Oriental Insurance Company Hospital Road, Mandi-1, District Mandi (HP) vs Smt. Nardu Devi and Others

Deepak Gupta, J.—This appeal by the Insurance Company is directed against the award dated 29.6.2006 passed by the Commissioner, Workmen''s Compensation, whereby he awarded compensation of Rs. 2,85,360/- to the claimants and also awarded interest at the rate of 12% per annum from the date of accident till date of payment of awarded amount. At the time of admission of the appeal no substantial question of law was framed but as per the appellant, the following substantial questions of law arise in this case:-

(a) Whether the claimants have made out a good cause for condonation of delay in filing the petition?

(b) Whether the Tribunal below is right in fixing the salary of the deceased at Rs. 4,000.00 per month in the absence of any evidence on the record?

(c) Whether the evidence of the appellant was wrongly closed by the Tribunal below and proper opportunity was not afforded to the appellant for contesting the petition?

(d) Whether the liability to pay the interest has been properly fastened upon the appellant?

As far as the first question is concerned, there is no doubt that the petition has been filed beyond the period of limitation but the fact remains that most of the claimants were minor at the time of accident and in terms of Section 6 of the Limitation Act they could have filed the claim petition even after becoming major. The Workmen''s Compensation Act is an Act meant to give relief and succour to the heirs of deceased workman and the Insurance Company cannot be allowed to contest the case on the issue of limitation. Reference in this behalf may be made to the judgment of this Court in Bhuvneshwari Devi and others v. Murari Lal and another, 1985 ACJ 730wherein this Court has specifically held that the Insurance Company should not contest the claim petition on the ground of limitation.

The second issue raised is that there is no evidence whatsoever on record to show that the income of the deceased was Rs. 4,000/- per month. In this behalf, it is submitted that in fact in other cases the income was taken to be Rs. 2,000/- per month. The accident in question occurred in the year 2001. The claimants in the claim petition claimed that the deceased was getting monthly wages of Rs. 4,500/-. There is no written proof in this regard but the owner of the Maruti van, with which the deceased was employed, appeared in the witness box as RW- 2/1. He stated that he used to pay the driver a salary of Rs. 3,000/- per month and in addition thereto he used to pay daily allowance of Rs. 50/- per day for "Chai Pani etc". He has been crossexamined by the Insurance Company. He states that he maintained no record with regard to the salary being paid to the employee and has denied the suggestion that he was not paying salary of Rs. 3,000/- or daily allowance of Rs. 50/- per day. He has also denied the suggestion that in the enquiry held by the Insurance Company he had stated that the wages of the deceased were Rs. 2,000/- per month. He further states that he is not aware on what basis the matters filed before the Motor Accident Claims Tribunal arising out of the same accident were settled. The employer is the best person to tell about the salary. In case the Insurance Company disputed the statement of the employer it should have brought on record his statement, if any, made before the Motor Accident Claims Tribunal or the statements made to the Investigator or surveyor appointed by the Insurance Company. Reliance by the Insurance Company is placed on the statement of Shri Vishavjeet Tiwari counsel for respondent No. 2, wherein he stated that in case the matter is settled by taking wages of the deceased at Rs. 2,000/- per month his client would have no objection and he is willing to make such a statement. This statement was also not put to the respondent when he himself appeared in the witness box. Be that as it may, the statement at best only indicates that when talks for compromise were going on at that stage an offer was made that if the salary of the deceased is accepted at Rs. 2,000/- per month his client would have no objection. It is nowhere stated what were the actual wages which were being paid to the deceased.

The next issue as to whether the amount of Rs. 50/- per day should be included in wages or not. Shri G.C. Gupta, learned senior counsel for the Insurance Company urges that it is in the nature of travelling allowance to be paid as and when the driver drove the vehicle and hence cannot be included in wages. In my view this contention of Shri Gupta cannot be accepted. The employer has clearly stated that this amount was being paid for personal expenditure i.e. food etc. and therefore, the finding that the deceased was earning Rs. 4,000/- per month cannot be said to be based on no evidence nor can it be said that the finding is so perverse as to call for interference in an appeal filed under the Workmen''s Compensation Act.

The last question is whether the liability to pay the interest could have been fastened upon the appellant. The claimants filed the cover note but the Insurance Company did not even care to file the copy of the terms and conditions of the policy. No doubt if in the policy there is condition that the Insurance Company is not liable to pay interest then the Insurance Company in view of the well settled law cannot be burdened with the liability to pay interest, however, the Insurance Company should have proved the Policy which it has failed to do. Therefore, adverse inference will have to be drawn against it. Having held so, I am of the considered opinion that the learned Commissioner erred in awarding interest from the date of the accident. Normally, the practice being followed by this Court is that the interest is awarded from one month after the accident. But here is a case where the claimants came to Court after the period of limitation had expired and in such an eventuality I am of the considered opinion that the interest should be payable only from the date when the claim petition was filed and not from the date of accident. In view of above discussion, the appeal is allowed to the limited extent that the interest shall be payable from the date of filing of the petition under the Workmen''s Compensation Act i.e. 27.9.2004 till the payment or deposit of the amount. The Insurance Company may file an application along with calculation as to what is the excess amount so that the same can be refunded to it. No costs.