Court No. - 22
RESERVED ON 17.12.2018 DELIVERED ON 25.02.2019
Case :- FIRST APPEAL FROM ORDER No. - 1801 of 2004
Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Kashmiri & Others Counsel for Appellant :- Arun Kumar Shukla
Hon'ble Salil Kumar Rai,J.
The case was heard in the revised call. No one appeared for the respondents.
In view of the office reports dated 27.11.2003, 23.2.2004 and 30.11.2018, service of notice on the respondents is deemed sufficient.
Heard Sri Arun Kumar Shukla, counsel for the appellant. The present appeal has been filed under Section 30 of the Workmen's Compensation Act, 1923 (now Employees Compensation Act, 1923 and hereinafter referred to as, 'Act, 1923') against the judgment and award dated 30.12.2002 passed by the Workmen's Compensation Commissioner, District Moradabad in Case No. W.C.A. 26 of 2000.
Case No. W.C.A. 26 of 2000 was instituted by respondent nos. 1 and 2 against respondent no. 3 as well as the appellant praying for a compensation of Rs.4,00,000/- along with an interest calculated at the rate of 18% per annum and an additional relief of Rs.50,000/- for the death of their son. It was alleged in the claim petition that Vinod Kumar, the son of respondent nos. 1 and 2, was employed as Driver with respondent no. 3 and died on 29.12.1999 in an accident arising out of and in the course of employment of their son with respondent no. 3. It was stated in the claim petition that at the time of his death, the deceased was 25 years old and was drawing a salary of Rs.3,000/- per month. Despite notice, the respondent no. 3 did not appear in proceedings before the Compensation Commissioner and did not file any written statement contesting the claim of respondent nos. 1 and 2. The appellant, i.e., the Insurance Company filed their written statement denying the entitlement of the claimants to compensation as prayed by them in the claim petition.
On the pleadings of the parties, the Tribunal framed Issues on the entitlement of the claimants to compensation for the death of their son, the wages paid to the deceased by respondent no. 3, i.e. the employer, liability of the Insurance Company to pay compensation and the amount of compensation to which the claimants were entitled.
In its award dated 30.12.2002, the Tribunal held that, at the relevant time, Vinod Kumar, i.e., the deceased was employed as Driver with respondent no. 3 and died on 29.12.1999 in an accident which arose out of and in the course of employment of the deceased with respondent no. 3 and also held that the truck of respondent no. 3 which the deceased was driving at the time of accident was insured with the appellant- Insurance Company. The Tribunal also recorded a finding that at the time of accident, the deceased was drawing a salary of Rs.3,000/- per month and was, therefore, entitled to a compensation considering the aforesaid salary of the deceased and that the employer, i.e., respondent no. 3 was liable to pay penalty under Section 4-A (3) of the Act, 1923. The Tribunal computed the compensation by multiplying 50% of Rs.3,000/- with the relevant factor.
It has been argued by the counsel for the appellant that the award dated 30.12.2002 so far as it determines the compensation by multiplying the relevant factor with 50% of the salary i.e. Rs.3,000/- drawn by the deceased is illegal in as much as on 29th of December, 1999 i.e. on the date of accident and the death of the employee, the monthly wages of a workman for the purposes of determining compensation could not have exceeded Rs.2,000/-. It has been argued that in view of the aforesaid illegality committed by the Compensation Commissioner, the substantial question that arises in the case is 'whether the impugned order could be passed by calculating the compensation treating the monthly income of the deceased as Rs.3,000/- in contravention of the provisions of the Act, 1923 as they existed on the date of accident.' In support of his argument that the date of accident and not the date of adjudication is relevant for determination of the rights and liabilities of the parties and the compensation payable, the counsel for the appellant has relied upon the judgments of the Supreme Court in Kerala State Electricity Board & Anr. vs Vasala K. & Anr. 2000 (1) T.A.C. 6 (SC) and Oriental Insurance Company Ltd. vs Siby George & Ors. 2012 (4) T.A.C. 4 (SC).
I have considered the submissions of the counsel for the appellant and also perused the records available with the Court.
It is evident that the accident took place on 29.12.1999. In view of the judgments of the Supreme Court in Siby George (supra) and Vasala (supra), it is the date of accident and not the date of adjudication which is relevant to determine the compensation payable to the parties. The observations of the Supreme Court in paragraph no. 3 of Vasala (supra) are relevant for the purpose and are reproduced below:
“3. A four-Judge Bench of this Court in Pratap Narain Singh Deo v. Srinivas Sabata and another, 1976 (1) SCC 289 speaking through Shinghal, J., has held that an employer becomes liable to pay compensation as soon as the personal injury is caused to the workmen by the accident which arose out of and in the course of employment. Thus, the relevant date for determination of the rate of compensation, is the date of the accident and not the date of adjudication of the claim.”
(emphasis added) On the date of accident in the present case i.e. on 29.12.1999, Section 4 of the Act, 1923 read as follows:
“4. Amount of compensation. - (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :-
Explanation I.- For the purposes of clause (a) and clause (b), “relevant factor”, in relation to a workman means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due;
Explanation II.- Where the monthly wages of a workman exceed [two thousand rupees], his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be
[two thousand rupees] only,”
Subsequently, Explanation II to Section 4 of the Act, 1923 was amended by Workmen's Compensation Amended Act, 2000 and Rs.4,000/- was substituted in place of Rs.2,000/-. However, the amendment in Section 4 of the Act, 1923 was subsequent to the date of accident and does not have a retrospective effect, therefore, under Section 4 of the Act, 1923 as it existed on the date of accident, compensation had to be determined treating the monthly wages of the deceased as Rs.2,000/- and not Rs.3,000/- as has been done by the Tribunal in its impugned award.
For the aforesaid reason, the award of the Tribunal to the said extent is contrary to the Act, 1923 and is, thus, modified accordingly.
The matter is remanded back to the Tribunal to re- compute the compensation payable to the claimants according to the observations made above. It is clarified that the compensation amount re-determined by the Tribunal shall carry the same interest as previously awarded by the Tribunal. It is further clarified that this Court has not interfered so far as the impugned award imposes penalty on the employer i.e. respondent no. 3 as the award of the Tribunal imposing penalty on the employer has not been challenged by respondent no. 3.
For the aforesaid reasons, the appeal is allowed and the award of the Tribunal is modified to the extent stated above. The matter is remanded back to the Tribunal to re-determine the compensation within a period of three months from the date a certified copy of this order is produced before it.
Order Date :- 25.2.2019 Satyam