Hon'ble Mahendra Dayal,J.
Heard Shri Shakeel Ahmad Ansari, learned counsel for the appellant and Shri Shikhar Anand, learned counsel appearing on behalf of opposite party no.2. No one has appeared on behalf of opposite party no.1 in sptie of sufficient service of notice upon her.
Feeling aggrieved by the order dated 31.3.2008, passed by the Commissioner Workmen Compensation/ Deputy Labour Commissioner, Faizabad, in Case No. 9/2007, the claimant/appellant has filed this appeal under Section 30 of Workmen Compensation Act.
From the perusal of the record we find that the appellant applied for compensation under the Workmen Compensation Act, 1923 with the allegation that her husband late Ram Shankar Gupta was driver of Truck No. U.P. 42 B- 2294 and on 8.5.2007 some unknown persons in order to commit loot, killed him. The deceased was about 43 years of age at the time of incident and his monthly income was Rs. 4500/-. He was also having a valid driving licence at the time of incident.
The opposite party no.1 while admitting the factum of occurrence and the licence of the deceased contended that the age of the deceased was about 52 years and his wages were only Rs. 1200/- per month. The opposite party no.2 also contested the claim and denied the occurrence. The opposite party no.2 also denied the other papers such as Registration Certificate, permit, fitness, driving licence etc. The learned Commissioner on the basis of the evidence on record recorded a finding that the age of the deceased was about 45 years and he was getting Rs. 1200/- per month as his wages. Considering the age of wages of the deceased, the Commissioner determined the compensation as 1,01,664/- and directed the opposite party no.2 to pay the amount of compensation.
Learned counsel for the appellant has assailed the impugned order, mainly on the ground that the learned Commissioner has wrongly taken into consideration the wages of the deceased as Rs. 1200/- per month while as a matter of fact he was receiving Rs. 4500/- per month and the opposite party no1. only in order to escape the liability of payment of compensation has wrongly stated that Rs. 1200/- per month was being paid to the deceased as his wages. It is also a submission on behalf of the appellant that the deceased being driver of the jeep was a skilled workman and as per the provisions of Minimum Wages Act, his monthly wages cannot be less than Rs. 3700/- per month. The learned Commissioner has wrongly taken into account the monthly wages of the deceased on the basis of solitary statement of opposite party no.1 and ignored the statutory provision of Minimum Wages Act and other documentary evidence.
In support of his argument the learned counsel has placed reliance on a decision reported in 2013 (31) LCD 2022; Monu Rout and another Vs. Satya Pradyumna mOhapatra and others. In this case the Hon'ble Apex Court after considering the submissions of the parties has held that the working of the driver is a skilled job and the Tribunal ought to have taken the salary of the deceased driver at Rs. 6000/- per month.
The learned counsel for the appellant on the basis of the law laid down by the Hon'ble Supreme Court has argued that the learned Tribunal at least ought to have taken into account the minimum wages prescribed under the Minimum Wages Act for determining just and reasonable compensation to be paid to the appellant but the learned Commissioner has wrongly believed the solitary statement of opposite party no.1 who in order to escape the liability stated before the Commissioner that only Rs. 1200/- per month was being paid to the deceased.
The learned counsel for Insurance Company has, on the other hand, submitted that the appellant did not give any documentary or satisfactory evidence to prove that the deceased was being paid Rs. 4500/- per month as wages and as such the learned Commissioner had no other option except to believe the statement of employer who stated on oath that only Rs. 1200/- was being paid to the deceased at the time of accident. Thus the learned Commissioner has rightly believed the testimony of the employer and awarded compensation on the basis of the fact that the deceased was receiving only Rs. 1200/- as wages.
After hearing the learned counsel for the parties and going through the law laid down by the Apex Court, we are of the view that the accident is alleged to have taken place in the year 2007 and if it is believed that the deceased was getting Rs. 1200/- per month then the daily wage of the deceased would come to Rs. 40/- per day.
The learned counsel for the appellant has placed before us the minimum wages fixed under the Minimum Wages Act, according to which in the case skilled labour the monthly minimum wages is Rs. 3290/- per month + dearness allowance at the Rs. Rs. 450/- per month. It is not in dispute that the deceased was skilled workman being driver of a Four Wheeler and as such the Tribunal ought to have considered that the payment of only Rs. 1200/- per month as wages to a skilled workman was inadequate especially looking to his nature of job. The Hon'ble Supreme Court in the case of the accident which took place in the year 2004 has determined Rs. 6000/- per month as wages for a skilled worker. In the case in hand it is specific case of the appellant that deceased was receiving Rs. 4500/- per month as wages and the learned Commissioner has not given any satisfactory reason as to why the testimony of the appellant was discarded and the solitary statement of the employer be believed.
We have discussed above and in view of the law laid down by the Apex Court we are of the view that the learned Commissioner has wrongly determined the monthly wages of the deceased at the rate of Rs. 1200/- per month. The learned Commissioner ought to have determined compensation taken into account the minimum wages as prescribed under the Act. Thus the compensation awarded by the Tribunal is not only erroneous in law but also suffers from error in law. The Tribunal ought to have taken the salary of the deceased driver at least at Rs. 4500/- by taking judicial notice of the fact that the post of a driver is a skilled job.
In view of the above, we modify the award passed by the learned Commissioner to the extent that the amount of compensation be determined on the basis of the monthly wages of the deceased at the rate of Rs. 4500/-. The amount of compensation which the appellant is entitled to get comes to Rs.3,81,240/-. The opposite party no.2 New India Assurance Company Limited is directed to deposit the amount of compensation within a month with the office of the Deputy Labour Commissioner, Faizabad after adjusting the amount, if any, deposited by them.
With the aforesaid observations, the First Appeal From Order is finally disposed of.
Order Date :- 9.9.2014 Muk