Assam State Electricity Board vs Renu Borah

Nishitendu Chaudhury, J.

This is an appeal under section 30 of the Workmen''s Compensation Act, 1923 challenging judgment and award dated 19.3.2004 passed by Workmen''s Compensation Commissioner (hereinafter referred to as ''the WC Commissioner), Nagaon in Case No. N.W.C. 161/2002. The case of the claimant was that her husband Late Pradip Borah was engaged as driver of the Assam State Electricity Board (ASEB), Paltanbazar. While on duty and was driving the vehicle No. ASN-4250, a truck of the ASEB, there was an accident on 11.8.1999 owing to mechanical defect. The vehicle capsized in the road side and thereupon the driver died on the spot. Pursuant to the accident information report, G.D. entry No. 265 dated 11.8.1999 was registered by Raha P.S. The deceased left behind the claimant-wife as well as seven (7) sons all of whom were minor at the relevant time.

The ASEB appeared and submitted written statement and thereupon the claimant led evidence and exhibited 3 (three) documents. On perusal of the evidence led by the claimant, the learned WC Commissioner arrived at the finding that vide Ext. 3 pay certificate issued by the Assistant Executive Engineer of the appellant herein, the deceased was drawing a salary of Rs. 7,882/- per month. However, in view of Explanation II under section 4 of the Act, the monthly wage of the workman was taken at Rs. 4,000/- per month. Thereupon considering the age of the deceased as 45 years relevant factor was worked out and thereupon the following calculation was made:--

50% of Rs. 4,000/- x 169.44 = Rs. 3,38,880/-

In addition to this a sum of Rs. 2,500/- was also awarded under section 4(4) of the Workmen''s Compensation Act, 1923. The learned WC Commissioner also allowed interest at the rate of 12% from the date of accident till realisation. This judgment and award has been brought under challenge in the present appeal.

On 24.6.2004 this appeal was admitted, however, without framing any substantial question of law and it was directed that during pendency of the appeal claimant be permitted to withdraw 50% of the awarded amount.

I have heard Mr. D Bhattacharyya, learned Counsel for the appellant. None appears for the respondent although notice was duly served. Mr. Bhattacharyya submits that the whole awarded amount was deposited by the appellant with the WC Commissioner and thereupon 50% of the amount was withdrawn by the claimant on 24.8.2004. Only 50% of the awarded amount remains undisbursed. He submits that he has no objection in regard to interest part. However, the very calculation made by the WC Commissioner is based on erroneous construction of Explanation II of section 4 of the Workmen''s Compensation Act. He submits that the accident took place on 11.8.1999 and at that relevant time Explanation II under section 4 stipulated monthly wage of a workman to be Rs. 2,000/- only. By an amendment made in the Act vide Act 46 of 2000, this explanation was amended and Rs. 2,000/- was substituted by Rs. 4,000/-. This amendment came into effect on 8.12.2000 and so the amended provision was not applicable to the case in hand. The substantial question of law that falls for consideration in this case, therefore, is framed as follows:--

Whether finding of the Workmen''s Compensation Commissioner that wage of the workman under Explanation II of section 4 of the Workmen''s Compensation Act, 1923 is perverse?

Section 4 of the Workmen''s Compensation Act, 1923 (hereinafter referred to as ''the Act) lays down the procedure for computing compensation. Under clause 1(a) of section 4, in case of death, an amount equal to 50% of the monthly wage of the deceased-workman multiplied by relevant factor or an amount of Rs. 80,000/- whichever is more shall be the amount of compensation. It has been provided that where the monthly wages of a workman exceeds Rs. 4,000/- his monthly wage for the purpose of Clause (a) and (b) shall be deemed to be Rs. 4,000/- only. It appears that prior to 8.12.2000 Explanation II stipulated Rs. 2,000/- to be the monthly wage of the workman. By Act 30 of 1995, amount of Rs. 2,000/- was substituted for Rs. 1,000/-. By a further amendment made on 8.12.2000, the amount of Rs. 2,000/- has been enhanced to Rs. 4,000/-. So Rs. 4,000/- became monthly wage of a workman under Explanation II only w.e.f. 8.12.2000. In the case in hand, accident had taken place on 11.8.1999 which is after 15.9.1995 and prior to 8.12.2000. This being the position, the law at the relevant time stipulated Rs. 2,000/- to be the monthly wage of a workman under Explanation II to section 4 of the Act. The learned WC Commissioner appears to have perused the Act as it stood after 8.12.2000 and presumed the monthly wage to be Rs. 4,000/-. The learned Tribunal, therefore, clearly committed error in construing Explanation II of section 4 of the Act. The accident having taken place on 11.8.1999, the law in force at that time should be applicable to the same. Accordingly, the sole substantial question of law is decided in affirmative in favour of the appellant holding that the correct monthly wage of the workman should have been Rs. 2,000/- and not Rs. 4,000/- as has been presumed by the learned WC Commissioner. The appeal accordingly stands allowed and the impugned judgment and award is set aside. The matter stands remanded to the WC Commissioner for calculating the amount of compensation in terms of the provision of Explanation II of section 4 of the Act as it was in force as on the date of accident i.e. 11.8.1999. The same shall be done within a period of 2 (two) months from the date of receipt of records. Till the calculation is made, the amount lying with the WC Commissioner, Nagaon, shall not be disbursed.