New India Assurance Co.Ltd vs Govindi Devi & Others

Sandeep Sharma,J

CMP(M) No.1383 of 2018

Mr.Anil Tomar and Mr.Rajesh Prakash, Advocates, have put in appearance on behalf of respondents No.1 to 4 and respondent No.5 respectively. They state that they do not intend to file reply to the application and have no objection in case, prayer made in the application is allowed.

Averments contained in the application, which is duly supported by an affidavit, clearly reveal that delay in maintaining the accompanying appeal is neither intentional nor willful, rather same has occurred on account of circumstances, which were completely beyond the control of the applicant and as such, same deserves to be condoned.

Accordingly, for the reasons stated in the application, delay in filing the appeal, which in my considered view, has sufficiently been explained, is condoned. The application stands disposed of.

Appeal be registered.

FAO No.355 of 2019

Instant appeal arises out of award dated 15.06.2018 passed by learned Senior Civil Judge, Mandi, District Mandi, exercising powers of Commissioner, under Workmen's Compensation Act, 1923, now Employees Compensation Act, (hereinafter referred to as the 'Act'), whereby a sum of Rs.8,06,640/- alongwith interest @ 12% per annum w.e.f. 14.08.2010 i.e. one month after the death of respondent till the date of payment, came to be awarded in favour of respondents-claimants No.1 to 4.

Deceased Muni Lal was conductor/cleaner with vehicle No.HP-65-2175, owned by respondent No.5 Avtar Singh. On 14.07.2010, above named Muni Lal died during the course of employment with respondent No.5, when he was returning in the truck from Leh after delivering of consignment. Respondents-claimants No.1 to 4, who are legal representatives of deceased, filed a claim petition under Section 22 of the Act read with Rule 20(1) of the Workmen's Compensation Rules, 1924 (hereinafter referred to as the 'Rules') seeking therein compensation to the tune of Rs.20 lacs, in the Court of learned Commissioner for Workmen's Compensation, Mandi.

On consideration of both oral or documentary evidence, while taking into account the earning of deceased at Rs.8,000/- per month, learned Commissioner, has awarded a sum of Rs.8,06,640/- alongwith interest at the rate of 12% per annum w.e.f. 14.08.2010 i.e. one month after the death of respondent till the deposit of the amount.

Questioning the quantum of compensation awarded by the Commissioner below, appellant-Insurance Company has filed the instant appeal on the ground that since claimants in the claim petition themselves claimed that monthly income of deceased Muni Lal was Rs.5,000/-per month including diet money and as such, there was no occasion for the Court below to take into consideration earning of deceased @ Rs.8,000/- per month. In view aforesaid stand/ground taken by the appellant-Insurance Company, following substantial questions of law are taken up for consideration of this Court:-

"1. Whether learned Commissioner under the Employees' Compensation Act, 1923 is right in taking the income of the deceased as Rs.8,000/- per month instead of Rs.5,000/-pleaded and proved by the claimant?

Whether the learned Commissioner below has wrongly invoked Section 4(1B) of the Employees Compensation Act, 1923 when monthly wages are proved by the claimant under Section 4(1) of the Act?"

I have heard learned counsel for the parties and gone through the record of the case.

Mr. Praneet Gupta, learned counsel appearing for the appellant-Insurance Company, contended that the Commissioner below has erroneously fixed the wages of the deceased at Rs.8,000/- by invoking the amended provision of Section 4(1) Explanation-II of the Act in the absence of any material evidence produced either by the employer/owner of the vehicle or the claimants. Mr.Praneet Gupta, learned counsel, further contended that the Commissioner ought not to have invoked the provisions of Minimum Wages Act for the purpose of fixing the wages.

To the contrary, Shri Anil Tomar, learned counsel appearing for respondents No.1 to 4, contended that Section 4(1) of the Act, provides compensation where death results from the injury, equal to 50% of the monthly wages of the deceased multiplied by the relevant factor. He further contended that Explanation-II of Section 4(1) of the Act, which restricts the monthly wages of the workman at Rs.4,000/- only even if it exceeds more than Rs.4000/-, has been subsequently removed/omitted by an amendment Act 45 of 2009 with effect from 31.05.2010 and by Notification, issued by the Ministry of Labour and Employment, published in the Gazette of India, dated 31.10.2010, the monthly wages have been prescribed at Rs.8,000/-.

Mr.Tomar vehemently contended that bare perusal of aforesaid amendment clearly suggests that no amount less than Rs.8,000/- can be taken into consideration while determining the compensation taking into consideration the monthly wages. He contended that bare perusal of impugned award itself suggests that though claimants averred in the claim petition that deceased was getting wages to the tune of Rs.5,000/- per month, but, since salary certificate of deceased was not proved on record, learned Commissioner below rightly took into consideration wages of the deceased at Rs.8,000/- per month in terms of Notification dated 31.10.2010.

Lastly, Mr.Tomar contended that when the statute prescribed the said wages now at Rs.8,000/-, it should be construed and interpreted as "minimum", it means not less than Rs.8,000/-, however, as no restriction attached such as in previous clause, which restricted by stating that "the monthly wages workman at Rs.4,000/-only" and the present ceiling fixing Rs.8,000/- cannot be construed as maximum and hence, while interpreting the statute, which is a beneficial legislation, this Court has to liberally consider the case of the claimants in view of the provisions of Explanation-II and the Notification dated 31.05.2010 issued by Central Government.

Having heard learned counsel for the parties, this Court is of the view that the learned Commissioner below rightly took into consideration a sum of Rs.8,000/-while determining the compensation on account of death of deceased Muni Lal. From the perusal of record, it is not in dispute that the deceased Muni Lal died while he was in employment. It is specific contention of claimants that deceased workman was earning Rs.5,000/- per month as a cleaner. Now question which remains to be decided in the instant proceedings is that "Whether Commissioner below could take into consideration a sum of Rs.8,000/- for determining the amount of compensation in terms of Notification dated 31.05.2010, especially when as per own case of claimants monthly wages of deceased Muni Lal was Rs.5,000/- including diet money?

Before exploring the answer to aforesaid question, it would be apt to take note of Section 4(1) of the Act, which reads as under:-

"Section 4(1): Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

a) Where death results from the injury

an amount equal to (fifty per cent) of the monthly wages of the deceased (employee) multiplied by the relevant factor

or

an amount of eighty thousand rupees, whichever is more;

(b) Where permanent total disablement results from the injury

an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor,

or

an amount of ninety thousand rupees, whichever is more:

(Provided that the Central Government may, by notification in the Official Gazette, from time to time, enhance the amount of compensation mentioned in clauses (a) and (b).)

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 the 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 four thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be four thousand rupees only."

From the reading of the above, it is clear that the compensation for the death of the workman, is an amount equal to 50% of the monthly wages of the deceased or an amount of eighty thousand rupees, whichever is more. However, Explanation-II clearly specified and restricted that the monthly wages of a workman shall be deemed to be four thousand rupees only even if exceeds four thousand.

Subsequently, by Notification, dated 21.5.2010, by Act 45 of 2009, the above Section has been amended (w.e.f.18.1.2010) as follows:

a) Where death results from the injury

an amount equal to (fifty per cent) of the monthly wages of the deceased (employee) multiplied by the relevant factor

or

an amount of one lakh and twenty thousand rupees, whichever is more;

(b) Where permanent total disablement results from the injury

an amount equal to sixty per cent of the monthly wages of the injured workman multiplied by the relevant factor,

or

an amount of one lakh and forty thousand rupees, whichever is more;

Explanation I.- For the purposes of clause (a) and clause (b) "relevant factor" in relation to a employee means the factor specified in the second column of the 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 employee on his last birthday immediately preceding the date on which the compensation fell due.

Explanation II omitted by Act 45 of 2009, S.7 (w.e.f.18.1.2010)"

It is also not in dispute that vide Notification dated 31.05.2010 S.O.1258(E), in exercise of the powers conferred by sub-section (1b) of Section 4 of the Employees Compensation Act, 1923 (8 of 1923), the Central Government has specified Rs.8,000/- as minimum wages for the purpose of sub-section (1) of Section 4.

From the bare perusal of aforesaid provisions of law as well as subsequent Notification dated 31.05.2010, it is explicit that for the death of the employee, an amount equal to 50% of his monthly wages multiplied by relevant factor or Rs.1,20,000/- (Rs.one lakh and twenty thousand) whichever is more, has to be awarded towards compensation and for the purpose of computing such compensation, monthly wages at a sum of Rs.8,000/- has to be considered. It is pertinent to mention here that prior to aforesaid amendment, the said wages were fixed at a sum of Rs.4,000/- and Explanation-II specifically restricted the amount to be Rs.4,000/- only even if it exceeds. However, by virtue of Act 45 of 2009, the restriction as referred above came to be omitted and in its place, a sum of Rs.8,000/-has been substituted by way of Notification taken note hereinabove. It is not in dispute that while amending the said clause, no restriction has been attached or specified that if the monthly wages of the deceased employee exceeds Rs.8,000/ - whether it should be considered at Rs.8,000/-only and, as such, there appears to be considerable force in the arguments of learned counsel appearing for the claimants that since no restriction is imposed in case the monthly wages of the deceased employee exceeds to Rs.8,000/- liberal interpretation has to be made especially when the Act itself is a beneficial legislation.

At this stage it would be appropriate to refer para-4 of the "Statement of Objects and Reasons" mentioned in the Bill for amending the Workmen's Compensation Act, 1923 (22nd December, 2009), as follows:-

"Statement of Objects and Reasons:-

The Central Government has decided to introduce the Workmen's Compensation (Amendment) Bill, 2009, on the lines of the Workmen's Compensation (Amendment) Bill, 2008 introduced in the 14th Lok Sabha incorporating therein certain recommendation of the Standing Committee proposing to amend the Workmen's Compensation Act, 1923 which inter alia, makes provision,-

(a) for amendment in long title and the provisions of the aforesaid Act so as to substitute "Workman" by the "employee";

(b) for enhancement of the minimum rates of compensation payable to a worker from eighty thousand rupees to one lakh twenty thousand rupees for death and from ninety thousand rupees to one lakh forty thousand rupees for permanent disability and to empower the Central Government to enhance the minimum rates of the said compensation from time to time.

(c) to confer power upon the Central Government to specify the monthly wages in relation to an employee for the purpose of the aforesaid compensation."

Bare perusal of aforesaid 'Statement of Objects and Reasons' suggests that the amendment came into force while empowering the Central Government to enhance the minimum rates of the said compensation from time to time as well as to specify the monthly wages in relation to an employee for the purpose of the aforesaid compensation, meaning thereby fixing the minimum wages by way of amendment at Rs.8000/- is only for the purpose of determining the compensation under the Workmen's Compensation Act and there is scope of further enhancement from time to time. Although, the Act is a beneficial one and, thus, deserves liberal construction with a view to implement the legislative intent, but, it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or doubt therein, the court would not travel beyond the same and extend the scope of the statute.

In the case at hand, since the intent of the legislature is clear while amending the Act to enhance the minimum rates of the compensation from time to time as well as to specify the monthly wages in relation to an employee for the purpose of the said compensation, liberal interpretation beyond the prescription made in the Act, is not at all required. It is pertinent to note here that while amending the Act, the legislature has consciously in its wisdom, omitted the Explanation-II of Section 4-A of the Act only with a view to enhance the minimum rates of compensation. At this stage, it would be relevant to take note of the decision of Hon'ble Supreme Court in State of Jharkhand v. Govind Singh, (2005) 10 SCC 437, wherein the Hon'ble Apex Court has held as under:-

"15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See Frankfurter: "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p. 51.)

Reliance is also placed on State v. Parmeshwaran Subramani, (2009) 9 SCC 729, wherein the Hon'ble Apex Court has held as under:

"19. In a plethora of cases, it has been stated that where the language is clear, the intention of the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assumed deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be. The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgment because such course would be subversive of constitutional harmony (see Union of India v. Deoki Nandan Aggarwa, 1992 supp.(1) SCC 323)."

Reliance is also placed upon the pronouncement of Hon'ble the Supreme Court in Utkal Contractors and Joinery Pvt.Ltd. & Others vs. State of Orissa & others, (1987) 3 SCC 279, wherein, the Hon'ble Apex Court has observed as under:

"9. ... ... ... A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance:

"...the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of an Act may well indicate that wide or general words should be given a restrictive meaning".

In The Chairman, Board of Mining Examination and Chief Inspector of Mines and another versus Ramjee, AIR 1977 SC 965, the Hon'ble Apex Court has held as under:

"5. .... Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfillment as social engineering depends on its sensitized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary grasp of rules can misfire or even backfire, as in this case. It is a notorious fact that collieries Indian collieries, both before and after nationalisation are strategic sources of the nation's fuel and, operationally, areas of tragic human hazards. We need coal, we want miners to bring it from the bowels of the earth. The dangerous technology is not yet so perfect in India as to ensure risk-free extraction. And, after many lives have been lost by the neglect of operatives or supervisors or supine bosses, follows the scenario of tears and torndown home, a little monetary compensation, a flutter in Parliament, a long-drawn-out Commission, a routine report about lapses and recipes and the little man's life-or-death lot continuing to receive callous consideration at the hands of the law, law- maker, law-enforcer - this sombre colliery disaster sequence must educate and inform the jurisprudence of high-risk operations. ... ...".

It is quiet apparent from the aforesaid exposition of law that where the "language" is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. Having regard to the above, this Court is unable to accept the contention of Shri Praneet Gupta, learned counsel appearing for the Insurance Company, that the Court below ought not to have taken into consideration a sum of Rs.8,000/-, which has otherwise been prescribed as minimum wages for the purpose of determining the compensation, especially when claimants themselves claimed that monthly wages of deceased were Rs.5,000/- per month including diet money. Accordingly, this Court is of the view that the monthly wages specified by the statute by way of amendment at Rs.8000/- is appropriate for consideration for the purpose of computing the compensation and as such, the learned Court below has rightly calculated the compensation by considering the wages of the deceased workman at Rs.8000/-, which in no manner requires any interference.

As regards the issue of payment of interest is concerned, the Hon'ble Supreme Court in Prakash Garg vs. Premi Devi and Others, 1998 (1) ACJ 1, after examining the entire scheme of the Workmen's Compensation Act, has held that:-

I. Payment of interest and penalty are two distinct liabilities arising under the Workmen Compensation Act.

II. Penalty is not a part and parcel of the legal liability of the employer to compensate his employee and since the insurer is under contractual obligation to indemnify the employer for his legal liability the insurer is not liable to pay the penalty.

III. Liability to pay interest is part and parcel of legal liability of the employer to pay compensation upon default of payment of that amount within one month.

Therefore, claim for compensation payable under the Workmen's Compensation Act along with interest thereon will have to be made good by the Insurance Company jointly with the insured employer. Therefore, the Insurance Company is liable to pay the interest.

In the case at hand, as has been taken note hereinabove, though claimants claimed that Muni Lal was getting Rs.5,000/- per month as wages including diet money, but since claimants failed to prove the same by placing on record salary certificate before the Court below, the learned Court below rightly returned the findings that it is not established that the monthly wages of the deceased was Rs.5,000/- and as such, rightly took into consideration a sum of Rs.8,000/- as wages in terms of amended Notification dated 31.05.2010. It is not in dispute that Notification dated 31.05.2010 came into effect w.e.f. 31.05.2010, whereas in the present case compensation fell due on 14.07.2010, meaning thereby admittedly on 14.07.2010 wages fixed by the Central Government were required to be taken into consideration for the purpose of determining the compensation of the Act, especially, when Explanation-II of Section 4 of the Act was omitted. No other point is urged. Both the questions are answered accordingly.

In the totality of the facts and circumstances of the case, the impugned award/order passed by learned Commissioner below is upheld and the present appeal is dismissed. It is further ordered that the award amount alongwith up to date interest shall be released in favour of respondents No.1 and 4 as per their shares, which have otherwise been defined in the award passed by the Court below, by remitting the same in their saving bank accounts, details whereof shall be furnished by them within a period of two weeks and the amount falling in the shares of respondents No.2 and 3 may be kept in FDRs till they attain majority.

Interim order, if any, is vacated. All miscellaneous applications are disposed of.