the only
question which now remains, pertains to the quantum of
compensation.
9. From the pleadings raised in the memo of appeal
and the points raised in the arguments advanced by the learned
Counsel appearing for the respective parties, the question for
my determination in the present appeal is:
" Whether the benefit of Government Notification
dated 31.5.2010 whereby the monthly wages for the
purpose of sub-section (1) of Section 4 of the Employees
Compensation Act, 1923, are prescribed at the enhanced
rate of Rs.8000/- can be extended while assessing the
compensation in the present case though the accident in
question, had occurred on 23.11.2009 i.e. prior to coming
into effect of the notification dated 31.5.2010 ?"
Learned Commissioner has assessed the compensation holding
the income of the deceased to the tune of Rs.4,000/- per month
having regard to the income limit provided under Section 4 of
the Employees Compensation Act. It is true that the limit of
the deemed income for assessment of compensation under the
provisions of the Workmen's Compensation Act was increased
to Rs.8,000/- per month vide notification dated 31st May, 2010
whereas the accident in question had occurred on 23.11.2009.
Therefore, ostensibly, it appears that the learned Commissioner
has not committed any mistake in assessing the compensation
holding the income of the deceased on the basis of deemed
income limit as was in existence on the date of the accident.
Respondent no.1 has also advanced similar argument and has
supported the award passed by the learned Commissioner.
10. In view of the judgment of the Honourable Apex,
Court relied upon by the appellants, in the case of New India
Assurance Co.Ltd. Vs. V.K.Neelkandan and others (cited
supra), however, the interpretation as has been made by the
learned Commissioner that the increase in the deemed income
vide notification 31st May, 2010, has to be prospectively made
applicable, cannot be sustained has to be rejected. The
Honourable Apex Court in the judgment cited supra has held
that the Workmen's Compensation Act, being a Special
Legislation for the benefit of the labour, any benefit, if is
conferred on the workmen, and the said benefit is available on
the date when the case is finally adjudicated, the said benefit
should be extended to the workmen.
11. The facts in the case of New India Assurance
Co.Ltd. Vs. V.K.Neelkandan and others (cited supra), were
thus: the accident had taken place in the year 1981. As per
the law operating at the relevant time , the deemed limit for
the income of the workman was Rs.1,000/- per month. The
compensation in the said matter was, however, claimed stating
the wages of the deceased workman to be Rs.1800/- per
month, which were being actually received by the said
deceased workman. The compensation was, however, assessed
by the Commissioner under the Act, deeming the wages as
Rs.1,000/- per month. In the meanwhile, Section 4 of the Act
was amended in 1995 by Amendment Act (30 of 1995) whereunder
the deemed income was increased from Rs.1,000/- to
Rs.2,000/-. In the aforesaid background, the Honourable Apex
Court ruled that the benefit conferred on the workman available
on the date when the case is finally adjudicated was liable to be
extended to the workman. The Honourable Apex Court,
therefore, enhanced the amount of compensation by calculating
the same on the basis of the actual wages of Rs.8000/- being
drawn by the deceased workman.
12. In the instant matter also though the salary income
of the deceased workman was proved to be Rs.6000/- per
month, the learned Tribunal has assessed the compensation
deeming the income of the deceased workman to the tune of
Rs.4,000/- per month having regard to the limit of income as
provided under Section 4 of the Act, which was in existence on
the date of the accident. Admittedly, the Workmen's
Compensation Application was filed on 7.8.2010 and was
decided by the learned Commissioner on 4.4.2013. It is thus
evident that in view of the judgment of the Honourable Apex
Court cited supra, the Tribunal must have extended the benefit
as was available on the date when the application so filed by
the claimant was finally adjudicated. The award passed by the
Commissioner, therefore, has to be modified.
13. Learned Counsel for the appellant was persuasive in
his submission that the compensation needs to be assessed by
deeming the income of the deceased workman to the tune of
Rs.8,000/- per month in view of increase in the deemed income
vide notification dated 31st May, 2010. I am, however, not
impressed with the submission so made. Admittedly, the
income of the deceased, as stated by the claimants themselves,
was Rs.6,000/- per month. The compensation, therefore, will
have to be assessed on the basis of the said income. Even in
the aforesaid case cited supra, the Honourable Apex Court
assessed the compensation on the basis of the actual wages
which were being drawn by the deceased workman.
14. Holding the income of the deceased to the tune of
Rs.6,000/- per month, the compensation payable to the
claimants would come to Rs.6,17,880/- (50 % of the wages
i.e. Rs.3,000/- multiplied by the multiplicant of 205.96 as per
the age of 31 years of the deceased). Simultaneously, the
penalty amount will also stand increased proportionately to
Rs.3,08,940/-.
I hold the appellants i.e. the original claimants entitled for
the enhanced amount of compensation as well as the penalty as
aforesaid from respondent no.1.
The appeal stands allowed to the aforesaid extent.
The award passed in W.C.A.No.37/2010 by the learned
Commissioner for Employee's Compensation & Civil Judge,
Senior Division, Osmanabad, dated 4.4.2013, stands modified
to the aforesaid extent.
(P.R.BORA)
JUDGE
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