Beena P.K vs Sunilkumar L.K., (Deleted.)

G.Girish, J

Aggrieved by the inadequacy of compensation awarded by the Employees’ Compensation Commissioner, the wife, daughter and mother of deceased Subin, who succumbed to the injuries caused due to the accident occurred on 29.08.2011 during the course of his employment, have approached this Court with this appeal.

The abovesaid Subin who was employed by the first respondent as Cleaner in his Lorry, lost his life in the accident occurred at about 12:00 p.m on 29.08.2011 when the lorry in which he was travelling along with the driver, in the driver's cabin, rammed against another lorry running in front of it. Before the Employees’ Compensation Commissioner, the appellants claimed an amount of Rs.12,00,000/- as compensation from the respondent. The 1st respondent admitted the employer-employee relationship as well as the accident in which the predecessor-in-interest of the appellants lost his life during the course of his employment. However, it was stated that since the vehicle was validly insured with the 2nd respondent, the compensation, if any, liable to be paid by the 1st respondent, has to be indemnified by the 2nd respondent. The 2nd respondent admitted the insurance policy but denied the employer-employee relationship between the 1st respondent and the deceased. The learned Employees’ Compensation Commissioner framed four issues, and proceeded with the trial in which the 1st appellant was examined as AW1 and Exts.A1 to A5 were marked as documents from the part of the claimants. The respondents did not adduce any evidence. After an evaluation of the above evidence, the learned Employees’ Compensation Commissioner awarded an amount of Rs.8,39,680/- with interest @ 12% per annum as compensation and Rs.5,000/- as funeral expenses. The above order of the learned Employees’ Compensation Commissioner is under challenge in this appeal filed by the claimants therein.

As per order dated 25.10.2019, the 1st respondent was deleted from the array of respondents.

Heard the learned counsel for the appellants and the learned counsel for the 2nd respondent.

The one and only challenge raised by the appellants against the award of the Employees’ Compensation Commissioner is that the monthly wages of the deceased was wrongly assessed as Rs.8,000/- instead of the amount of Rs.9,500/- claimed by the appellants. It is seen from the impugned order of the learned Employees’ Compensation Commissioner that the said authority declined to accept the claim of the appellants that the deceased was having monthly wages @ Rs.9,500/- at the time of accident, by stating the reason that there was no evidence to substantiate the said claim. In the absence of evidence to establish the monthly wages of the deceased, the learned Employees’ Compensation Commissioner resorted to the notification dated 31.05.2010 published by the Ministry of Labour and Employment in the Gazette of India in exercise of the powers under Sub Section (1B) of Section 4 of the Employees’ Compensation Act, 1923 fixing the amount of Rs.8,000/- as monthly wages as envisaged under the said Section, and calculated the compensation amount to which the appellants were entitled. There is absolutely no illegality, error or impropriety in the course adopted by the learned Employees’ Compensation Commissioner in the above regard. The mere oral evidence of AW1 that the deceased was earning monthly wages of Rs.9,500/- cannot be the basis for the calculation of the compensation amount in the absence of any other convincing material pointing to the income which the deceased had been earning from his employment. Therefore, the impugned order of the learned Employees’ Compensation Commissioner fixing compensation at Rs.8,39,680/- by applying the prescribed formula, with the monthly wages of the deceased as Rs.8,000/-, and the relevant factor as 209.92 (as per Schedule IV of the Employees’ Compensation Act, 1923), is not liable to be interfered with in this appeal.

In the result, the appeal is hereby dismissed confirming the order of the Employees’ Compensation Commissioner dated 21.10.2016 in E.C.C.No.647/2014.